S.20 and parental consent
A landmark Court of Appeal ruling permits local authorities to accommodate children under s. 20 of the Children Act without parental consent, writes Eirwen Pierrot.
The Court of Appeal has handed down its decision in London Borough of Hackney v Williams and anor [2017] EWCA CIV 26. The judgment runs a coach and horses through the widely-accepted position that accommodation of a child under section 20 of the Children Act 1989 requires a parent’s consent. Despite the large number of recent cases in the Family Court setting out the appropriate steps that should be taken by a local authority to satisfy itself that a parent’s consent to accommodating a child has been properly obtained (with many of those cases having resulted in Human Rights Act damages being awarded to parents whose consent was found not to have been validly obtained), the Court of Appeal has now stated that those decisions of family judges are properly identified as “guidance as good practice which does not, in fact, have the force of law”, and that while that guidance should be followed as a matter of “good administration”, failure to do so will not give rise to an actionable wrong, a claim for judicial review, or a claim for Human Rights Act damages.
The Facts
On 5 July 2007, eight children were taken into police protection after one of them, after having been caught shoplifting, informed the police that his father hit him with a belt. The police visited the home and found it to be in a state unfit for children and the children were taken into emergency accommodation under s.46 of the Children Act 1989 (the Act), a power which would expire after 72 hours. The parents, the Claimants in this case, were questioned by police overnight and were released on bail, with conditions not to have any unsupervised contact with the children. The Claimants were in a “dazed” state. They attended the local authority’s offices on 7 July 2007 seeking the return of the children to their care, but were asked to sign a “safeguarding agreement” which purported to authorise the local authority to continue to accommodate the children away from their parents. The agreement stated that although it was “not legally binding, it may have significance, should there be any court procedures in the future.” The parents signed the agreement. They were not advised that they had the freedom to withdraw their consent to the accommodation of the children or could remove them from local authority accommodation at any time.
The Claimants then instructed solicitors. On 13 July 2007 the Claimants’ solicitors wrote to the local authority stating that it appeared that the local authority was accommodating the children pursuant to section 20, and giving notice that the Claimants wished to withdraw their consent to accommodation and gave notice that consent would expire after 10 days.
By 16 July 2007, the local authority’s Children Resources Panel had concluded that, notwithstanding the problems in the home, the children should return home and that the police should be spoken to regarding the bail conditions. On 19 July 2007, an internal email recorded the local authority’s position as being that there was “not enough evidence for the children to remain in care”.
On 23 July 2007, the Claimants’ solicitors wrote to the local authority confirming that the parents no longer consented to the continuing accommodation of the children by the local authority and stating that the local authority therefore had “no legal basis” upon which to keep the children. The following day the local authority stated that they were not minded to take care proceedings but that the children could not be returned home because of the bail conditions. The bail conditions were not lifted until 6 September 2007 and the children not returned home until 11 September 2007.
The Claimants claimed against the local authority for breach of their article 8 rights, as well as claims in negligence, misfeasance in public office and discrimination.
The Decision at First Instance
In the High Court, Sir Robert Francis QC, sitting as a deputy High Court judge, upheld the Claimants’ claim for breach of their article 8 rights and awarded them £10,000 each in damages under s.8 Human Rights Act 1998, but dismissed the other claims. In his judgment, the local authority’s interference in family life had not been in accordance with the law. The local authority had failed to obtain the valid consent of the parents to the accommodation of the children, having regard to the decisions of Munby J (as he then was) in R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin) and, especially, Hedley J in Coventry City Council v C [2013] EWHC 2190 (Fam). He also considered the cases of Re B (Looked after Child) [2013] EWCA Civ 964; Re W (Children) [2014] EWCA Civ 1065 and Re N (Adoption: Jurisdiction) [2015] EWCA Civ 1112, amongst others.
Coventry v C had concerned the removal of a baby into section 20 accommodation after birth. Hedley J stated, at [25-26] of that judgment that section 20 “involves no compulsory curtailment of parental responsibility” and that obtaining section 20 consent must not be “compulsion in disguise”. He went on to say that every social worker obtaining such consent is under a personal duty to be satisfied that the person giving consent has capacity to do so, that if the person does not lack capacity that the social worker must be satisfied that the consent is fully informed (meaning that the parent must understand the consequences of giving consent, the range of choices available, the consequences of refusal and of giving consent, and must be in possession of all the facts and issues material to the giving of consent). The social worker should then go on to satisfy themselves that removal of the child is nevertheless fair and proportionate, and consider whether it would be fairer for the matter to be the subject of a court order.
Although that case concerned the removal of a baby at birth, Hedley J also said that some of his observations will have more general application and that “willingness to consent cannot be inferred from silence, submission or even acquiescence”.
Sir Robert held that the consent provided by the Claimants in this case had not been fully informed and was acquiescence in the face of state power. Further, the letter of 23 July 2007 made it clear that any consent given was expressly withdrawn. He noted that although the bail conditions may have presented a practical impediment to the children returning home, “no opportunity was given to a court to consider these matters, and importantly, to the parents to offer their proposals to an impartial tribunal.”
The Court of Appeal’s Decision
The Court of Appeal (Leveson, Burnett and McFarlane LLJ) allowed the local authority’s appeal. They reasoned that section 20(1) imposes a duty on local authorities to accommodate children in need who appear to require accommodation as a result of the person who has been caring for him being prevented from providing suitable accommodation or care. That is uncontroversial.
However, it had previously been generally understood that, although section 20(1) imposes a duty on local authorities, a local authority cannot provide accommodation pursuant to section 20(1) where parents do not consent. This is consistent with the structure of the Act in which local authority powers of compulsion are found in Part IV, whereas Part III (where section 20 is found) assumes voluntary responsibility for care and provision of accommodation. Furthermore, the requirement of consent was thought to be underlined by subsections 20(7) and (8), which state:
(7) A local authority may not provide accommodation under this section for any child if any person who –
(a) has parental responsibility for him; and
(b) is willing and able to-
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him, objects.
(8) Any person who has parental responsibility for a child may at any time remove the child from the accommodation provided by or on behalf of the local authority under this section.
The significance of this judgment therefore lies in the Court of Appeal’s finding that the parents’ objections in this case did not prevent the local authority from exercising its duty under section 20(1). This is because, the Court of Appeal reasoned, the Claimants could not exercise their right to object under section 20(7) because they were unable to provide suitable accommodation for the children on account of the existence of the bail conditions. Accordingly, reasoned the Court of Appeal, the children’s accommodation was lawful.
The Court of Appeal went on to make more general and highly important observations, stating: “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 and subject to any of the various refinements that have been described in the case-law [referred to above].” Whilst the Court of Appeal noted that those “refinements” made “good sense” and the judgment should not “detract from or alter the terms of the good practice guidance”, failure to do so could not found an action in damages for breach of article 8 rights and that “it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances.”
Implications for Practitioners
This judgment has two important implications.
First, the effect of this decision appears to be that where parents are deemed by a local authority to be unable to provide suitable accommodation for their children, the duty in s.20(1) effectively becomes a power of compulsion, able to be exercised notwithstanding parental objection. This is a position that Black LJ (albeit in a passing observation) in Re B (Looked after Child) [2013] EWCA Civ 964 had appeared to disapprove of. She said:
“I raised the question during the appeal hearing as to whether a parent who is inadequate is in fact “willing and able to…provide accommodation” but it did not excite much argument. That is explained, I think, by there being a common understanding that where parents in fact object to a local authority providing accommodation, a local authority will have recourse to care proceedings if they seek to accommodate a child and any debate as to whether the parents are “able” to provide accommodation is to be had in that context, not in the context of section 20. That accords with the overall structure of the Children Act 1989 and is the interpretation I would presently support.”
However, that observation has been overtaken by this judgment. The extent to which local authorities will be able to assert that parental objections to section 20 accommodation can be ignored on the basis that parents are unable to provide suitable accommodation remains to be seen. Local authorities in doubt would therefore be well advised to continue to bring cases in which parents do not or cannot consent to section 20 accommodation swiftly before the Family Court.
Second, and significantly, the Court of Appeal has held that that the decision of Hedley J in Coventry City Council v C and other recent cases concerning valid section 20 consent was merely “good practice”, does not hold the full force of law, and cannot found a claim for judicial review or Human Rights Act damages. This seems to put the Court of Appeal squarely at odds with the President of the Family Division who said, in Re N (adoption: jurisdiction) [2015] EWCA 1112, albeit in obiter:
“The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is the denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.”
That no longer appears to be the case. However, local authorities should note that the Court of Appeal emphasised that, notwithstanding that failure to follow guidance may not sound in damages, they should nevertheless continue to follow that guidance.
Christine Cooper and Eirwen Pierrot of Field Court Chambers acted for the claimants in the High Court and in the Court of Appeal.
