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Court of Appeal hold that section 20 voluntary accommodation agreements can be used for established long-term placements

The Court of Appeal has granted two appeals allowing children to be voluntarily accommodated under Section 20 of the Children Act 1989 on a long-term basis, where the placement and care plan are supported by the children's parents.

In Re S (a child) and Re W (a child) [2023] EWCA Civ 1, Lady Justice King, with whom Lord Justice Warby and Lord Justice Arnold agreed, deliberated whether and in what situations, the threshold criteria having been proven and there being in place an agreed care plan, the Court should decline to make an order under Section 31 Children Act 1989 in accordance with the 'no order' principle.

Both S and W were settled in long-term placements in accommodation offered by two different authorities. The placements were meeting their needs and the placements were supported by their parents.

Re S was an appeal against the order of HHJ Atkins of 24 June 2022 whereby he ordered that child S, aged 9 years, should be made the subject of a Care Order in favour of a London borough.

Re W was an appeal against the order of HHJ Coffey dated 16 June 2022 whereby she ordered that girl W, aged 15 years, should be made the subject of a Care Order in favour of a county council.

Lady Justice King considered the differences in law between Section 31 Care Orders and Section 20 CA 1989 voluntary accommodation;

• It was common ground that case law to date had considered Section 20 accommodation to be a short-term care measure for children;
• Section 31 Care Orders grant Local Authorities' parental responsibility. By contrast, Local Authorities do not acquire parental responsibility under Section 20, however Lady Justice King analysed the boundaries of Section 20 accommodation and reviewed the leading authority on Section 20 accommodation, Williams & Another v London Borough of Hackney [2018] UKSC 37. She acknowledged the relationship between parents and Local Authorities in making decisions about children.

Lady Justice King also noted Dame Keegan's comments in Re H-W (Children) (2022) UKSC 1451, that a Care Order should only be permitted if it is the least interventionist Order possible.

Lady Justice King reviewed the 2021 report of the President's Public Law Working Group ('PLWG') and its Best Practice Guidance on Section 20 accommodation. The PLWG suggested that there should be no time restraints on Section 20 accommodation, but where possible, the purpose and duration of any such accommodation should be agreed at the start and frequently evaluated.

The Court of Appeal held that it is important to consider the "no order" principle and that a Care Order should not be made unless it is necessary and proportionate for the child's welfare. The Court of Appeal confirmed that there is no time limit on the use of Section 20 and therefore Section 20 accommodation should not only be used as a short-term measure. It was agreed that both children would remain in their long-term placements under a Section 20 agreement.

Summary:

The Court of Appeal has clarified that children can be voluntarily accommodated under Section 20 of the Children Act 1989 as a long-term measure, without the need for a Care Order, where the placement and care plan are supported by the children's parents.

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