The Supreme Court in Williams v Hackney London Borough Council has provided clarification of the scope of local authority powers under section 20 of the Children Act 1989 to provide accommodation for a child. The Court has set out –
• when a parent will be treated as having voluntarily delegated their parental responsibility to a local authority under section 20;
• when a parent’s request for the return of their children renders continued section 20 accommodation unlawful; and
• the risks of keeping children in accommodation under section 20 for a long period of time.
The comments of the Supreme Court on the extent of section 20 powers and duties is of particular importance for local authorities, following a string of successful claims against local authorities for misuse of section 20.
Lady Hale, giving the leading judgment, made important observations about the relationship between local authorities’ duties and powers under section 20, and their powers under the care order regime. She noted that section 20 provides scope for a partnership approach to be taken between parents and a local authority, where there are concerns about children. A partnership approach with parents can have benefits: needlessly rushing into compulsory procedures when there is still scope for a partnership approach may escalate matters in a way which makes reuniting the family more rather than less difficult. However, this partnership approach depends upon the real and voluntary delegation of parental responsibility to the local authority by the parents involved. If there are any doubts as to this delegation, a local authority runs the risk of being found to have interfered with a person’s exercise of their parental responsibility against their will. A local authority cannot do so unless they have first obtained a court order. Therefore, if they have purported to rely on section 20, they will have acted unlawfully.
Lady Hale made clear that there will be doubts as to whether there has been a real and voluntary delegation of parental responsibility where parents are given the impression that they do not have a choice but to agree with the local authority. “Helpless submission to asserted power does not amount to a delegation of parental responsibility.” Therefore, any suggestion that parents do not have a choice must be scrupulously avoided if section 20 is to be relied upon. The best way of ensuring that real and voluntary delegation is obtained, and to protect against possible litigation, is for local authorities to inform parents fully of their rights under section 20, both orally and in writing: this includes their rights to object to continued accommodation and to remove their child from accommodation at any time. Nevertheless, Lady Hale did note that even where this has not occurred, a delegation may be real and voluntary, and thus accommodation of children under section 20 may be lawful. It will depend on the circumstances of the case whether this is so.
If a parent unequivocally requires the return of their child, the local authority have neither the power nor the duty to continue to accommodate the child under section 20. They must either return the child or obtain the power to continue to look after the child, either by way of police protection or an emergency protection order. Failure to do so may ground a legal claim against the local authority. However, Lady Hale emphasised that for this to be the case, the request for return of the child must be unequivocal. Where, as was the case on the facts before the court, the parents are seeking to achieve the return of the child on a collaborative basis, and as part of this approach they are prepared to permit the local authority to accommodate the child until they feel able to return her, there is no unequivocal request for return. In such cases, the continued accommodation of the child by the local authority is lawful under section 20.
There is no statutory limit on the length of time a child may be accommodated under section 20. Nevertheless, Lady Hale made clear that local authorities have a variety of duties towards children they are accommodating which render such long-term accommodation risky. These include the general duty towards looked after children to safeguard and promote their welfare, in consultation with both the children and their parents. This is allied to a requirement for local authorities to assess a child’s needs for services, and prepare a care plan for her, to be agreed with the parents where practicable. Care plans have to record, amongst other things, the arrangements made to meet the child’s needs and the long-term plan for her upbringing.
Therefore, although the object of section 20 accommodation is partnership with the parents, the local authority have to be thinking of the longer term. There will be cases where that should include consideration of whether or not to apply for a care order. Any delay in bringing care proceedings in cases where it is obvious they should have been brought is to be avoided. Lady Hale made clear that failure to do so may amount to a breach of the local authority’s obligations and be ‘unreasonable’ such that a judicial review claim could be brought against the local authority. In some cases, this may also amount to a breach of the child’s or parent’s rights under article 8, which could lead to an award of damages against the local authority. Therefore, it is clear that where it is obvious that care proceedings will need to be instituted in the future, these should not be delayed. Reliance on section 20 as the basis for accommodating a child in these circumstances creates the risk that local authorities may breach their duties and the right to family life of the child and/or the parents.
Jonathan Auburn
11 KBW
ja@11kbw.com
Tags: accommodation of children, Children Act, parental responsibility, s.20 Children Act, Section 20, Williams v Hackney