The Supreme Court has warned that keeping children in section 20 arrangements for long periods without initiating care proceedings could breach the law, even if section 20 itself does not place time limits on accommodation arrangements.
The judgment, made today, dismissed the appeal of a couple against a Court of Appeal ruling that Hackney council had lawfully accommodated their children under section 20 of the Children Act 1989 and, consequently, had not breached their human rights.
The Court of Appeal had overturned an earlier judgment by the High Court, which had ruled there had been no lawful basis for the children’s accommodation, meaning that the couple’s rights to private and family life, under article 8 of the European Convention on Human Rights, had been breached.
Support with section 20
Get up to speed with the Supreme Court judgment and make sure you know how to apply section 20 in different contexts by signing up for leading barrister Oliver Millington’s legal learning session on the topic at Community Care Live London.
In the session, on 26 September, Oliver will identify misuses and misunderstandings of the law being picked up by the courts and explore the significance of parental consent in section 20 cases.
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However, while dismissing the appeal, the Supreme Court provided commentary on the use of section 20, an area of social work practice that has come under increasing scrutiny in the past few years.
Section 20 provides a duty and a power for councils to accommodate children in specified circumstances, but states that they may not if a person with parental responsibility who can accommodate the child objects. Also, a person with parental responsibility may remove the child at any time.
‘Variety of duties’
There have been a string of critical judgments on councils’ use of section 20 in recent years. In 2015, then president of the family courts, Sir James Munby, issued guidance on section 20 in a Court of Appeal judgment following widespread “misuse and abuse”.
Munby took aim at children being kept in a section 20 as a long “prelude to care proceedings”. This issue was also raised in a judgment earlier this year, in which Justice Keehan said 14 children in Herefordshire had “wrongly and abusively been the subject of section 20 accommodation for a wholly inappropriate lengthy period of time and should have been the subject of legal planning meetings or care proceedings at a much earlier time”.
In the Supreme Court ruling, Lady Hale said that while there was no limit on the length of time a child may be accommodated under section 20, but local authorities have “a variety of duties towards the children whom they are accommodating” that may make it necessary for them to bring care proceedings in particular cases.
“Although it is not a breach of section 20 to keep a child in accommodation for a long period without bringing care proceedings, it may well be a breach of other duties under the Act and regulations or unreasonable in public law terms to do so. In some cases there may also be breaches of the child’s or parents’ rights under article 8 of [the European Convention of Human Rights]”.
She cited the general duties towards looked after children in section 22 of the 1989 Act, including the duty to safeguard and promote their welfare, as relevant provisions to consider.
Hale said it was “scarcely surprising” that judges have “deplored the delay” in bringing care proceedings in section 20 cases.
“Section 20 must not be used in a coercive way: if the state is to intervene compulsorily in family life, it must seek legal authority to do so,” Hale said.
She added: “Although the object of section 20 accommodation is partnership with the parents, the local authority have also to be thinking of the longer term.”
Good practice for social workers is to ensure in every case parents are 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”.
The case was brought against Hackney council by two parents after their eight children were placed in local authority care following a police officer using powers under section 46 of the Children Act to remove the children to suitable accommodation. The power enables children to be kept in care for a maximum of 72 hours if they were likely to suffer “significant harm”.
Both the parents were arrested and interviewed the night the children were placed in care, and were released the next day on police bail. Bail conditions included that they were not to have unsupervised contact with their children. The parents then signed a safeguarding agreement with Hackney council which specified that the children would remain in the foster placements arranged under section 46 for the time being, in effect under a section 20 arrangement.
The parents then requested through their solicitors that the children be returned within ten days and, if this were not possible, for timescales to be provided for their return. The children could not be returned until the parents’ bail conditions were varied, which happened two months later.
The initial High Court judgment ruled that there was no lawful basis for accommodating the children because the parents had not given informed consent. This was overturned on appeal by the Court of Appeal on the grounds that section 20 does not require the consent of a person with parental responsibility – rather, it provides for an arrangement to come to an end if the parent objects.
The Supreme Court agreed that there was a lawful basis for the section 20 arrangement, on the grounds that the request from the parents for the children to be returned home shortly after their arrest was not unequivocal, but was based on working collaboratively with the council to achieve their return.
It said it was clear from letters sent by solicitors to the council 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. The result was a happy outcome for all concerned.”
“It follows that, the parents not having objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under section 20. This means that the ground on which the judge held their accommodation to have been in breach of the parents’ article 8 rights [to a family life] is not made out,” Lady Hale concluded.