A recent Supreme Court ruling on the lawfulness of a section 20 arrangement included general commentary on the practice and a set of principles on how it should be correctly applied.
Cathy Ashley, chief executive of the Family Rights Group, a charity which was an intervener in the case, said the case pointed towards the need for “statutory practice guidance on the use of voluntary arrangements” which should be actioned by the government.
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.
At this year’s event, the legal learning sessions are reserved to those who book their places, for a small fee, so reserve your place now to avoid missing out.
“Section 20 is a family support provision, premised upon partnership working between families and the state, for the welfare of children. We welcome the principles set out by Lady Hale, on behalf of the Supreme Court in helping clarify the use of section 20.”
Here are the nine principles the Supreme Court laid out for section 20:
This must be the starting point for practice, the Supreme Court said.
“A local authority cannot interfere with a person’s exercise of their parental responsibility, against their will, unless they have first obtained a court order. Accordingly, no local authority have the right or the power to remove a child from a parent who is looking after the child and wants to go on doing so without a court order. Only the police can do that under section 46 [Removal and accommodation of children by police in cases of emergency] of the 1989 Act,” the judgment said.
It clarified: “Helpless submission to asserted power does not amount to a delegation of parental responsibility or its exercise.”
The judgment said it could be confusing to refer to consent in regards to a removal or accommodation of a child.
It said if a parent does agree to a voluntary order, they are delegating the exercises of parental responsibility for the time being.
“Any such delegation must be real and voluntary,” the judgment said, otherwise the authority has no power to interfere with parental responsibility. It said the best way to avoid confusion was to fully inform parents of their rights under section 20, but it said a delgation can be real and voluntary without being fully informed.
Stepping into the breach
The judgment clarified a difference between removing a child from a parent and “stepping into the breach” when a parent is seen as not looking after the child.
“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 than it is when there is no-one with parental responsibility or the child is abandoned or lost,” the judgment said.
“In such cases, as a matter of good practice, local authorities should give parents clear information about what they have done and what the parents’ rights are. This should include, not only their rights under subsections (7) and (8) [of section 20], but also their rights under other provisions of the 1989 Act, such as that in paragraph 15 of Schedule 2 [Promotion and maintenance of contact between child and family in the Children Act 1989] to know the whereabouts of their child. Parents should also be informed of the local authority’s own responsibilities. In appropriate cases, this may include information about the local authority’s power (and duty) to bring proceedings if they have reasonable grounds to believe that the child is at risk of significant harm if they do not,” the judgment said.
In circumstances where parents ask the local authority to accommodate a child arrangement this acts as a delegation of parental responsibility for the time being.
It does not require the consent to be informed, however as a matter of good pratice “parents should be given clear information about their rights and the local authority’s responsibilities”.
Restrictions on power
An authority cannot accommodate a child if a parent with parental responsibility is willing and able to either accommodate their child or arrange for someone else to do so. Section 20 says nothing about the suitability of the parent or of the accommodation which the parent wishes to arrange.
“If the local authority consider the proposed arrangements, not merely unsuitable, but likely to cause the child significant harm, they should apply for an emergency protection order.”
Removing the child
It is absolutely clear that a parent with parental responsibility may remove the child from accommodation provided or arranged by a local authority “at any time”.
“There is no need to give notice, in writing or otherwise.”
The only caveat is the right of anyone to take steps to protect a person from being physically harmed if they felt that was a risk.
“In such circumstances the people caring for the child would have the power (under section 3(5) of the 1989 Act [the meaning of parental responsibility]) to do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child’s welfare,” Hale said.
“It follows that, if a parent unequivocally requires the return of the child, the local authority have neither the power nor the duty to continue to accommodate the child and must either return the child in accordance with that requirement or obtain the power to continue to look after the child, either by way of police protection or an emergency protection order. These can, of course, only be obtained if there is reasonable cause to believe that the child will otherwise suffer significant harm.”
Other court orders
The rights to object and remove are qualified by subsections of section 20 which regard court orders determining with whom a child is to live. For example, if there was a child arrangements order or special guardianship order, then the parents cannot object or remove a child from a voluntary accommodation if the person with who the child lives agrees to it.
“These orders restrict that parents’ exercise of parental responsibility; but without such an order it is not restricted.
Children aged over 16
Section 20 states a local authority should provide accommodation for any child in need who has reached 16 and whose welfare would be “seriously prejudiced” if it wasn’t done.
It is also clear that once an accommodated child reaches 16 a parent has no right to object or remove the child if they are willing to be accommodated by the local authority.
There is nothing in section 20 to place a limit on the time a child can stay accommodated, however other duties around safeguarding and promoting welfare, in consultation with children and parents, means local authorities should think about the longer term.
“Thus 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 the parents’ rights under article 8 [right to a private and family life] of [the European Convention on Human Rights].”