Court of Appeal confirms s20 voluntary accommodation agreements can be used for settled long-term placements

The Court of appeal has allowed two appeals which concerned the interplay between care orders and the voluntary accommodation of children under section 20 of the Children Act 1989.

In Re S (a child) and Re W (a child) [2023] EWCA Civ 1, Lady Justice King, with whom Lord Justice Warby and Lord Justice Arnold agreed, considered whether and in what circumstances, the threshold criteria having been established and there being in place an agreed care plan, the court should decline to make an order under section 31 CA 1989 and instead make no order in accordance with the 'no order' principle.

Re S was an appeal against the order of HHJ Atkins of 24 June 2022 whereby he ordered that a child S, aged 9 years, should be made the subject of a care order in favour of a London borough.

Re W was an appeal against the order of HHJ Coffey dated 16 June 2022 whereby she ordered that a girl W, aged 15 years, should be made the subject of a care order in favour of a county council.

The children in each case were beyond parental control, a finding which Lady Justice King noted “does not necessarily mean that the parents are culpable in any way”.

The appellants argued that the children could be accommodated on a long-term basis under section 20.

In Re S, the grounds of appeal filed following the making of the care order by HHJ Atkins were summarised by Lady Justice King as follows:

i) The judge wrongly concluded that a section 31 CA 1989 order was necessary and proportionate on the basis that there was a 'significant risk' that S's father may withdraw his support for section 20 accommodation in the future, S's father has been difficult to contact and communicate with and there have been contact difficulties in the past.

ii) The judge erred when stating that the issue was 'do the local authority need to share parental responsibility?'.

iii) The judge attached excessive weight to the certainty that would be provided by a care order. He failed to express a view as to whether section 20 CA 1989 orders could be used for long term accommodation.

iv) Judicial guidance would be of benefit as to the test to be applied where it is submitted that the section 1(5) CA 1989 'no order' principle should be adopted in preference to section 31.

In Re W, the grounds of appeal against the order of HHJ Coffey were summarised as follows:

i) The judge erred in determining that the proper use and purpose of section 20 CA 1989 is for short-term and temporary accommodation when the provisions of the CA 1989 do not restrict or qualify the use of section 20 CA 1989 accommodation in such a way.

ii) Having determined the above, the judge erred in attaching substantial weight and reliance on that determination as the primary reason for making a care order.

iii) The judge erred in considering that she was able to influence or fetter the local authority's exercise of its parental responsibility during the care order or, in the alternative, placed weight on this consideration as part of her welfare and decision-making evaluation.

iv) The judge erred in concluding that the no order principle and least interventionist approach was rebutted in the circumstances of this case and in failing to identify, or identify properly, the welfare benefits to the child of her parents retaining sole parental responsibility.

Lady Justice King said it was helpful to understand not just the limits of a section 20 order, but also how it differs from a care order.

Deirdre Fottrell KC, acting on behalf of the appellant in Re S, had summarised it by saying that a section 31 care order is the more “draconian order” and more “interventionist”.

“This is undoubtedly the case as not only does a local authority acquire parental responsibility pursuant to section 33(3)(a) CA 1989 when a care order is made, but also under section 33(3)(b)(i) CA 1989 the local authority may 'determine the extent to which a parent may meet his or her parental responsibility' for the child in question,” Lady Justice King said.

“In other words, as it was put in argument, when a care order is made, the local authority may (by section 33(4) CA 1989), in order to 'safeguard or promote the child's welfare', 'trump' the parents whenever there is an issue between them. By contrast, as Ms Fottrell says, a section 20 accommodation order facilitates partnership and where it is functioning well under an agreed care plan, not only is the making of a care order not necessary but it is disproportionate.”

To make a care order in such circumstances would not she submitted, pursuant to section 1(5) CA 1989, be 'better for the child than making no order at all.'

Lady Justice King summarised the parameters of section 20 accommodation:

i) Parents may ask the local authority to accommodate a child as part of the services they provide for children in need: Williams & Another v London Borough of Hackney [2018] UKSC 37, [2018] AC 421 at para. [41].

ii) A local authority cannot provide accommodation if any person who has parental responsibility and is able to provide or arrange for accommodation to be provided for the child objects: section 20(7).

iii) There is no statutory limit upon the duration of an order for accommodation made under section 20. That this is the case was confirmed in Williams v Hackney LBC at para.[49].

iv) Whilst a person with parental responsibility may not surrender or transfer any part of their parental responsibility, they may delegate it by arranging for some or all of it to be met by one or more persons on their behalf: section 2(9) CA 1989. In agreeing to the making of a section 20 order a parent is 'simply delegating the exercise of her parental responsibility to the local authority for the time being': Williams v Hackney LBC at para. [39].

v) Any person with parental responsibility may at any time remove the child from the accommodation: section 20(8).

vi) If there is a child arrangements order naming a person with whom the child is to live and that person agrees to the child being accommodated, then no other person with parental responsibility may either object to the placement under section 20(7) or remove the child from the accommodation under section 20(8).

Lady Justice King went on to consider the leading authority on the use of s.20 CA 1989, Williams & Another v London Borough of Hackney [2018] UKSC 37, [2018] AC 421, in which Baroness Hale had set out nine points in relation to the proper use and effect of orders under section 20 [see paras 38 and 49].

Baroness Hale had concluded her analysis by saying that:

"50. Thus, although the object of section 20 accommodation is partnership with the parents, the local authority have also to be thinking of the longer term. There are bound to be cases where that should include consideration of whether or not the authority should seek to take parental responsibility for an accommodated child by applying for a care order".

On the improper use of section 20, Baroness Hale had emphasised at para [51], that 'section 20 must not be used in a coercive way; if the state is to intervene compulsorily in family life, it must seek legal authority to do so'.

Lady Justice King said it was common ground between the parties to the appeal that cases concerning the operation of section 20 in place of a section 31 care order had to date emphasised the provision of accommodation for a child under section 20 as a short term or temporary solution.

In Worcestershire County Council v AA [2019] EWHC 1855 (Fam), Keehan J had suggested a non-exhaustive list of examples of cases in which it might be appropriate for the local authority to accommodate a child under section 20 without making an application under section 31 CA for a care order.

Lady Justice King said: “Whilst none of the examples given by Keehan J match precisely the facts in the two appeals before this court, the common thread (save with regard to asylum seekers) is the need by parents who are not at fault to secure longer term support and services by way of accommodation without the need for a section 31 order in circumstances where they will work in partnership with the local authority.”

She added that the role of the Court of Appeal was to consider in each case whether the judge, in granting the applications for a care order in respect of each of the two children in Re S and Re W, did indeed 'make the least interventionist order possible'.

Lady Justice King went on to examine the Public Law Working Group’s (PLWG’s) report on the use of section 20 accommodation (March 2021), which included best practice guidance that said this “may be short term accommodation during a period of assessment or respite; alternatively, it may be a longer period of accommodation, including the provision of education or medical treatment”.

The report recommended, amongst other things, that there should be no imposition of time limits for the use of s.20. “The imposition of time limits will be counterproductive,” the PWLG said. “However, it is recommended that, where possible, the purpose and duration of any s20 accommodation is agreed at the outset and regularly reviewed.”

Lady Justice King said: “I am conscious of the need to be cautious of the use made of such guidance as a guide to the interpretation of the statute and remind myself that it can only ever be of 'some persuasive authority' (Ellis v Bristol City Council [2007] EWCA 685; [2007] 1 WLR 1407 at [27]). The guidance with which we are concerned is not however strictly in relation to statutory interpretation. The statute is unambiguous; there is no time limit on the length of a section 20 order. Rather, the guidance goes to the proper use of section 20 orders by building on and fleshing out, the observations of Baroness Hale in Williams v Hackney LBC.

“For my part, I can see no inhibition on a section 20 order being made in appropriate circumstances for a longer period of accommodation provided that proper consideration is given to the purpose of the accommodation and that the regular mandatory reviews are carried out.”

She added: “I am of the firm view….that judicial guidance from this court would be of little benefit. In my judgement, the statute is clear in its terms; the Supreme Court have given careful consideration to the role of section 20 in Williams v Hackney LBC and the PLWG has only recently given detailed consideration to section 20 against the backdrop of public law proceedings as a whole. These strands together should serve to disabuse all those involved with the provision of services for children in need of continuing support of the notion that a section 20 order can only properly be utilised to provide short term accommodation for a child.”

Turning to the individual appeals, Lady Justice King said in relation to Re S: “The judge did not fall into the trap of proceeding on the basis that a section 20 order should only be made for a limited duration and carefully considered whether an order should or should not be made on the facts of the case. He did however, in my judgement, fall into error in his assessment of the risk presented by the father to the stability of S and to his placement. This in turn resulted in his making what was in my view, a disproportionate order.”

Regarding Re W, Lady Justice King said it was “clear that the judge was heavily influenced by her belief that section 20 orders should only be used as a short-term measure. That error led the judge to approach the risk and proportionality exercises with the balance too heavily weighted in favour of the making of a care order”.

Lady Justice King said the judge had in effect used as a makeweight the behavioural difficulties which she suggested may well arise during W's teenage years.

The Court of Appeal judge said: “I have thought carefully whether, notwithstanding the judge's error of law in relation to the use of section 20 orders, it would nevertheless be proportionate to make a care order to provide the local authority with the power under section 33 CA 1989 which would allow it to limit the extent to which the parents might utilise their parental responsibility in the event that issues in relation to setting boundaries or challenging behaviour should arise in future."

However, Lady Justice King said that, in her judgement, this concern would not justify the making of a care order. She added: “There is no evidence to support the judge's speculation that, given W's history, trouble may lie ahead of a type which will necessitate the local authority having parental responsibility in order for her behaviour to be managed.”

The Court of Appeal judge concluded by saying that each of the appeals against the making of a care order should be allowed. “No party in either case have suggested that the matter should be remitted for reconsideration. It follows therefore that both of these children will remain in the long-term placements provided by the respective local authorities under section 20.”

Lady Justice King added: “I would simply conclude by saying that each of these two cases must be viewed in the context in which they have come before this court, that is to say in relation to children who are settled in long-term placements which are meeting their respective needs in circumstances where both the placements and the accompanying care plans are supported by the parents.

“As the judge in Re W observed, no court has hitherto considered the use of a section 20 order in this type of situation and it is hoped that this appeal will have served to fill that gap. Nothing I have said should on any view be taken to seek to undermine or dilute the Supreme Court's decision in Williams v Hackney LBC.”

Lottie Winson