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A Local Authority's powers and duties to accommodate children in accordance with s20 Children Act 1989...

In the matter of Williams and another v London Borough of Hackney [2018] UKSC 37 the Supreme Court considered the limits of a Local Authority's powers and duties to provide accommodation for children in need (as defined by s17 CA 1989) under Section 20, without the sanction of a Court Order.

In accordance with Section 20 of the Children Act 1989 every Local Authority has a duty to provide accommodation for any child in need within their area who appears to require accommodation as a result of:

• There being no person who has parental responsibility for him;
• His being lost or abandoned; or
• The person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

The appellants in this matter are the mother and father of eight children, all under the age of 16. On 5 July 2007, the parents' 12-year-old son was caught shoplifting and told police that he had no money for lunch and that his father had hit him with a belt. The 12-year-old boy was taken to the police station and a Social Worker called. The police then visited the boy's home and found it to be in an unhygienic and dangerous state unfit for habitation by children. The police therefore exercised their powers to remove the children from the home for a maximum of 72 hours and the children were found suitable foster placements by the London Borough of Hackney. The parents signed a 'Safeguarding Agreement' produced by the Local Authority, in which they agreed that their children would remain in foster placements for the present time. The conditions of the parents' bail were that neither was allowed to have unsupervised contact with their children.

The 72 hours of police protection expired on 8 July and on 9 July, the parents went to the council's offices and requested the return of their children. On 16 July the Local Authority decided that the children should be returned home as soon as possible. However, it was not until 11 September 2007 that the children were able to be returned to their parents, once the police bail conditions had been lifted.

The children's parents subsequently issued proceedings against the London Borough of Hackney claiming damages, as well as a breach of their rights under Article 8 of the European Convention on Human Rights (ECHR), which is the right to private and family life. The High Court dismissed all of the claims brought by the parents, apart from the Article 8 claim on the grounds that there had been no lawful basis for the accommodation of the children because the parents had not provided their informed consent to the voluntary accommodation.

The Court of Appeal allowed the Local Authority's appeal, stating that informed consent of the parents was not required, given there had been a lawful basis for the children's need to be accommodated in accordance with Section 20, in light of the bail conditions imposed on the parents by police, which prevented the parents from caring for their children and providing them with a suitable home.

It was stated in this case of Williams v Hackney that removing a child from the care of a parent is very different from stepping into the breach when a parent is not looking after a child, as per the case of Re AS, London Borough of Brent v MS, RS and AS [2015] and Section 20 is designed to give the Local Authority the power and the duty to do so. This case of AS confirmed that the active consent or delegation of a parent who is not looking after (or is prevented from looking after) the child is not required, any more than it is where the child is abandoned or where there is non-one with parental responsibility.

Lady Hale commented that the best approach when dealing with such matters is by informing the parents fully of their rights under Section 20 but a delegation can be 'real and voluntary' without being 'informed'.

The Supreme Court upheld the Court of Appeal's decision that there was a lawful basis for the children's continued accommodation under S20 (due to the parents' bail conditions) and so the finding of the High Court's Article 8 breach was unfounded. Whilst the bail conditions were not an absolute obstruction to the children being returned to their parents' care, Lady Hale concluded that the parents had neither objected nor unequivocally requested the immediate return of their eight children, nor had the parents sought to vary the terms of their bail conditions.

Forbes Comment

Of course every case is dealt with according to its own facts. However, it is a matter of good practice that in every case Local Authorities should provide parents with clear information of their rights in accordance with section 20 of the Children Act 1989, and parents should also be informed of the Local Authority's own responsibilities and powers under the CA 1989 when concerned about a child's welfare, in order to avoid similar claims being made.

Furthermore, it was confirmed by the Supreme Court following their consideration of this matter that there is nothing within Section 20 of the Children Act 1989 which places a limit on the length of time a child may be accommodated without care proceedings being initiated. In theory therefore, a child could remain accommodated by way of a Section 20 agreement for quite some time. That said however, the Local Authority must be aware of their continuing assessment and planning responsibilities for the accommodated child and the need for the child's Care Plan to be kept under regular and frequent review, in order to avoid criticism by the civil courts. The child's case must not be allowed to 'drift'.

Local Authorities must also remain vigilant to the fact that we may start to see more Claimants attempt to bring claims for Human Rights breaches, following the recent Court of Appeal decision in CN and GN v Poole BC. The Supreme Court's decision on CN is expected towards the end of 2018.

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