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Section 20 Children Act 1989: Consent, Not Coercion – Issue or be Damned

Jacqui Gilliatt, barrister, and Amy Slingo, pupil, both of Four Brick Court, set out lessons to be learned from the recent judgments concerning section 20.

Jacqui Gilliatt, barrister, 4 Brick CourtAmy Slingo, pupul, 4 Brick Court



















Jacqui Gilliatt, barrister, and Amy Slingo, pupil barrister, both of Four Brick Court

It is evident from recent case law that there is increasing judicial concern and dismay regarding the misuse and abuse of section 20 agreements by local authorities. There has been a host of recent cases in which local authorities have been criticised for the following:

In addition in the case of N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 (November 2015) the President identified two further criticisms:

"Firstly the form in which the parents' consent is recorded. Although there is no legal requirement for the agreement to be evidenced in writing he stated that 'a prudent local authority will surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent's signature.'"

Secondly, he considered that local authorities often show reluctance to return the child to the parents immediately upon a withdrawal of parental consent. He held that "a local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence" and went on to say " I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right."


The legislation

Section 20 is in the following terms:

Section 20 – Provision of accommodation for children: general

(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

(2) Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within—

(a) three months of being notified in writing that the child is being provided with accommodation; or

(b) such other longer period as may be prescribed.

(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.

(5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—

(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and

(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

(7) 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.

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.


Section 20 and delay

There have been a number of recent cases where local authorities have been severely criticised for accommodating children under s.20 agreements for unacceptable lengths of time before issuing proceedings, causing cases to drift alarmingly and resulting in unsatisfactory delay and uncertainty in respect of the determination of the children's long term future care. There is also concern that local authorities are using s.20 in order to buy extra time to circumvent the 26 week timetable that starts running as soon as proceedings are issued, thereby defying the very purpose of this time limit.

In Re P (A child: Use of section 20) [2014] EWFC 775 the child remained in foster care for 2 years under a s.20 agreement without the local authority issuing proceedings or devising any plan for his long term care.  HHJ Atkinson stressed the potential harm such delay and uncertainty can have upon a child, questioning "the impact upon P of the changes in his carers over the 2 years before proceedings were issued in circumstances in which he was living away from his parents with no real sense of why or for how long" and "how damaging the process of holding him in s.20 accommodation without any plan for his future will have been for him." She stressed that "it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan." ?

In Northamptonshire County Council v AS and Others [2015] EWHC 199 the local authority accommodated a 15 day old baby under a s.20 agreement in January 2013 and did not issue proceedings until November of that year. Keehan J held that the use of the provisions of s.20 were "seriously abused by the local authority in this case". He also considered the use of s.s.20 in cases involving babies, stating that he could not "conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most."

Keehan J also highlighted the impact of accommodation under s.20 on both the rights of the child and the powers of the court, holding in respect of the child that it "deprived him of the benefit of having an independent children's guardian to represent and safeguard his interests" and in respect of the court that it "deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay".  The judge concluded that this delay had breached the child and mother's Article 6, 8 and 13 rights and ordered that the local authority pay a total of £17,000 in damages.

In Newcastle City Council v WM & Others [2015] EWFC 42 three children were accommodated under s.20 for 1 year and 8 months before a final decision was made in respect of their care. Cobb J reiterated the points raised by Keehan J in the above mentioned case: "In the Northamptonshire case Keehan J had referred to the fact that by using section 20, the Local Authority deprived the child of the benefit of having an independent children's guardian to represent and safeguard his interests. Further, it had deprived the court of the ability to control the planning for the child and to prevent or reduce unnecessary and avoidable delay in securing a permanent placement for the child at the earliest possible time.  The same criticisms in my judgment apply here. In my judgment this was a dereliction of the local authority's duty to bring the issue to the attention of the court, and I regret that valuable time has been lost in the care planning." 

In the recent case of Medway Council v M & T [2015] EWFC B164 a child was accommodated under s.20 for 2 years and 3 months before proceedings were issued. HHJ Lazarus held that this " was unlawful and Medway Council failed to bring proper proceedings in a proper and timely way, in breach of the respect that must be shown to T's and her mother's rights to family life and to fair trial under Articles 6 and 8 ECHR." As a result of this delay and a range of other failings the judge granted a total of £40,000 in damages to the mother and child.

In N (Children) (Adoption: Jurisdiction) [2015] the President provided an overview of the string of cases criticising local authorities for their misuse of s.20 and concluded that the local authority had again misused their s.20 powers in the present case where two children were placed in foster care under s.20 for over eight months. The President held the following:

"Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable. It is, in my judgment, and I use the phrase advisedly and deliberately, a misuse by the local authority of its statutory powers." [para 157]

The President went on to consider the particular impact of the misuse of s.20 in cases with an international element, concluding that "the misuse of section 20 in a case, like this, with an international element, is particularly serious." He criticised the fact that the children's parents (who were Hungarian) had been forced to resort to communicating with them via an interpreter during contact after the children were placed with foster carers who spoke only English and were not a cultural match and had therefore been unable to learn their parents' mother tongue.

He also stressed the detrimental effect of delays caused by s.20 on determining key jurisdictional issues, referring to Moylan J's judgment in the case of Leicester City Council v S & Ors [2014] EWHC 1575 (Fam):

"… the longer the determination of any jurisdictional issue, including under Article 15, is delayed, the more established the child's situation becomes. The more established the child becomes in one jurisdiction, the more that fact in itself will gain in weight and significance. At one extreme, it might, of itself, become determinative. This is in addition to the general principle that delay in the determination of proceedings is likely to prejudice the welfare of the child.

Accordingly, where it appears that jurisdiction (including under Article 15) is likely to be a substantive issue in relation to care proceedings, the local authority, absent very good reasons, should commence proceedings expeditiously so that a forum is available for such issues to be determined as early as possible in the child's life." [paras 8 and 9]


Section 20 and valid consent

Concerns surrounding local authorities' use of s.20 agreements and parental consent often go hand in hand with the problem of delay considered above. Local authorities have been heavily criticised in recent judgments for placing parents under duress when obtaining their agreement to s.20 accommodation, failing to ensure that parents have the capacity to provide the necessary consent, failing to understand what constitutes valid parental consent, and failing to properly inform parents of the meaning of s.20 and their rights under it. 

Capacity to consent: 
Hedley J set out the following guidance in respect of parental capacity in Coventry City Council v C, B, CA and CH (sub nom Re CA (A baby)) [2012] EWHC 2190 (Fam), [2013] 2 FLR 987 [para 46]:

"i) every social worker obtaining consent to accommodation of a child from a parent (with parental responsibility) is under a personal duty to be satisfied that the person giving consent does not lack the required capacity; ii) the social worker must actively address the issue of capacity, take into account all the prevailing circumstances and must consider the questions raised by Mental Capacity Act 2005, section 3 and in particular the mother's capacity to use and weigh all the relevant information; iii) if the social worker has doubts about capacity, no further attempt should be made to obtain consent on that occasion. Advice should be sought from the social work team leader or management."

In Newcastle City Council v WM & Others [2015] the mother was assessed as having severe learning difficulties and was represented by the Official Solicitor in the proceedings as she lacked capacity to litigate. Cobb J considered that: "there is a significant question whether she ever had capacity to consent to the accommodation of her children (it is said, per Dr. Thorpe, consultant psychiatrist, that 'she did not appear to understand the reasons why her children had been placed in foster care'), and whether, in the circumstances, the children were for the extended period referred to above lawfully accommodated" [para 3]. The judge later concluded that "this Local Authority (and regrettably from my recent judicial experience this authority is not alone) failed to pay careful attention to the guidance of Hedley J in Coventry City Council v C, B, CA and CH [2012]" [para 45] and that therefore "for a significant period of time, the children have been accommodated unlawfully." [para 46].

In Medway Council v M & T [2015] the child was accommodated under s.20 upon the mother being detained in hospital under the Mental Health Act. The judge concluded that "it is clear that mother was too unwell to discuss T's accommodation and there are no records whatsoever of any discussion with mother of T's whereabouts and care until her discharge in August 2013". No capacity assessments were undertaken of mother and the local authority even accepted that the 'consents' they obtained should not have been relied upon given mother's lack of capacity.

Duress: 
In Coventry City Council v C, B, CA and CH [2012], Hedley J stressed that the use of section 20 "must not be compulsion in disguise" and that any such agreement requires genuine consent, not a mere "submission in the face of asserted State authority".

In Re P (A child: Use of section 20) [2014] HHJ Atkinson raised concerns about parents being placed under duress to consent to s.20:

"in these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P's accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object."

He also criticised the local authority for failing to take proper steps to obtain the parents' positive consent, stating the following: "on my assessment of the undisputed facts in this case there is real doubt as to whether LBR had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the LBR there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs." He stressed that "it is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him."

In Re W (Children) [2014] EWCA Civ 1065, Lord Tomlinson also raised serious concerns about parents entering s.20 agreements under duress:

"It may not have been intended in this way, but the 'Agreement' of 12 November 2012 which the President has described at paragraph 3 above, is to my mind almost comical in the manner in which it apparently proclaims that it has been entered into under something approaching duress. The mother's consent was needed – or putting it another way the local authority could not "place" the children with the parental grandmother if the mother objected: section 20(7). The preamble to the Agreement engagingly acknowledges that the Agreement has been 'complied' (sc imposed?) for the purpose of ensuring that the mother does not object to the children being accommodated with their parental grandmother. There must be a suspicion that the reason why the mother did not object was because she was made to understand that if her agreement was not forthcoming, public law proceedings would have been instigated. I cannot believe that section 20 was enacted in order to permit a local authority to assume control over the lives of the mother and her children in this way." [para 41]

Equating a lack of parental objection with consent:
In the recent case of Medway Council v M & T [2015] the local authority sought to interpret s.20 as enabling the local authorities, as part of their duty to accommodate, to do so in an open-ended manner without parental consent in circumstances where, because of the emergency of the mother being detained in hospital due to mental ill-health, she was unable to care for the child. The judge viewed this as an "… attempt to reinterpret s.20 as providing lawful authority to detain a child in an open-ended manner flowing from the duty to accommodate under s.20(1)(c), and/or its discretion under s.20(4), which arose because of the emergency of mother being detained in hospital due to mental ill-health". In conjunction with this the local authority appeared to interpret s.20 as requiring the parents not to object to accommodation rather than requiring their positive consent.

HHJ Lazarus strongly rejected both of these proposals and stressed the need for local authorities to obtain positive parental consent before a s.20 placement can be lawful:

"it is quite clear that there was never a lawful accommodation of T in the first place to object to. And therefore these concessions fall short of acknowledging the initial and fundamental failing of Medway Council to respect the mother and T's rights to family life, by respecting the need to obtain her consent, and/or assess her capacity to do so, and issue proceedings if consent could not be properly obtained from the outset." [para 55]

HHJ Lazarus also cited and expressed agreement with the judgment of Munby J in R (G) v Nottingham City Council and Nottingham University Hospital [2008] EWHC 400 (Admin): 

"51. But quite apart from that there seemed to me to be a much more fundamental objection to the case which the local authority was seeking to advance. The argument that K had been lawfully accommodated by the local authority with the consent of the mother was in reality founded on nothing more than the assertion that the mother knew and understood the details of the birth plan (in both its original and its amended form) and that she did not "raise objection" to it, just as it was likewise asserted that, following the birth, she had not "raised objection" to the removal of her new-born baby.

52. No authority of any kind was produced in support of these surprising propositions, that a mother could be said to have given her consent to the removal of her baby merely because, knowing of the local authority's plan, she did not object to it and because, when the moment of separation arrived, she did not actively resist. I am not surprised. They are, with respect to those propounding them, as divorced from legal substance as they are remote from the emotional – and dare a man be permitted to say it – the hormonal realities of the human condition…"

53. I do not wish to be misunderstood. I am not suggesting that consent to the accommodation of a child in accordance with section 20 is required by law to be in writing – though, that said, a prudent local authority would surely always wish to ensure that an alleged parental consent in such a case is properly recorded in writing and evidenced by the parent's signature. Nor am I disputing that there may be cases where a child has in fact, and without parental objection, been accommodated by a local authority for such a period as might entitle a court to infer that the parent had in fact consented.

54. But the local authority here seemed to be going far beyond this. It seemed to be conflating absence of objection with actual consent – a doctrine which at least in this context is, in my judgment, entirely contrary to principle and which, moreover, contains within it the potential for the most pernicious consequences, not least because there are probably many mothers who believe, quite erroneously, that a local authority has power, without any court order, to do what the local authority did in this case.

55. To equate helpless acquiescence with consent when a parent is confronted in circumstances such as this with the misuse (or perhaps on another occasion the misrepresentation) of non-existent authority by an agent of the State is, in my judgment, both unprincipled and, indeed, fraught with potential danger." 


Exceeding the legal limitations of s.20

In Medway Council v M & T [2015] HHJ Lazarus raised the concern that local authorities' current misuse of s.20 enables them effectively to avoid and subvert the alternative statutory means of removing a child from their parents' care that require more stringent tests and controls such as ICOs and EPOs, and in doing so unlawfully interfere with people's family lives and adopt an overly paternalistic approach, contrary to Parliament's intention.

"While I accept there is a tension between the wording of s.20(7) and some of the terminology used in the case law, the presence of the stringent tests and limitations applicable to all other modes of removal of a child from a parent's care under the CA, means that it cannot have been intended by Parliament that "Provisions for Accommodation" under s.20 would have given powers to a local authority that would avoid and subvert those careful provisions in Parts IV and V of the Children Act 1989 that safeguard families from unregulated unilateral actions of local authorities that interfere with their family life.
If that had been Parliament's intention there would have been specific stipulation of it in the wording of s.20, rather than some implied paternalist extra-judicial power. But nowhere in the wording of s.20 is there provision for any 'emergency' or 'discretionary' set of powers flowing from the duty to accommodate a child under s.20 that would override the means by which such accommodation must either be agreed to freely or regulated by the court to leave a local authority with an open-ended accommodation of a child, and which would only be rendered unlawful via an objection. This remains the case however beneficial or necessary the accommodation is considered to be, and whether or not the plan is to reunite the family." [paras 53- 54]


Consequences of s.20 failings

Because of the grave injustices caused to children and their families by local authorities' misunderstanding and misuse of s.20 and the interferences with their fundamental rights that this often entails, there may be severe financial consequences for local authorities found to have abused their s.20 powers. Various local authorities have been ordered to pay large sums in damages to the families affected in recent cases.

In Medway Council v M & T [2015] HHJ Lazarus created a schedule of damages at para 90 of her judgment mapping the awards that have been made in previous cases, which range from £3,000 to over £30,000.  In that case itself she made an order for damages totalling £40,000.

A West London Family Court local practice direction has also recently been made providing that all cases involving a "significant" s.20 delay will listed before a circuit judge. "Significant" has not been quantified (it, of course, being dependent on the facts of the individual case). This is a further indication of the seriousness with which the courts are now viewing the misuse of s.20 and Judge Rowe sitting at West London has herself awarded damages over £3,000 in one case involving a 2 month period under s 20.


Steps local authorities should take in light of the case law

The case law makes it clear that s.20 is to be used as a short-term measure and should not cause a delay to or preclude the issuing of care proceedings.

Local authorities should also heed the advice of Hedley J in Coventry City Council v C, B, CA and CH [2012] in obtaining valid consent and determining fairness and proportionality, namely:

(1) Every social worker obtaining parental consent is under a personal duty to be satisfied that the person giving the consent does not lack the capacity to do so.

(2) In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by s 3 of the Mental Capacity Act 2005, and in particular the mother's capacity at that time to use and weigh all the relevant information.

(3) If the social worker has doubts about capacity no further attempt should be made to obtain consent on that occasion and advice should be sought from the social work team leader or management.

(4) If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed:

i. Does the parent fully understand the consequences of giving such a consent?

ii. Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

iii. Is the parent in possession of all the facts and issues material to the giving of consent?

(4) If not satisfied that the answers to (a)–(c) above are all 'yes', no further attempt should be made to obtain consent on that occasion and advice should be sought as above and the social work team should further consider taking legal advice if thought necessary.

(5) If the social worker is satisfied that the consent is fully informed then it is necessary to be further satisfied that the giving of such consent and the subsequent removal is both fair and proportionate.

(6) In considering that it may be necessary to ask:

i. What is the current physical and psychological state of the parent?

ii. If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

iii. Is it necessary for the safety of the child for her to be removed at this time?

iv. Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

(7) If having done all this and, if necessary, having taken further advice (including where necessary legal advice), the social worker then considers that a fully informed consent has been received in circumstances where removal is necessary and proportionate, consent may be acted upon.

Local authorities may want to approach with great care the obtaining of s 20 agreements from mothers in the aftermath of birth, especially where there is no immediate danger to the child and where there is a doubt that an order would be made.

The President in N (Children) (Adoption: Jurisdiction) [2015] also provides the following pointers in relation to the form of the s.20 agreement:

(1) In cases where the parent is not fluent in English it is vital to ensure that the parent has a proper understanding of what precisely they are being asked to agree to.

(2) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent's signature.

(3) The written document should be clear and precise as to its terms, drafted in simple and straightforward language that the particular parent can readily understand.

(4) The written document should spell out, following the language of section 20(8), that the parent can "remove the child" from the local authority accommodation "at any time".

(5) The written document should not seek to impose any fetters on the exercise of the parent's right under section 20(8).

(6) Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to the effect that 'I have read this document and I agree to its terms.'


Conclusion

The seriousness with which the courts are now scrutinising the use of s.20 and clamping down on its misuse should not be underestimated, as is made clear by the President this month in N (Children) (Adoption: Jurisdiction) [2015] at para 171 of his judgment:

"The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages."

Local authorities need to conduct urgent reviews of any s 20 case and put in place the comprehensive and wide-ranging strategies set out in para 67 of the Medway case (albeit this did not save that Council from a hefty damages bill).  Practitioners representing parents and children need to consider whether to make applications for compensation for abuses of the s 20 provisions.

26/11/15