by Caroline Lynch (Principal Legal Adviser, Family Rights Group) and Andrea Hopkins (Legal Adviser, Family Rights Group)
A few weeks ago Community Care ran the headline “Consent ‘not required’ for section 20 accommodation, judge says”, referring to the recent Court of Appeal case London Borough of Hackney-v-Williams. So is the headline accurate? Does it provide social workers with a full picture of what this decision means for their practice?
Before considering the practice implications, it is important to set out the context of this court case. It was a decision on a Human Rights Act claim, brought by parents whose children were placed in section 20 accommodation without, they said, their consent to that accommodation. The decision turned on whether the actions of social workers, in the particular circumstances that those parents were in (see below), were lawful.
Good practice guidance
Section 20 of the Children Act 1989 includes a power for local authorities social workers to enter into a voluntary arrangement with a parent (or other person who has parental responsibility) to bring a child into local authority care. A number of family court decisions have highlighted examples of poor social work practice being applied in some section 20 voluntary arrangements cases, particularly failure to ensure that parents were in a position to understand and consent to the proposed, or continuing, voluntary arrangement. In these judgments, the judges have set out good practice guidance. The recent Court of Appeal case (London Borough of Hackney-v-Williams) upon which the Community Care headline was based, recognises the value of that good practice guidance for practitioners:
Sir Brian Leveson, P at paragraph 77: “The guidance given in the family court, … 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.”
In the LB Hackney-v-Williams case, eight children had been placed in local authority foster care. This was at first under police protective powers for 72 hours, and thereafter under powers the local authority which it said it was exercising in line with the provisions of section 20 of the Children Act 1989 to provide accommodation for the children.
The children’s parents, Mr and Mrs Williams, brought a case for judicial review in the High Court to claim damages from the local authority under the Human Rights Act. Their claim was that the local authority had breached its statutory duty by unlawfully continuing to accommodate the children in foster care at a time when they (the parents) were not consenting to this.
The Court of Appeal had to look at the precise terms of section 20 Children Act 1989. They highlighted that whilst ‘consent’ does not form part of the text of the section, the question of the ability of a parent to object to a section 20 voluntary arrangement does.
Specifically, section 20(7) sets out that a voluntary arrangement for a child to come into care cannot go ahead (or continue) in the face of an objection from a parent who is ‘willing and able to provide accommodation’ or ‘willing and able to arrange for accommodation to be provided’ for the child.
What is particular about this case is that Mr and Mrs Williams were on police bail with conditions not to have unsupervised contact with their children. Those bail conditions had the effect of preventing them from being ‘able to provide accommodation’ for their children. The local authority was under a duty to provide accommodation because the parents were prevented from doing so.
Although the parents then objected to this, they had not suggested someone else who could care for the children and therefore the Court determined that they could not be viewed as having been ‘able to arrange accommodation’ for the children.
So it was, in light of those specific facts, that the Court of Appeal concluded that there was no valid ‘objection’ by the parents to the children remaining in foster care in the way that section 20 (7) describes there can be. The parents failed in their damages claim because there had been no breach of statutory duty by the local authority.
It is important to remember that in cases where a parent (with parental responsibility) objects, AND is willing and able to provide or arrange accommodation for their child, it would not be lawful for the local authority to accommodate (or continue to accommodate) the child.
Further, the Court of Appeal emphasised the voluntary nature of accommodation under section 20 by reference to section 20(8), which states that a parent (with parental responsibility) has the right to remove their child from accommodation at any time. This applies even if the parent did not initially object to the placement.
There is nothing in this decision that changes the need for local authorities to act in co-operation with parents, and in ways that do not violate the human rights of children and parents. The good practice guidance that has been established in the case law remains valid, and a measure against which the ‘necessity and proportionality’ of local authority actions will be judged. In many cases, the factual basis for suggesting that a parent is prevented from caring for their child is far less clear than in this case, and the concepts of ‘objection’ and ‘consent’ are more closely linked.
This recent decision reinforces just how timely it is that a Knowledge Inquiry into section 20 voluntary arrangements is being conducted by Family Rights Group on behalf of the Your Family, Your Voice Alliance. The inquiry is examining the original purpose and intention behind section 20; whether that is still valid today; how section 20 is presently being used; and what needs to change.
The inquiry is inviting all those with experience or an interest in this issue including social workers, lawyers, families and children and young people and academics complete an on-line survey. The deadline for contributions is 6 March 2017 and the inquiry report will be available in early Summer 2017. Further information is available on the inquiry webpage.
Caroline Lynch is a principal legal adviser at the Family Rights Group, and Andrea Hopkins is a legal adviser at the Family Rights Group