10 May, 2017
The recently heard Court of Appeal case of London Borough of Hackney v Williams and Anor  EWCA CIV 26 now permits local authorities to accommodate children under Section 20 of the Children Act 1989 without parental consent, contrary to previous widely-accepted case law.
The case of London Borough of Hackney v Williams concerned eight children who were taken into police protection and subsequently placed in local authority foster care, in accordance with the provisions set out under Section 20 of the Children Act 1989, after their home was found to be in a state unfit for children. The children's parents were questioned by police overnight before being released on bail with the condition they did not have any unsupervised contact with their children. The parents of the children later brought a case for judicial review, claiming damages from the local authority under the Human Rights Act (particularly a breach of Article 8 - the right to private and family life), stating that the local authority had breached its statutory duty by continuing to accommodate the children in accordance with S.20, despite the parents' objections.
Section 20 of the Children Act 1989 enables social workers to enter into a voluntary arrangement with parents (or other person with parental responsibility) to bring a child (or children) in need into local authority care.
S20(7) of the Children Act 1989 states:
A local authority may not provide accommodation under this section for any child if any person who—
(a)has parental responsibility for him; and
(b)is willing and able to—
(i)provide accommodation for him; or
(ii)arrange for accommodation to be provided for him, objects.
In light of the fact that the parents were on police bail with the provision they were not to have unsupervised contact with their children, they were therefore prevented in providing accommodation for their children, nor did they themselves arrange alternative accommodation. As a result, the local authority were duty-bound to accommodate the children, despite the parents' objections. The Court of Appeal concluded that considering the facts of this matter, the parents had not provided any valid objection to their children remaining in foster care in accordance with Section 20(7), as described above. The parents' claim for damages failed on the basis there had been no breach of statutory duty by the local authority.
The Court of Appeal then went on to state: "The word 'consent' does not appear within s.20. 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 in S.20(1), (3), (4) and (5), 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 [referred to above]" The Court of Appeal did however note that the previous decisions of the family court judges, as set out in previous case law should be used as 'good practice guidance' from which local authorities will be judged as to their actions.
It should also be borne in mind that whilst local authorities should follow the 'good practice guidance' set out in previous case law relating to Section 20, failure to do so will not automatically give rise to an actionable wrong, a judicial review claim or a claim for damages under the Human Rights Act. As stated above, for damages to be awarded there must have been a clear breach of statutory duty by the local authority. Lord, Sir Brian Leveson P stated: 'Insofar as breach of statutory duty under s.20 is concerned 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.'
Another important point to bear in mind is that this case is very much fact specific. Given the parents' bail conditions, they were unable to provide their children with suitable accommodation, as this would have been in breach of their bail condition not to have unsupervised contact with their children, nor did they arrange suitable alternative accommodation. Had the couple been willing and able to provide or arrange suitable alternative accommodation for their children, the outcome of this case may have been very different, as the parents may well have presented a valid objection in accordance with Section 20(7) of the Children Act 1989.
It is clear from this case that the Court of Appeal is now at odds with the previous decisions of the Family Court Judges in relation to the issue of parental consent and Section 20. Going forward, Local authorities should ensure they continue to co-operate with parents, always ensuring that their actions do not violate a child's nor their parents' human rights in order to avoid, as far as possible, similar future claims being brought.
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