Parental consent not required for section 20 accommodation

February 9th, 2017

Is it a breach of a local authority’s duty under section 20 of the Children Act 1989, and article 8 of the ECHR, to keep children in foster care without their parent’s consent? This was the question answered by the Court of Appeal in London Borough of Hackney v Williams [2017] EWCA Civ 26.

Mr and Mrs Williams’ eight children were taken into care by the London Borough of Hackney, in response to worries that the children were being neglected and physically abused. The parents were questioned by police and released on bail, on the condition that they would not have unsupervised access to their children. Following inquiries Hackney decided to return the children home, but couldn’t do so without a change to Mr and Mrs Williams’ bail conditions. It was some months later before bail was altered, and the children returned home. Criminal charges against the Williams were ultimately dropped. Unhappy with their treatment at the hands of Hackney, Mr and Mrs Williams issued a claim in the High Court. The thrust of their case was that Hackney’s use of section 20 was unlawful, as Hackney did not have adequate consent. The High Court held that the fostering of the children – beyond the initial period of police protection – was unlawful, being in breach of section 20 and Art 8.

The Court of Appeal overturned this decision. The main issue on appeal was the relevance or otherwise of parental consent for the use of section 20 powers.

Sir Brian Leveson P began by observing that section 20 does not confer on local authorities a power to provide compulsory care; it instead covers circumstances where local authorities voluntarily assume care, in partnership with a child’s parents. Under section 20(7), a local authority can’t foster a child if a parent objects, and if a parent is willing and able to provide accommodation, or to arrange for accommodation. If a local authority wishes to continue providing care in such circumstances, it must turn to its compulsory powers.

Mr and Mrs Williams sought to place reliance on Hedley J’s judgment in Coventry City Council v C [2012] EWHC 2190 (Fam), which suggested that consent was required for the use of section 20, and provided guidance as to how consent might be properly obtained. They complained that this guidance had not been adhered to in their case. Nevertheless, the Court of Appeal made clear that while this guidance set out “good practice”, it did not “in fact, have the force of law.” For legal purposes, the starting point was the legislation itself. In a case where the claim is for a breach of statutory duty under section 20, it is necessary to show that the authority actually breached the terms of the statute.

Turning then to the legislation, Sir Brian Leveson P noted that there is no express statutory requirement for a local authority to obtain consent from a parent before applying section 20. Instead, its power to provide care is limited under section 20(7) where a parent “objects”. Therefore, a failure to obtain informed consent from the outset is not of itself a statutory breach. Prior cases suggesting otherwise were either non-binding, or specific on their facts.

Further, under section 20(7), the local authority is only barred from providing care to a child on a voluntary basis if the child’s parents object, and are “willing and able” to provide, or arrange for, accommodation. Here, due to the Williams’ bail conditions, they were unable to provide accommodation to their children, despite their willingness to do so. Therefore, the local authority could legally provide care for the children under section 20, even in the face of the parents’ objections.

The Court of Appeal has therefore made clear that while good practice might require consent from parents before accommodation of their children under section 20, a failure to obtain such consent does not give rise to an actionable wrong and cannot found a claim for judicial review.

Jonathan Auburn

ja@11kbw.com

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