Section 20 CA and local authority duties

LexisPSL Local Government, in partnership with Claire Cousin of Emery Johnson Astills, provide a comprehensive guide to local authorities' duties under section 20 of the Children Act 1989.

The duty under section 20 of the Children Act 1989

Section 20 of the Children Act 1989 (ChA 1989) imposes a duty on every local authority to provide accommodation to children identified as children in need resident in its area who appear to require accommodation. There are certain factors which will influence a local authority as to whether they shall provide accommodation or may provide accommodation to a child in need.

A local authority will firstly need to identify children in need in its area. These are children who without the provision of services:

References:

ChA 1989, s 17(10)

• are unlikely to achieve or maintain or have the opportunity to do so, a reasonable standard of health or development
• their health or development is likely to be significantly impaired, or further impaired, or
• is disabled

The local authority would then need to consider whether or not this is a child in need in their area who requires accommodation.

If they do require accommodation under this section, they become 'looked after' by a local authority as soon as the duty under ChA 1989, s 20 arises regardless of whether this has been a period over 24 hours. The local authority has duties to all children 'looked after' by them. See Practice Note: Local authority duties towards children looked after by them.

References:

London Borough of Southwark v D [2007] EWCA Civ 182

ChA 1989, s 22(2)

Difference in the duties under section 17 and section 20 of the Children Act 1989

ChA 1989, s 17 is a general duty on each local authority to:

• Safeguard and promote the welfare of children within their area who are in need, and
• So far as is consistent with that duty, to promote the upbringing of such children by their families

This duty is to be satisfied by the local authority providing a range and level of services that are appropriate to those children’s needs. These services can be practical or financial in nature. See Practice Notes: Children in need—provision of services and Local authority duties for advice and assistance for certain children and young persons.

Services under ChA 1989, s 17 can also include accommodation. Should a local authority provide accommodation to a child in need, but if on the facts of the case a duty has arisen under ChA 1989, s 20 to provide accommodation, then the local authority must be regarded as providing accommodation under ChA 1989, s 20 and the child is regarded as a 'looked after child'. This is a more onerous duty of care than those of a local authority to a ChA 1989, s 17 child in need. Once the ChA 1989, s 20(1) duty factually arises, a local authority cannot elect to provide accommodation under ChA 1989, s 17. There may be disputes between a child and a local authority as to whether on the facts of a particular case the ChA 1989, s 20 duty arises or not.

References:

R (on the application of H) v Wandsworth London Borough Council; R (on the application of Barhanu) v Hackney London Borough Council; R (on the application of B) v Islington London Borough Council [2007] EWHC 1082 (Admin)

Before providing services under ChA 1989, ss 17 and 20, the local authority must ascertain and consider as far as is reasonably practicable the wishes and feelings of the child bearing in mind their age and understanding regarding the provision of services.

The duty under ChA 1989, s 20 is specifically in relation to local authorities providing accommodation to children in need in their area as outlined above. This duty applies to the local authority even where another agency is or may be assisting with providing accommodation (see R (on the application of G) v London Borough of Southwark [2009] UKHL 26)

Children the section 20 duty applies to

The duty applies to children who are 'in the area' of the local authority (ChA 1989, s 20(1)).

To be 'in the area' of a local authority for this purposes of this duty, the child needs to be physically present (R (S) v London Borough of Wandsworth [2001] EWHC 709)

A local authority will have a duty to a child under ChA 1989, s 20 if when considering the facts of the case are answered in favour of the child:

• is the person a child?
• is the child a child in need?
• is the child within the local authority’s area?
• does it appear to the local authority that the child requires accommodation?
• is that need the result of:

- there being no person with parental responsibility for the child, for example, where parents are deceased

- the child having been lost or abandoned, or

- the person who has been caring for him being prevented from providing him with suitable accommodation or care

• what are the child’s wishes and feelings regarding provision of accommodation for them?
• what considerations, in light of the child’s age and understanding should be given to those wishes and feelings?
• does anyone who has parental responsibility for the child who is willing to provide accommodation object to the local authority’s intervention?
• if there is an objection by someone with parental responsibility, is there agreement from an individual who has a child arrangements order setting out where the child should live to the local authority’s intervention?

The local authority should bear in mind that if there is a dispute as to the age of the person and whether or not they are a child, this will need to be determined by the court. Note that in R (on the application of G) v Southwark London Borough Council, it was decided that if a child of 16 or 17 years is excluded from the family home and approaches a local children's services authority asking to be accommodated by them under s 20, and that child satisfies the requirements in s 20(1), it is not open to the children's services authority to arrange for the child instead to be accommodated by the local housing authority under the homelessness provisions of Part VII of the Housing Act 1996. A local authority in these circumstances has a duty to accommodate the child (see R (on the application of G) v London Borough of Southwark [2009] LGR 673 applying dicta of Ward LJ in R (on the application of A) v London Borough of Croydon and R (on the application of M) v London Borough of Lambeth [2009] 1 FLR 1324 at [75])

When a local authority should intervene

A local authority shall provide accommodation under ChA 1989, s 20(1) where:

• the child has no one with parental responsibility for them
• the child has been lost or abandoned
• the person who has been caring for the child is being prevented (whether temporarily or permanently and for whatever reason) from providing him with suitable accommodation or care

The child is a child in need who is aged over 16 and whose welfare the local authority consider would be seriously prejudiced if the child is not provided with accommodation

A local authority has a discretion to provide accommodation under this part of ChA 1989 where the local authority considers to provide accommodation would safeguard or promote the child’s welfare—even where there is a person with parental responsibility willing and able to care for the child. This will be an assessment for a local authority on a case by case basis. A person with parental responsibility may be willing and able to care for the child, but a local authority’s assessment may be that the child’s welfare would be harmed or at risk of harm by being placed with that person even though they are willing and able to offer accommodation. Therefore, a local authority may wish to provide accommodation in any event. However, the local authority will still only be able to accommodate the child if a person with parental responsibility does not object. If there is an objection and a local authority continues to wish to accommodate, the local authority will need to seek a care or emergency protection order.

This also applies to any child between the ages of 16 and 21 who the local authority could accommodate in a community home (ChA 1989, s 20(5)).

Local authorities should be mindful that they may not provide accommodation to a child if any person with parental responsibility for the child objects and is willing and/or able to provide or arrange for the child to be provided with accommodation (unless the child is aged 16 or over and agrees to being provided with accommodation by the local authority) under ChA 1989, ss 20(7), 20(11).

Please note that even if a parent is willing to provide accommodation but is unable to do so, for example, due to police bail conditions preventing unsupervised contact with a child, then a local authority can accommodate a child even if a person with parental responsibility objects under ChA 1989, s 20(7) (see also London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26)

In the event that a dispute arises as to whether the local authority should provide accommodation, the individual who is dissatisfied with the local authority decision should make a complaint pursuant to the local authority complaint procedures. In the event they remain dissatisfied with the outcome of the complaints process, the individual could apply for judicial review to challenge the local authority’s decision.

How to decide whether to provide accommodation

There are a number of different factors that a local authority will need to consider when looking at whether to provide accommodation under ChA 1989, ss 31, 46 and Mental Capacity Act 2005, ss 1–3:

• consider the child’s current circumstances carefully to see if there is an alternative to the child being accommodated such as being cared for by a family member or friend by way of a private family arrangement or under an appropriate private law order such as a child arrangements order
• consider whether providing practical or financial support to a child in need could negate the need for accommodation to be provided
• consider the resources they have available and whether the accommodation they would provide would be appropriate to the needs of the child in the circumstances. For example, being in an appropriate location so the child could continue to attend the same school
• consider the wishes and feeling of the child concerned
• consider carefully in cases where a decision is being made to offer accommodation due to safeguarding concerns whether or not a person with parental responsibility will object to accommodation. If a person with parental responsibility objects, an application to court for an emergency protection order or a care order may be needed
• consider carefully whether a holder of parental responsibility has capacity to consent or object to accommodation being provided by the local authority

Challenges and issues

Which local authority?

Disputes often arise as to which local authority a child is in the area of and has the duty to provide accommodation. The child is in the local authority’s area when physically present. A local authority may not avoid responsibility by arguing that a separate local authority has assumed responsibility (R (on the application of Liverpool City Council) v London Borough of Hillingdon [2008] EWHC 1702).

It is important that local authorities co-operate and share information with each other at the earliest opportunity regarding which area a child is in and who will take responsibility for them (Re Y Children - Suffolk County Council v Nottinghamshire County Council [2012] EWCA Civ 1640)

Capacity and obtaining parental consent to accommodation

The minimum legal requirement for accommodation under ChA 1989, s 20(7), 20(9) is that there is no objection to accommodation from a person with parental responsibility for the child or there is active consent from a person who has a child arrangements (living with) order or special guardianship order in respect of the child.

However, an emerging practical issue arising in relation to the local authority providing accommodating is in relation to a parent’s capacity to provide consent to accommodation under ChA 1989, s 20. It is important for local authorities to be prepared for this issue.

If a local authority is in doubt about a parent’s capacity to provide ChA 1989, s 20 consent and considers that accommodation is appropriate, it is good practice for a local authority to make an application for a care order or emergency protection order.

The following has been outlined as good practice guidance which local authority practitioners should take into consideration:

• social workers have a personal duty (which cannot be dictated by others) to be satisfied that the person giving consent to accommodation has the capacity within the meaning of the Mental Capacity Act 2005 (MCA 2005) to do so
• if social workers have doubts regarding a parent’s capacity, no further attempts should be made to obtain consent and advice should be sought from a team manager or management
• social workers must ensure that consent is informed consent including ensuring that parents understand the consequences of giving consent, the range of choices available, the consequences of refusal and ensuring parents are in receipt of all facts and issues that are material to giving consent

(See Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), MCA 2005, ss 2–3, Re N (children) (adoption: jurisdiction) [2016] 1 All ER 1086 and London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26)

Social workers should also consider the following practical guidance to good practice:

• what is the current physical and psychological state of the parent?
• if they have a solicitor, have they been encouraged to seek legal advice and/or advice from family and friends?
• is it necessary for the safety of the child for them to be removed at this time?
• would it be fairer in this case for the matter to be the subject of a court order rather than an agreement?

(See Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam))

Although not a legal requirement, a prudent local authority may consider ensuring parental consent is recorded in writing and evidenced by the parent’s signature:

• 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
• the written document should spell out, following the language of ChA 1989, s 20(8), that the parent can ’remove the child’ from the local authority accommodation ’at any time’, and
• the written document should not seek to impose any fetters on the exercise of the parent’s right under ChA 1989, s 20(8) the written document should spell out, following the language of ChA 1989, s 20(8)

(See also Re N (children) (adoption: jurisdiction) [2016] 1 All ER 1086)

Where the parent is not fluent in English, good practice for a local authority would be to translate any written ChA 1989, s 20 document 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' (Re N (children) (adoption: jurisdiction) [2016] 1 All ER 1086 at para 170).

It is good practice for great care to be taken by local authorities in obtaining consent to accommodation from parents where there are potential issues with capacity, such as mothers who have just given birth or parents with mental health or learning difficulties or disabilities, especially where there is no immediate danger to the child and probably no order would be made (see Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam) and Medway Council v AP [2015] Lexis Citation 572)

If a local authority accommodates a child where a person with parental responsibility is willing and/or able to provide or arrange accommodation, the local authority may be at risk of a claim for a declaration that the parent’s and potentially the child’s human rights have been breached and a subsequent claim for damages. There is also the potential for a claim if the local authority do not follow the good practice guidance, however see: Human Rights Act challenges below and Practice Note: Accommodating children under section 20—best practice.

Objection and consent to accommodation

Where there is more than one holder of parental responsibility for a child and one holder consents where another does not, a local authority may not provide accommodation if the objecting holder of parental responsibility is willing and able to provide or arrange accommodation (ChA 1989, s 20(7)).

This can be overridden only if there is a person who has a child arrangements order (living with order), special guardianship order or has care of the child by virtue of an order under the court’s inherent jurisdiction provides consent, unless the child is over 16 (ChA 1989, ss 20(9), 20(11))

If no consent is forthcoming and the local authority is of the view that accommodation is required to safeguard the child’s welfare, the local authority should consider an application for a care order or emergency protection order or other emergency powers under ChA 1989.

Human Rights Act challenges

Local authority practitioners need to be aware that the inappropriate obtaining of consent to section 20 accommodation may leave a local authority open to a claim under the Human Rights Act 1998 (HRA 1998) for breach of Article 6 and 8 rights damages (see Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam))

Local authority practitioners should note that the Court of Appeal is encouraging practitioners to follow the guidance outlined above as a matter of good practice. However, providing a local authority complies with the legal requirements of ChA 1989, s 20 a failure to follow the good practice outlined does not, of itself, give rise to an actionable wrong, or found a claim for judicial review (see London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26).

Local authority practitioners should be aware that even if a section 20 consent was properly obtained, if there is inordinate delay in progressing a plan for the accommodated child, including the timely issue of proceedings, the local authority may face a claim under the HRA 1998 for breach of Article 6 and 8 rights and damages. Local authorities need to ensure that once a child has been accommodated under section 20 there is effective and prompt care planning and assessments completed, with Court proceedings being issued promptly if required. See Practice Note: Accommodating children under section 20—best practice and Northamptonshire County Councilv AS and Others [2015] EWHC 199 (Fam).

Withdrawal of consent to accommodation

A person who has parental responsibility for a child can object to a child’s continued accommodation at any time without notice (ChA 1989, s 20(8)). In the event the local authority seeks to prevent removal, they will need to apply for a care order or emergency protection order or seek the police to invoke their police protection powers. If this occurs, the local authority must either return the child or apply for a care order or emergency protection order or seek for police protection powers to be invoked by the police. Should a local authority fail to do this, it will expose itself to proceedings and potentially commit a criminal offence (see Re N (children) (adoption: jurisdiction) [2016] 1 All ER 1086 at para 170)

Alternatively, the local authority could support a holder of parental responsibility who consents to the child’s continued accommodation to seek a child arrangements order (living with) as a holder of parental responsibility cannot object to a child’s continued accommodation if a person who holds a child arrangements (living with) order consents (ChA 1989, s 20(9))

It is not open to a local authority to use an order under ChA 1989, s 8 to prevent a child’s removal from accommodation (ChA 1989, ss 9(2), 9(5))

A section 8 order is one of the following:

• a child arrangements order as to who a child should live and/or spend time with
• a specific issues order which requires an individual to do something
• a prohibited steps order which requires an individual not to do something

Practitioners who represent parents may wish to consider providing local authorities written notice of intention withdraw consent to a child’s accommodation with a time limited window for the child to be returned to avoid potential criticism within care proceedings of a child being destabilised and unsettled by an unplanned removal.

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