Section 20 (England)/Section 76 (Wales): putting the guidance from case law into practice

By Oliver Millington, barrister, 9 Gough Square, London

15th April 2019

Photo: Gary Brigden

Contents

What the legislation says

The law in relation to the accommodation of children by local authorities is governed in England by section 20 of the Children Act 1989 and in Wales by section 76 of the Social Services and Well-Being (Wales) Act 2014. Because the key case law has been in relation to English councils and for simplicity, this guide refers throughout to section 20 and the Children Act 1989, but the general principles apply equally to section 76 of the 2014 Welsh act.

Local authorities accommodate children either because they have a duty to do so or because they choose to exercise a power to accommodate. The duty to arrange accommodation for a child arises in the following cases:

1. There is no-one who has parental responsibility for the child: section 20(1)(a).
2. The child is lost or has been abandoned: section 20(1)(b).
3. The person who has been caring for the child is prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care: section 20(1)(c).
4. The child has reached the age of 16 and the local authority consider the child’s welfare is likely to be seriously prejudiced if it does not provide him with accommodation: section 20(3).

Under section 20 , a local authority has the power to arrange accommodation for a child if:

1. The authority considers that to provide accommodation would safeguard or promote the child’s welfare, even though a person who has parental responsibility for him is able to provide him with accommodation: section 20(4) .
2. A child has reached the age of 16, but is under 21 and the local authority consider the child’s welfare is likely to be seriously prejudiced if it does not provide him with accommodation in a community home (i.e children’s home) which takes children: section 20(5) .

It should be noted that once accommodated for more than 24 hours, the child’s status becomes that of a child who is looked after.

Both the duty to accommodate and a local authority’s powers to accommodate are disapplied in the circumstances set out in section 20(7), in which case the duty to accommodate does not arise and the power to accommodate may not be exercised.

Under section 20(7), accommodation cannot be provided if an objection is made by a person with parental responsibility for the child who is willing and able to provide accommodation or arrange for someone else to provide accommodation (section 20(7)).

The duties and powers to accommodate are also subject to the rights of persons with parental responsibility (section 20(8) .) This allows the person at any time to remove the child from section 20 accommodation. There are, however, certain qualifications to the right which take account of other people with legal responsibilities towards the child. A person with parental responsibility is not permitted to remove the child if any of the following persons agree to the child being looked after in local authority accommodation:

• a person named in a Child Arrangements Order as a person with whom the child is to live;
• a special guardian;
• a person with care of the child under an order made by the High Court in the exercise of its inherent jurisdiction with respect to children. (section 20(9)).

If there is more than one such person, all of them must agree to the child being looked after in local authority accommodation, e.g. if a child has two special guardians, both must agree (section 20(10)). Otherwise, a person with parental responsibility continues to have the right to remove the child.

Finally, if a child who has reached the age of sixteen agrees to being provided with local authority accommodation, then a person with parental responsibility for a child cannot remove the child, nor is any objection to accommodation by a person with parental responsibility of any effect: section 20(11).

What the case law says

The leading case on the application of section 20  is the Supreme Court’s 2018 decision in Williams v London Borough of Hackney [2018] UKSC 37.

The essential facts in Williams were as follows:

• The parents had eight children.
• On 5 July 2007, a 12-year-old child was arrested for stealing chocolate bars, telling a security guard that he needed money for food. When seen by the police, he said that he had been beaten by his father with a belt, and this explained a bruise on his face.
• The police visited the family home, which was in a poor, unhygienic state, with accumulations of dirt, no food in the fridge, and an extremely dirty toilet. The children appeared dirty and unkempt. Bound sticks or twigs were found suggesting they may have been used to give or threaten corporal punishment.
• The police decided that the home was not in a fit state to accommodate children and they took all eight children into police protection.
• Both parents were given police bail on conditions that prohibited unsupervised contact with any of the children “to prevent interference with victims”.
• On 6 July 2007, the parents signed a “safeguarding agreement” with the local authority children’s services. The children were to remain in foster care under the agreement. It was not disputed that Mr and Mrs Williams had the capacity to understand the agreement.
• When the local authority sought Mr and Mrs Williams’ consent for the children to be accommodated, they were not informed that they had the right, under section 20(8) to remove their children from local authority accommodation at any time.
• Throughout the period of foster care, no realistic alternatives to the local authority accommodation, such as extended family members or friends, were suggested by Mr or Mrs Williams for the care of any of the children.
• On 13 July, Mr Williams, having taken legal advice, gave the local authority written notice of his withdrawal of consent to be effective as of 23 July although his letter drafted by his solicitor also stated, “in the event that the local authority feel unable to arrange for all the children to return home within this time frame, then we ask for details of the proposed timescales for returning each child currently being accommodated and the basis for those timescales.”
• On 16 July, the local authority children’s services decided in principle that it was safe for the children to return home. However, the children did not in fact return home until the police bail conditions were varied on 6 September 2007.

The parents decided to bring legal proceedings against the local authority. Their main argument was that the local authority’s actions were not in compliance with section 20. Although the ‘safeguarding agreement’ signed on 6 July 2007 apparently gave parental consent to the children remaining in foster placements “for the present time”, they argued their consent was unfairly obtained and not true consent.

Decision in the High Court

The High Court held that the local authority had failed to comply with section 20 of the Children Act 1989 and were also liable to pay damages for breach of Article 8 of the European Convention on Human Rights (ECHR). The local authority appealed the decision to the Court of Appeal.

Decision in the Court of Appeal

The Court of Appeal allowed the local authority’s appeal.

The key part of the Court of Appeal’s judgment was as follows:

“The third point to make with respect to s. 20(7) … relates to the single word ‘objects’. The word ‘consent’ does not appear within s. 20. There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions in s. 20(1), (3), (4) and (5), let alone any requirement for such consent to be in writing… [However] Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages …, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’ might require; the authority must be seen to have acted in breach of the terms of the statute.”

Decision in the Supreme Court

The Supreme Court dismissed the parents’ appeal.

The Supreme Court’s judgment was given by Baroness Hale, a judge with extensive experience of childcare law. She identified the following general principles about the lawful provision of accommodation under section 20 . Below, “parent” should be read as ‘person with parental responsibility’ and the quotations are taken from the Supreme Court’s decision.

Why the Supreme Court dismissed the appeal

Applying the above general principles, the court dismissed the Williams’ appeal for the following reasons:

• This was a not a case where a local authority used its section 20 functions to take charge of the care of children. It became involved because the children were taken into police protection. Therefore, the focus was on whether the parents had objected to their children’s accommodation in accordance with section 20(7) rather than whether there had been a truly voluntary delegation of parental responsibility.
• When the children left police protection on 8 July, their parents were clearly prevented from providing them with suitable accommodation. Therefore, the local authority were required to secure accommodation for the children under section 20(1) unless there was a parental objection given in accordance with section 20(7) or a parent sought to remove the children under the section 20(8).
• The facts of what happened when the parents visited local authority offices on 9 July were unclear. However, the court decided there was insufficient evidence to conclude that the parents, at that time, made an unequivocal request for return of the children.
• The solicitor’s letter of 13 July was not an unequivocal request for return of the children: “the solicitors were obviously trying to achieve the return of all eight children as quickly as possible on a collaborative basis, rather than to push the council into issuing care proceedings which would probably have delayed matters much longer…. it is clear from the letters that the parents were prepared, albeit no doubt with some reluctance, to delegate the exercise of their parental responsibility for accommodating the children to the local authority until the council felt able to return them, and that delegation was never unequivocally withdrawn”.
• In the absence of an unequivocal objection during the children’s period of accommodation, the local authority had lawfully accommodated the children under section 20.

What should be included in a section 20 agreement?

There is no legal requirement for parental agreement to section 20 accommodation to be recorded in writing. However the Supreme Court in Williams v LB Hackney confirmed that it is a matter of good practice to have a written document recording the agreement, even where the accommodation has begun with compulsory measures, that is where the child has been removed by the police under their powers of protection. Baroness Hale reiterated that the agreement must not give the impression that the parents have no right to object or remove the children. Beyond this observation, the Supreme Court in Williams v LB Hackney did not go into further detail about the form the agreement should take. This author’s view is that the following good practice guidance remains valid and should be followed (as set out in Coventry City Council v C, B, CA and CH [2012] 2 FLR 987 and N (Children) (Adoption: Jurisdiction) [2016] 1 FLR 621).

1. Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.
2. The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.
3. The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.
4. The written document should not seek to impose any restrictions on the exercise of the parent’s right under section 20(8).
5. Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms’.

(Mis)use of section 20

In recent years there has been an increased level of judicial scrutiny and criticism of the misuse of section 20. Much of the criticism has related to the length of time that children have been accommodated before local authorities have brought proceedings. Why does this matter? These are some of the reasons why:

Legal aid is not available simply because a parent’s child is accommodated under section 20 whereas they would be in care proceedings. This creates an imbalance between the local authority (who have the benefit of a legal department and access to legal advice) and the parents although it might have a positive effect. Involving lawyers can make the parties more defensive and exaggerate the extent of disputes. For example, parents may be more co-operative than they would be if their lawyers advised them that assessment reports might be relied on to justify removal of their children.

• In care proceedings children automatically have the benefit of representation through a children’s guardian and their own solicitor, which they do not have when accommodated under section 20. Children therefore have less of an independent voice when accommodated.
• In care proceedings the case comes under the scrutiny of a judge, who has some influence over the preparation of care plans. There is none of the judicial control of a child’s placement in section 20 accommodation.
• Section 20 accommodation is not usually appropriate (other than for a short period before issuing care proceedings) where there is an issue about whether a child is habitually resident in England and Wales. In those circumstances, a court needs to determine the issue so it can go on to decide whether the courts in another country should hear the case.
• Section 20 accommodation is unlikely to be appropriate (other than for a short period before issuing care proceedings) where there is an issue about a parent’s mental capacity.
• Section 20 accommodation is not appropriate (other than for a short period before issuing care proceedings) where there are significant factual issues that need to be determined before a final welfare decision can be made. For example, where a child suffers serious injury and no plausible explanation is offered by the parents.
• Local authorities need to be very careful not to put parents under duress to agree to section 20 accommodation. Parents whose children come under the radar of children’s services are often very vulnerable themselves. There is inevitably an imbalance of power between the parents and the local authority. As the Supreme Court in Williams v LB Hackney has made clear: helpless submission by a parent to asserted power does not amount to a delegation of PR or its exercise.
• Local authorities need to be very careful not to use section 20 accommodation to avoid the more stringent test required for the court to make an emergency protection order or an interim care order. Under section 20(4) , the local authority has to be satisfied that to provide accommodation would “safeguard or promote the child’s welfare”. However, in order to make an emergency protection order or an interim care order, the court has to be satisfied that the thresholds are met. In care proceedings that there are reasonable grounds to believe that the child is suffering or likely to suffer significant harm.
• There is no fixed legal time limit for section 20 accommodation, whereas care proceedings must conclude within 26 weeks (unless it is necessary to extend the proceedings for up to 8 weeks at a time). With this in mind, section 20 accommodation is not appropriate (other than for a short period before issuing care proceedings) unless there is a clear plan for permanence or ‘exit strategy’ which is fully agreed with the parents. The emphasis on section 20 is working in partnership with parents. If that is not practicable, then section 20 accommodation is not appropriate.

So what are the consequences of bad practice? These are the words of Sir James Munby, the former President of the Family Division in the case of N (Children) (Adoption: Jurisdiction) [2016] 1 FLR 621, CA:

Conclusions

• Section 20 remains a very useful and entirely appropriate tool for providing stable placements for children whose parents (for whatever reasons) are not able to offer them accommodation and are in agreement with the local authority’s plan.
• Section 20 remains an effective short-term solution to urgent child protection concerns until the matter can be heard by the courts if, that is, there is no parental objection under section 20(7).
• Section 20 remains an effective longer term solution for certain categories of children, for example disabled children where parents are entirely in agreement with the local authority’s plan or unaccompanied asylum-seeking children. In cases where longer term use of section 20 is not appropriate (see examples set out above), the local authority should bring public law proceedings as soon as possible. Any delay in bringing proceedings to court will at best attract judicial criticism and at worst may result in the local authority having to pay financial compensation to the parents and/or the children where the delay amounts to a breach of the right to respect for private and family life under Article 8 of the European Convention on Human Rights.

A clear understanding of the legal principles and good practice recommendations set out in Williams v LB Hackney is absolutely vital. The key take-home phrase is no longer ‘informed consent’ but ‘real and voluntary’ delegation of parental responsibility.