Council “had lawful basis” for accommodating children under s.20 CA: Supreme Court

A London borough had a lawful basis for continuing to accommodate children under s.20 of the Children Act 1989, the Supreme Court has unanimously ruled.

The President of the Supreme Court, Lady Hale, concluded that the appellant parents had not objected nor unequivocally requested the immediate return of their eight children.

The appeal in Williams and another v London Borough of Hackney [2018] UKSC 37 concerned the limits of a local authority’s powers and duties to provide accommodation for children in need under section 20 CA. The children were, at the relevant time, aged 14, 12, 11, 9, 7, 5, 2 and 8 months.

On 5 July 2007 their 12-year-old son was caught shoplifting. He told the police that he had no money for lunch and that his father had hit him with a belt.

The police visited the family’s home and found it in an unhygienic and dangerous state unfit for habitation by children. The police exercised their powers under s 46 CA to remove the children to suitable accommodation for a maximum of 72 hours. The children were provided with foster placements by Hackney.

The appellants were arrested and interviewed by the police, then released on police bail on condition that they could not have unsupervised contact with any of their children.

The appellants were asked to sign a ‘Safeguarding Agreement’ by the council on 6 July 2007 by which they agreed that all the children would remain in their foster placements for the present time.

However, they were not informed of their right, under s 20(7) CA to object to the children’s continued accommodation after the expiry of 72 hours, nor of their right, under s 20(8), to remove them at any time.

On 13 July, solicitors instructed on their behalf gave formal notice of the appellants’ intention to withdraw consent.

On 16 July the council decided that the children should be returned home as soon as possible. However, it took until 6 September for the council to arrange with the police for the bail conditions to be varied, whereupon the children returned home on 11 September 2007.

Criminal proceedings against the appellants were later discontinued. In July 2013 the appellants issued proceedings claiming damages, amongst other things, for breach of their rights under article 8 of the European Convention on Human Rights.

The High Court dismissed all the claims except for the article 8 claim, which was upheld on the basis that, because the parents had not given their informed consent, there had been no lawful basis for the accommodation of the children after 72 hours, so that the interference with family life was not in accordance with the law. The judge awarded each of the appellants damages of £10,000.

The Court of Appeal allowed the council’s appeal, holding that consent was not required and that there had been a lawful basis for the children’s accommodation under s. 20 CA, and the interference with their article 8 rights had been proportionate.

The parents’ appeal was heard in the Supreme Court by Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath and Lady Black, who unanimously dismissed it.

Giving the only judgment, Lady Hale said the case concerned what the local authority is to do if the parents ask for their accommodated children to be returned to them but the local authority perceive that there are obstacles to doing so.

She noted that no court order was required for the authority to provide accommodation for children in need under s 20 CA. However, it was subject to the rights under s 20(7), and to the provision on removal in s 20(8). In short, it is a voluntary service, the President said.

If a parent delegates the exercise of his or her parental responsibility for a child to the local authority under s 20 CA, such delegation “must be real and voluntary”.

The best approach, Lady Hale said, is “by informing the parent fully of her rights under s 20, but a delegation can be ‘real and voluntary’ without being ‘informed’”.

No such delegation is required where the local authority steps into the breach to exercise its powers under s.20 where there is no-one with parental responsibility for the child, the child is lost or abandoned, or the parent is not offering to look after the child. In those circumstances active delegation is not required.

If a parent with unrestricted parental responsibility objects at any time pursuant to s 20(7), the local authority may not accommodate the child under s 20, regardless of the suitability of the parent or of the accommodation which the parent wishes to arrange, Lady Hale said.

The President said it was not a breach of s.20 to keep a child in accommodation for a long period but a local authority must also think of the longer term and consider initiating care proceedings in order to fulfil its other duties under the CA, and to avoid breaches of the child’s or the parents’ rights under article 8.

Lady Hale said that in the present case, where the s.20 arrangements replaced the compulsory police protection under s.46 without the children returning home in the meantime, the focus was not on the appellants’ delegation of parental responsibility to the council, but on their rights under subsections 20(7) and 20(8).

Entering into a safeguarding agreement was a matter of good practice, although it was “important that such agreements do not give the impression that the parents have no right to object or to remove the children”.

The lawfulness of the s.20 accommodation by Hackney depended on whether the appellants’ actions amounted to an unequivocal request for the children to be returned. The bail conditions were not an insuperable impediment to the request and were not a reason to refuse.

However, the letters from the appellants’ solicitors could not be read as an objection or as a request for immediate return. “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.”

Lady Hale said she was for a while concerned at the delay in assuring the police that in the council’s view the bail conditions could safely be lifted so that the children could return home. “It was not the Council’s job to apply for the conditions to be varied or lifted but they could have provided earlier support for an application by the parents.

“However, as the judge found, the police had their own concerns, independent of those of the Council,……so that it was not possible to say what effect an earlier positive report from the Council would have had.”

The President said that it followed that, the parents not having objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under s. 20. “This means that the ground on which the judge held their accommodation to have been in breach of the parents’ article 8 rights is not made out.”

Lady Hale said that the parents’ Human Rights Act claims “should have been dismissed, albeit for reasons which are rather different from those of the Court of Appeal”.

This article was based on the Supreme Court’s press summary.