Section 20 Accommodation . Consent needed or not?

Children – Public Law

20 September 2017

The recent case of London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26, is a helpful reminder that, although it is assumed that parental consent is needed before a child can be accommodated under S20, this is not always the case.

Although the case concerned an appeal in relation to claims made by the parents against the LA for misfeasance in public office, race discrimination, negligence and breach of duty under s.6 of HRA 1998 and Article 8 of ECHR it nevertheless highlights an important point regarding the consent required under s.20

In this case one of the children was arrested for shoplifting on 5th July (2007) and, following concerns raised about the safety and welfare of the children, the police exercised their protective powers and all eight children were made the subject of police protection orders. The parents were granted bail to return to the police station at a later date. A condition of bail for each parent was that there should be no unsupervised contact with any of the eight children.

The LA placed the children into foster care and, rather than issue proceedings for an EPO or ICO, decided to work with the parents to resolve their problems.

The following day, on 6th July 2007, the parents signed a form of safeguarding agreement, which purported to authorise LA to accommodate the children away from their parents. However, on 13th July the father’s solicitors wrote to the LA giving formal notice that father withdrew his consent to accommodation under s.20.

Although the LA’s Children’s Resources Panel decided to return the children the LA did not confirm in writing, although requested to do so, that the bail conditions were hindering the return of the children.

It was not until 6th September that the police agreed to vary the bail conditions.

The children were not returned home until 11th September.

On 5th October the parents were charged with and later indicted on serious charges of assault and neglect in relation to all eight children but the criminal proceedings were discontinued a year later by the CPS.

The parents then complained about how the LA had handled their case and started a process which lasted nearly six years including an application for JR.

The final decision of the LA Ombudsman (issued on 22nd April 2013) was that LA had been at fault in failing to record the parents’ consent and in failing to explain the process to them.

The parents did not at any time challenge the lawfulness of the decisions of the police.

At First Instance the parents successfully argued that the LA’s use of s.20 was unlawful on the basis that, although on the face of it they had consented, that consent was unfairly obtained and not true consent of any sort.

Findings were made against the LA and it was ordered to pay substantial damages and costs to both parents.

The LA appealed.

In giving the lead judgement Sir Brian Leverson considered the law and recent cases (some of which have been decided since this case started) and made a distinction with the facts of this particular case. He said that the necessary question to determine was, as a matter of law as opposed to subsequently identified good practice, what was required before the LA was permitted to accommodate the children pursuant to s.20.

After reviewing s.20(7) and (8) (the provisions relating to parental objection and/or removal) the judge said that the question was whether, upon expiry of the period of police protection, s.20(1)(c) applied in that the person who had been caring for the children was “prevented (whether or permanently and for whatever reason) from providing them with suitable accommodation or care” as a result of bail conditions.

If the relevant parent was so prevented, the LA “shall provide” and was, therefore, under a duty to provide accommodation for the children under s.20(1), (subject to parental objection and/removal).

In this case the parents were prevented from caring for their children by virtue of their bail conditions and neither parent had applied to vary those conditions.

The Court of Appeal found that it would have been wrong for the LA to have done anything it knew was inconsistent with the terms of the parents’ bail conditions.

Furthermore, at least at the beginning, the parents accommodation was not “suitable” for the purposes of s.20(1)(c).

The court noted that the word “consent” does not actually appear in s.20 and found that there was no express statutory requirement upon a LA to obtain a positive expression of parental consent before accommodating a child under s.20(1),(3),(4) or (5) “let alone a requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case law”.

Posing the question, whether the previous case law is binding authority that positive parental consent is required before a LA may accommodate a child under s.20, the Court of Appeal decided not, stating that it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances.

Although the court was anxious to make it clear that nothing it said was intended to detract from or alter any “good practice guidance” it was necessary for the parents to go further than maintain that the actions of the LA fell short of such “good practice” and that the LA must be seen to have acted in breach of the terms of the statute.

In this case when the parents remained subject to their bail conditions they had not been in a position to provide accommodation for their children within s.20(7)b)(ii) and were not, therefore, in a position legally to object whether or not they formally consented.

The bail conditions not only prevented the parents from providing suitable accommodation under s.20(1) they were not able to exercise their statutory right to object under s20(7).

The CA reversed the finding at first instance that the retention of the children after the 72 hour period of police protection was unlawful and that this constituted a breach of the parents Article 8 rights. The lawfully imposed bail conditions meant that such interference was also lawful and necessary and there was no breach of s.6 HRA 1998 and that damages should not have been awarded under s.8.

By way of guidance the CA did stress that nothing said in its judgement was intended to alter the content and effect of the guidance given in family cases.

The focus of the court in this appeal was “on the bottom-line legal requirements that are established by s.20 and within which the LA must act.”

Of importance to us all the court also made it clear that the guidance given in the family court, which has built upon that bottom-line since the children in this case were removed in 2007 “identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a LA when a child may need to be accommodated; it is, in short, good practice guidance and a description of of the process that the family court expects to be followed”.

The good practice should continue to be followed, notwithstanding the requirements and limitations of s.20, but a failure does not give rise, of itself, to an actionable wrong or found a claim for judicial review.

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