Keywords: Children, s.20 accommodation, DOL
“Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not.” [para. 1]
The case concerned a claim for damages under the Human Rights Act for breach of the Article 8 rights of the parents of 8 children. All 8 children had initially been removed from their parents’ care by the police on a 72-hour hold (under s.46 Children Act) and subsequently accommodated in foster care for 2 months before being returned to the care of their parents. The council had accommodated the children on the basis of powers in s.20 Children Act which require an absence of objection from parents. The issue, therefore, was whether s.20 provided a lawful basis for the local authority to accommodate the children away from their parents in these circumstances.
Both parents were initially arrested and placed on police bail which included a condition that they were not allowed unsupervised contact with their children. The parents were then asked by the council to sign a “Safeguarding Agreement”, which they did. This document did state that it was not legally binding, but it did not:
- Inform the parents of the power under which the Council was purporting to act
- Inform them of their rights under section 20
- Explain the potential relevance of the agreement in any legal proceedings and the circumstances in which these might be brought
The same day, the parents also signed consents to medical treatment and to accommodation (albeit without the children being named).
After obtaining legal advice, the parents attempted to withdraw consent to the s.20 accommodation, but the local authority did not immediately return the children, citing the bail conditions.
It was two months before the bail conditions were altered and the children returned to their parents’ care.
It was held at first instance that the parent’s consent to s.20 accommodation was, therefore, not informed nor had it been fairly obtained and, therefore, that the council had no lawful basis on which to accommodate the children away from the parents in breach of their Article 8 rights. The local authority appealed and the Court of Appeal held that there was a lawful basis for the children’s accommodation.
The parents appealed further and it now fell to the Supreme Court to determine whether s.20 Children Act formed a lawful basis for accommodating children away from their parents in these circumstances.
Lady Hale set out that s.20 Children Act did not contain an explicit requirement for positive consent from parents in order to allow for circumstances in which a parent could not be located or was incapable of providing consent. However, a body of case law had developed which had established that a failure to object or mere acquiescence on the part of a parent was not sufficient to make accommodation under s.20 lawful (R (G) v Nottingham City Council ;Coventry City Council v C, B, CA and CH ; In re W).
These cases had established 3 principles:
- That the use of section 20 “must not be compulsion in disguise”;
- The parent must have mental capacity to make such an agreement;
- The parent’s consent must be properly informed and fairly obtained.
There had also been numerous other cases in which the courts had criticised the use of s.20 by local authorities. However, criticism had primarily focused on the prolonged use of s.20 prior to the issuance of care proceedings (in some cases over many years) and/or the use of s.20 where the threshold for a care order had already been met.
In the current case, by contrast, the local authority had been attempting to work in partnership with the parents in an effort to get the children home as soon as possible and had sought to avoid escalating matters by NOT bringing care proceedings, unnecessarily.
Lady Hale stressed that it was important to recognise that s.20 was, in effect, a delegation of the parent’s parental responsibility to the local authority rather than a matter of ‘consent’ to removal of the child. The delegation of parental authority under s.20 should be “real and voluntary” [para. 39] in that the parent should not be coerced or misled, but this did not require that the parent be fully informed. She distinguished the current case, in which the s.20 accommodation had arisen following an emergency removal by the police, from the types of case cited above in which children had been directly removed from their parents’ care, stressing that:
“removing a child from the care of a parent is very different from stepping into the breach when a parent is not looking after the child.” [para. 40]
The parents’ bail conditions had meant that, at the relevant time, the parents were not able to provide suitable accommodation for their children until those conditions were removed.
Consideration was given to the issue of whether the council should have acted more quickly in asking the police to lift the bail conditions. However, the bail conditions were not directly within the council’s control and the police had independent concerns which meant that it was not certain that an earlier request from the council to the police would have been decisive in altering the conditions.
S.20 itself required the absence of objection rather than explicit consent and, therefore, mere failure to comply with best practice by obtaining explicit consent did not give rise to a claim for damages.
The principles set out in the previous case law should be taken to be guidance on good practice around the use of s.20 and applied particularly to the initial delegation of parental responsibility under s.20.
In the current case, however, the children were already being accommodated under emergency powers when s.20 began to apply and, therefore, the focus was on whether either objection (under s.20(7)) or request to return (under s.20(8)) rendered the continued accommodation of the children unlawful.
On the facts there was some uncertainty as to whether the parents had explicitly objected or unequivocally requested the immediate return of the children. They had, sensibly, followed legal advice to seek to work collaboratively with the council to achieve the return of the children rather than risk pushing the council into issuing care proceedings. As a result,
“it is clear from the letters that the parents were prepared, albeit no doubt with some reluctance, to delegate the exercise of their parental responsibility for accommodating the children to the local authority until the Council felt able to return them, and that delegation was never unequivocally withdrawn.” [para. 59]
Summarising, Lady Hale concluded:
“In sum, there are circumstances in which a real and voluntary delegation of the exercise of parental responsibility is required for a local authority to accommodate a child under section 20, albeit not in every case (see para 40 above). Parents with parental responsibility always have a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child is to live). Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.” [para. 64]
Although the outcome of this case may have given rise to some initial surprise, the Supreme Court has actually reinforced most of what has previously been established about the use and misuse of s.20. What this case seems to clarify is that, while fully informed consent remains best practice, it is lawful for councils to accommodate children under s.20 in cases where the parental delegation may be reluctant or half-hearted, provided that to do so is a proportionate approach to achieving a mutually acceptable resolution to the case within a reasonable period of time.
Full text at: https://www.supremecourt.uk/cases/uksc-2017-0037.html