News

Section 20 Children Act 1989 – A Brief Review

Fri 5th Oct 2018

The starting point is – Section 20 of the Children Act 1989:

Provision of accommodation for children: general

(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(2)…

(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of 16 and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.

(5) A local authority may provide accommodation for any person who has reached the age of 16 but is under 21 in any community home which takes children who have reached the age of 16 if they consider that to do so would safeguard or promote his welfare.

(6)…

(7) A local authority may not provide accommodation under this section for any child if any person who –

(a) has parental responsibility for him; and

(b) is willing and able to –

(i) provide accommodation for him; or

(ii) arrange for accommodation to be provided for him, objects.

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

(9) Subsections (7) and (8) do not apply while any person –

(a) who is named in a child arrangements order as a person with whom the child is to live;

(aa) who is a special guardian of the child; or

(b) who has care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, agrees to the child being looked after in accommodation provided by or on behalf of the local authority.

(10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree.

(11) Subsections (7) and (8) do not apply where a child who has reached the age of 16 agrees to being provided with accommodation under this section.”

In the recent case of Williams and another v London Borough Hackney [2018] UKSC 37 Lady Hale (President) was considering the limits of a local authority’s powers and duties to provide accommodation for children in need under Section 20 of the Children Act 1989. Briefly, the appeal was brought by the parents of eight children. One of the eight children was caught shoplifting. The police visited the family home and found the home to be in an unhygienic and dangerous state for the children to live in. The parents were arrested and released on bail. The children were taken into police protection. The local authority asked the parents to sign a ‘Safeguarding Agreement,’ which they did, agreeing that the children should remain in their foster placements. The parents were not told of their rights under Section 20. The local authority agreed to return the children to their parents but in doing so took nearly two months.

The parents claimed damages but the High Court dismissed all but the application brought pursuant to the Human Right Act 1998. This was on the basis that the parents had not given their informed consent and therefore continued placement in foster care was unlawful. The Court of Appeal overturned that decision and held that there had been a lawful basis for the children remaining subject to accommodation.

Lady Hale considered the appeal in the Supreme Court and dismissed the parents’ appeal. She said this:–

“ the active consent or delegation of a parent who is not in fact looking after or offering to look after the child is not required, any more that it is when there is no-one with parental responsibility or the child is abandoned or lost. But the local authority’s duty and power are subject to the later provisions of the section, in particular, (7) and (11).”

If a parent requests the return of a child, the local authority do not have the power or the duty to continue to accommodate the child and must return the child. Or if the local authority seeks to continue to accommodate the child it must do so by either powers of police protection or an emergency protection order.

In this case the local authority were looking after the children because they had been taken into police protection so when the protective powers expired the circumstances fell within section 20 (1) (c) the parents being ‘prevented’ from caring for children.

There are now numerous authorities on Section 20 which are helpfully set out in Lady Hale’s judgment. Those judgments began with one from Munby J (as he then was) in R (G) v Nottingham City Council [2008] EWHC 152 (Admin) and [2008] 400. Munby J said this:-

“the law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorizing that step…”

Thereafter, Hedley J, in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), emphasised (i) that the use of section 20 must not be compulsion in disguise; (ii) that in order for an agreement to be lawful, the parent must have the requisite capacity to make that agreement; and (iii) even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver’s personal interest, is fairly obtained (para 27 and 28).

These principles were approved by the Court of Appeal in Re W (Parental agreement with Local Authority) [2014] EWCA Civ 1065.

In Northamptonshire County Council v S [2015] EWHC 199 (Fam) the local authority accepted that they had been in breach of both the rights of the mother and child under article 6 and 8 largely due to delays both before and after proceedings were issued.

Other authorities were cited including Medway Council v M and T [2015] EWFC B164 and the case of Re A (Application for Care and Placement Order: Local Authority Failings) [2015] EWFC 11, in which the criticism of the local authority was due to delays between accommodating a child under Section 20 and issuing care proceedings.

More recently, however, is the judgment of Keehan J in Hertfordshire Council v AB and CD; Hertfordshire Council v EF and GH [2018] EWFC 10 where he criticises the local authority for delays of eight and nine years before care proceedings were issued. In this case the mother had written to the local authority formally withdrawing her consent to accommodation but instead of returning the children they advised the mother to obtain legal advice.

Within Lady Hale’s judgment she notes at the outset that local authorities in England are looking after 72,670 children, a figure which has been steadily rising for the past nine years. This is an alarming figure of children to be in local authority care. Of the 72,670, 50,470 were subject to care orders and what might be more worrying, is that 16,470 were accommodated without any order. Despite the problems with the use of Section 20 the figures remain on the increase. It must be remembered that good practice in every case is that parents should be given clear and accurate information, both orally and in writing, as to their own rights and the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.

-Kerry Barker

← Back to News & Resources