The Court of Appeal has said that parental consent is not required to accommodate children under section 20 arrangements.
Appeal judges overturned a High Court decision that Hackney council breached the human rights of two parents when it retained their eight children in foster care under the voluntary care arrangements without consent. The High Court awarded the family £10,000 in damages.
After reviewing the case, lead appeal judge Sir Brian Leveson found the law “does not require” informed consent for section 20 arrangements to be lawful. Statute sets out that a local authority can not provide section 20 accommodation if someone with parental responsibility objects, and can provide an alternative. The parents in this case were unable to provide accommodation due to bail conditions they were under, and therefore were “not in a position legally to object whether or not they formally consented”, the judge ruled.
A failure by councils to meet good practice guidance set out by Sir James Munby, which states parental agreement should be sought and recorded, does not necessarily “give rise to an actionable wrong”, he added.
The case stretched back to July 2007 when police arrested the parents over concerns the father had hit his children. The children were put under police protection for 72 hours before being moved to the fostering placements under section 20. This was because the parents’ bail conditions prevented them from unsupervised contact with the children so they could not accommodate them.
At the time the parents signed a ‘safeguarding agreement’ which stated the children would remain in foster placements “for the present time”. They later claimed this was “unfairly obtained” and “not true consent of any sort”.
After the children returned home and criminal proceedings were dropped the parents pursued a series of complaints against the council’s actions, culminating in their High Court victory in 2015.
Overturning that ruling, the appeal judges found that the local authority did not fail to gain consent, as it is not a requirement of section 20, and that the council was justified in delaying the return of children to their parents’ care as it was waiting for bail conditions to be resolved.
Leveson said it was “understandable” that the High Court judge who awarded damages was “constrained by the weight” of judicial guidance on section 20 that had emerged since 2007, which had put an emphasis on obtaining continued consent in section 20 arrangements. However he said the judge “was wrong to do so” because the statute “does not require” such consent to be established.
No express duty
“In the circumstances, I would reverse his finding that the retention of the children after the period of 72 hours was unlawful and, equally, that such retention constitutes a breach of the parents’ Article 8 rights,” he said.
“On the basis of the lawfully imposed bail conditions, the interference was in accordance with the law and necessary for the protection of the health or the rights and freedoms of others. It follows that there was no breach of s. 6 of the 1998 Act and damages should not have been awarded.
“There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions…let alone any requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case-law.”
Leveson stressed that his judgment should not be read as altering the content and effect of Munby’s section 20 guidance, which was issued amid concerns over “misuse and abuse” of the arrangements by local authorities.
“It identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed,” he said.
However, to prove a breach of the section 20 statutory duty, “it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’, might require; the authority must be seen to have acted in breach of the terms of the statute,” he added.