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The Child in Need and s.20 of the Children Act after Southwark

David Bedingfield, of 4 Paper Buildings reviews the background to s20 of the Children Act and its application in recent cases concerning the duties of local authorities and provision of services for children in need.

image of David Bedingfield barrister 4 paper buildings

David Bedingfield, 4 Paper Buildings

The idea that government, in some form, has a duty to care for children abandoned by their parents dates at least from the middle ages. From the beginning government has grappled with numerous policy decisions: how does the state manage the conflict between providing help to abandoned children and providing punishment to the mothers and fathers who abandoned them? How does the state manage the rationing of resources?  How does the state resolve the inevitable conflicts that arise when deciding disputed claims for the limited resources available? And, crucially, how does the state treat a teenager who is beyond parental control?

Four and half centuries later, the same problems continue to confound local authorities and courts. Several recent cases show the House of Lords and the Court of Appeal grappling with the difficult issue of defining—and enforcing—this duty of care to abandoned children. These cases reveal the state fumbling with the same policy questions it has since the 16th century: How does the state choose which applicant for state aid is worthy and which is not?

The historian Paul Slack, in his study of the English Poor Law,1  notes the early conflict between providing help and providing punishment.  Slack points to an Act of 1531 “Concerning Punishment of Beggars and Vagabonds” (22 Henry VIII c 12), which provided for those found idle or destitute to be whipped and returned to their place of birth. An Act of 1547 provided that the children of vagabonds were to be put to service.

Individual towns and cities began in the middle of the 16th century to provide public aid to children left abandoned by their parents. By 1569, Ipswich was operating a combined prison and hospital for needy children. In 1570, a report published by Norwich noted that there were more than 2000 beggars in the city. The local government imposed a compulsory rate, ordered all beggars “not belonging to the city” to leave and ordered the employable to be put to work.

The historian A L Rowse described the problem faced by 16th and 17th century English legislators:

“In the medieval world begging was endemic, and the early 16th century government interfered very little with the matter. But the profound disturbances that overtook society, economic even more than religious, immensely aggravated the problem. It was a complex one: there were the aged and impotent poor incapable of fending for themselves; and there were the children; there were the able-bodied who, people thought, should provide for themselves; there were vagrants, gypsies, rogues, the incorrigibly wandering and idle.”

A series of bad harvests at the conclusion of the 16th century, along with the price inflation caused by discoveries of precious metals in the New World, forced the land owners who controlled Parliament to pass a national relief act in 1601. Rowse describes the scene:

“A great committee containing a large proportion of the House met in Middle Temple Hall and hammered out the necessary legislation, throwing over the dozen or so drafted bills they had before them in favour of a new bill simple and bold. The essence of it was national enactment of a compulsory poor rate; the JP’s were to appoint two to four overseers of the poor in every parish, to levy the poor rate by distress, to assent to the binding of poor children as apprentices. Quarter sessions were empowered to take order for the erection of work houses, to set the able bodied to work and provide for the infirm.” 2

Once enlightened thinkers accepted the idea of state support for abandoned children, the question then became how the state should exercise its parental role. It was easy to say that the state should bear a responsibility to mould an abandoned child in some appropriate way; the difficulty was in determining what the appropriate mould should be. Conditioning poor children to labour seemed to the 17th century mind the most sensible answer. Provision was therefore made in the Poor Law 1601 for apprenticing the young. Charity schools were also established to offer basic instruction to children of the Poor House, but by the 1720s the charity schools began instead to send those children to work. Once local officials realised that abandoned children were available as cheap labour, thereby driving down local wage rates, and keeping the Poor Law rates low in the bargain, there began an exodus from the Poor House school yard to workshops and farms.3 

The historian Basil Williams has described the brutal treatment regularly meted out in the 18th century to abandoned children:

"Perhaps the most lamentable aspect of the Poor Law system . .  was its treatment of pauper children, especially in London. Here the system was for the overseers to send these as infants either to the workhouse or to parish nurses for a fee of 2s.6d. or less a week. Most of these infants were utterly uncared for and many actually starved to death. A committee in the House of Commons in 1716 found that of 1200 children christened in the one parish of St-Martin’s-in-the-Fields, three-quarters died within the year. . . The pauper children who survived this holocaust were hardly better off, for as soon as possible, they were apprenticed to learn a trade under some master for a premium ranging from £2 to £10. The apprenticeship lasted until the age of 24, and though some masters taught their apprentices to be craftsmen and treated them decently, there was practically no control over the many inhuman wretches who starved and beat them and taught no trade except that of stealing."4  

Historians point to numerous reasons for the changes in treatment of the abandoned young during the 19th and 20th century. Newspapers—and the novels of Charles Dickens—no doubt had an impact on public opinion. It is also right that the increasing wealth of the middle classes made charity a possibility. The Charity Organisation Society was founded in 1869 and by the 1880s the charity was sponsoring courses in “social work” for those who would be working with children. The society’s social workers have been criticised as often blaming the victim more than providing social aid, but their efforts contributed to greater public understanding of child abuse and neglect.  The Education Act 1870 had not made education mandatory, but in 1880 Parliament took the next step of making education compulsory for all children aged 5 to 10. This, the historian Eric Hopkins has pointed out, forced the public to take note of what had before been a problem hidden in dirty slum dwellings.5  Thousands of malnourished, dirty children attended school for the first time. Charity organisations began to supply free or cheap meals to school children. The Birmingham Schools Cheap Dinner Society reported in 1889 that many children were so poor that they “could no more find a halfpenny for a dinner than they could find a half-sovereign.”6

It is also right, as Hopkins notes, that the Boer War, and the difficulties encountered by a British army made up of malnourished, undereducated recruits, made those in charge of Empire realise that attention must be paid to the working (and work-less) classes. For all of these often contradictory reasons, the Liberal government elected in the reformist election of 1906 was able to enact the Children Act 1908. That Act lays the groundwork for all child-related legislation in the 20th century. The Act allowed for the removal of children to places of safety if they were seen to be neglected or mistreated by their parents. The Act set down requirements for those who were fostering children. The Act ended the practice of treating children and adult criminal offenders in the same manner.

The basic thrust of the 1908 Act remains in place today: the state, acting through local authorities, owes a duty of care to abandoned, neglected or abused children.

But the problem, since 1908, has been three fold: 1) how do you define the duty? 2) how do you enforce the duty? 3) How does the state equitably ration scare resources?

Parliament has sought to solve these dilemmas in Part III and IV of the Children Act 1989. But the Act provides at least as many questions as answers, as several recent cases have revealed.

The duty of local authorities to provide shelter to teenagers abandoned by their parents (or who have run away from their parents and refuse to return) is now set out at section 20 of the Children Act 1989. These “children” very often are acting as if they were adults, and they are often not amenable to anyone—whether the state or a parent—exercising parental responsibility for them. The duty for local authorities to provide housing for homeless adults, however, is governed by Part VII of the Housing Act 1996, which imposes upon the local authority duties in respect of providing accommodation for those who are homeless or threatened with homeless. That legislation, however—precisely as did the Poor Law Act 1601—provides a litmus test for “deserving” applicants. If the applicant is “intentionally homeless,” that applicant is not automatically entitled to settled accommodation.

There are other conflicts that arise when teenagers leave home. If the child moves in with a friend’s family, does the state now owe a duty to that child? Is the child homeless? Is the duty under the Housing Act or the Children Act 1989?

Local authorities owe significant duties to children who are accommodated by them (these are now “looked after children,” and therefore the authority has mandatory duties to them set out by Part IV of the Children Act 1989). If the “Gillick-competent teenager is treated as “homeless” under the 1996 Act, however,  it could be (and has been) argued that no duty of care to a “looked after child” would arise.

Section 20 of the Children Act 1989  provides as follows:

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) . . .

3) Every local authority shall provide accommodation for any child in need within their area who has reached age 16 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 16 but is under 21 in any community home which takes children who have reached the age of 16 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 fare as is reasonably practicable and consistent with the child’s welfare:

a) ascertain the child’s wishes and feeling regarding the provision of accommodation; and
b) give due consideration (having regard to his age and understanding) to such wishes and feelings as they have been able to ascertain;

7)  A local authority may not provide accommodation under this section for any child if any person has parental responsibility for the child and is willing and able to provide accommodation for the child or arrange for accommodation to be provided, objects to the child being accommodated;

8)  Any person with 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.
. . .

11) Subsections 7 and 8 do not apply where a child who has reached the age of 16 agrees to being provided with accommodation under this section.

It is clear the section requires a series of questions to be answered by the local authority upon presentation of the claim. The answers to those questions determine the extent and type of local authority services (and housing) that will be provided.

All of the recent cases where section 20 has been at issue illustrate what might be called the gateway principle of children’s services. The Children Act 1989 provides certain points of entrance where local authority assessments of children are mandatory. Depending upon the results of the assessment, the child will either be passed through the gate and given local authority services, or access will be denied. In the case of an abandoned child, there are two points of assessment. The first is whether the child must be provided accommodation under s.20 of the Act. As Ward LJ sets out in R (A) v Croydon London Borough Council [2008] EWCA Civ 1445, at para 75, the authority during this assessment must ask itself the following:

1) Is the applicant a child?
2) Is the applicant a child in need? (Given the child is homeless, how could the answer be anything other than yes?)
3) Is the applicant within the local authority’s area?
4) Does he appear to require accommodation?
5) Is that need the result of:

a) there being no person who has PR for him;
b) his being lost or abandoned;
c) the person who has been caring for him being prevented from providing him with suitable accommodation or care.

6) What are the child’s wishes and feelings?
7) What consideration, given the child’s age and understanding, should be given to those wishes and feelings?

Every question provides the possibility of dispute, and litigation has been the inevitable result.7

The second point of enquiry is when the local authority considers whether this child in need of accommodation also requires the local authority to exercise parental responsibility. Should the subject child be made subject to the further protections available by the making of a care order in favour of the local authority?

Many of the difficulties with interpretation of section 20 were identified by the House of Lords in the recent case of R (On the application of G) v London Borough of Southwark [2009] UKHL 26, HL, a case handed down 20 May 2009. This was a case involving the decision by a local authority as to whether to accommodate an abandoned teenager under s.20 of the Children Act 1989. In that case their Lordships allowed an appeal against a decision by the Court of Appeal and High Court regarding whether a local authority might avoid the full panoply of its duties to a child accommodated by them under s20 of the Children Act 1989. The local authority sought to argue that if a child otherwise eligible for accommodation under s.20 has available to him or her a Housing Association flat or other housing from some other government or charitable agency the local authority owed no duty of care to that child. The High Court and Court of Appeal agreed with the local authority submissions. The House of Lords did not.

Baroness Hale was surprised that the matter had to reach the Lords, in the light of observations made in the case of R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535. In that case a child had approached the housing association and asked for housing. As Baroness Hale notes, the House of Lords made it clear that the child should have been referred to the children’s authority for assessment.

“It was not contemplated that, had she been assessed as falling within the criteria in s.20(1), she might nevertheless have been referred back to the housing department.”

It is clear that different local authorities have been treating section 20 in different ways. Some almost automatically consider abandoned teenagers to be children in need; others do stringent assessments and offer nothing more than assistance and advice with regard to housing. After the House of Lords’ decision in R v Southwark, this is no longer acceptable practice. 
The decision by the local authority regarding the gateway decision of whether a child should be “looked after” has important financial ramifications for any foster carer for that child. An example of the difficulties faced by local authorities is shown by the case of A (R on the application of) v Coventry City Council [2009] EWHC 34 (Admin), a case heard by Antony Edwards-Stuart QC, sitting as a Deputy Judge of the High Court. In that case, the 17-year old claimant had been living with a friend’s mother since the child was 15. The child had left home because of serious family conflicts. The local authority decided that the claimant was being privately fostered and argued that there was therefore never a duty to accommodate the child. It followed, contended the local authority, that no duty was owed the child under s.20. The claimant’s foster carer, in other words, should look to the child’s parents for help, not the local authority.

The Deputy High Court Judge disagreed. He held a duty under s.20 of the Children Act 1989 had arisen when the foster carer contacted the local authority and told them that the child was now homeless and looking for accommodation.  The child had told social workers that he wanted to stay with his friend’s mother, and the social worker assessment was positive. The proposed carer, however, told social workers she could not care for the child without some financial assistance.  Eventually the local authority agreed to a small payment under s.17 of the CA 1989, but contended that no further fostering allowance should be paid.

The Deputy High Court Judge sought guidance from the Court of Appeal’s decision in London Borough of Southwark v D [2007] EWCA Civ 182, CA. In that case, a child whose mother lived in Jamaica came to England to live with his father. That relationship then broke down. The child was living with a friend of the father’s. That friend sought help from the local authority.  The question before the Court was whether the child qualified under s.20 of the Act. The Court of Appeal noted that it was

“. . . prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to  provide accommodation for a child, to side step that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case. Usually a private fostering arrangement will come about as a result of discussions between the proposed foster parent and the child’s parents. But we accept that there might be occasions when a private arrangement is made without such direct contact. . .  However, where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its duties as a public authority pursuant to sections 20 and 23. . . . If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that sh/he must look to the person with parental responsibility for financial support.” (See Para 38)

The reasoning here is that if the foster parent is told that he/she must look to the parent and not to the local authority—and that proposed carer says, well, no, in that case I cannot care for the child—then the local authority must reconsider its position. In the case before the Deputy High Court Judge, the Court noted that the local authority had been acting in a manner consistent with its duty to an abandoned child, rather than simply facilitating a private fostering arrangement.

Another case where a local authority sought to evade its duties to a homeless teenager is R (on the application of MM) v London Borough of Lewisham [2009] EWHC 416 (Admin), a case decided by the Deputy High Court Judge Sir George Newman. In that case, a 17-year old was living in a refuge after leaving her partner because of domestic violence. The local authority determined that she was not a “child in need” under s.17, and did not require accommodation under s.20. The Deputy Judge of the High Court concluded that the local authority’s assessment was flawed. The court therefore quashed the local authority’s decision.

One way to determine the contours of local authority duties is to provide money damages for children who have been failed by local authorities. The extent of the duty will be defined, case by case, by judges deciding whether on a set of facts a local authority had failed in its duty of care. That is one reason it is disappointing that Munby J was unable—quite understandably—to give any judgment in the compromised case of S (By the Official Solicitor) v Rochdale MBC and another [2008] EWHC 3283 (Fam). The case concerned the extent of the duty owed by a local authority that was accommodating a child under s.20 of the Children Act 1989. The child was a teenager, accommodated by her mother, who then played no role in the child’s life. Therefore no one actually exercised any parental responsibility for the child, save the local authority, which held no care order. The child, at age 15, began to abscond from her placements, and soon became pregnant. Her child was taken into care. Eventually the Official Solicitor brought judicial review proceedings against the local authority, contending the authority should have instituted care proceedings regarding the child. The OS sought a declaration and money damages. Eventually the claims were settled by compromise, and one aspect of the compromise was a confidentiality clause.

Nevertheless the claimants sought a Guidance Judgment from Munby J regarding the extent and contours of a local authority’s duty to a child under Part IV of the Children Act 1989, in particular where an abandoned teenager had been accommodated by them. When is it appropriate for the authority also to hold parental responsibility? Munby J declined to give a guidance judgment, noting the absence of any disputed claims before him, but he did attach as appendices to his judgment the Official Solicitor’s submissions regarding the deficiencies in this case, and in local authority services generally under s.20 of the Act.

In the case before Munby J, the child had already been accommodated. The issue before the Court, if the matter had not been compromised, would have been the duty surrounding the second gateway. The OS argued that the child should have been made the subject of care proceedings, and the local authority should have sought to share parental responsibility for the child.  At some point, the OS would have argued, the local authority should have determined that this child who was already being “looked after” by them  required the further protection of a care order.

Notwithstanding the spate of litigation caused by the various difficulties encountered by children seeking accommodation under s.20, the Court of Appeal have now held that no “civil right” protected by Article 6(1) of the European Convention for the Protection of Human Rights has been created by section 20.  In the case of A and M (on the application of R) v London Borough of Croydon and the London Borough of Lambeth [2008] EWCA Civ 1445,CA, Ward LJ for the Court held that section 20 does not provide a “civil right” protected by Article 6 because too much discretion is given the local authority to decide what kind of accommodation is to be provided. The child might have a right to some accommodation under section 20, but he has no enforceable claim to any particular type of accommodation. Consequently, Ward LJ held,

". . . the decision-making process of the local authority has the character of exercising a discretionary power which destroys the notion that a right is involved.”(See Para 53 of Ward LJ’s judgment.)

It is likely that Hale J’s speech in R (On the application of G) v London Borough of Southwark [2009] UKHL 26, HL, will make it less likely local authorities will seek to evade their duties under s.20 and s.17. But the difficulties of state provision of aid and housing to teenagers  who are in fact acting as if they were adults will continue to pose difficulties for local authorities—just as it has for more than four centuries.

1 Paul Slack, the English Poor Law, 1531-1782,  (Cambridge Univ Press 1995).
2 Rowse, The England of Elizabeth, The Structure of Society (Macmillan 1964), p 353.
3 See Hugh Cunningham, the Children of the Poor: Representations of Childhood Since the 17th Century (Oxford Univ Press 1991).
4 See Basil Williams, The Whig Supremacy, 2nd Ed., revised by CH Stuart (Oxford Univ Press, 1960), pp 131-132.
5 Eric Hopkins, Childhood Transformed, (Oxford Univ Press 1995)
6 Cited in JS Hurt, Elementary Schooling and the Working Classes 1860-1918 (London 1979). P. 80.
7 It is clear many local authorities have sought to evade the specific duties set out by section 20 of the Children Act 1989.  See, for example, H, Harhanu and B v London Borough of Wandsworth, London Borough of Hackney, London Borough of Islington and Secretary of state for Education and Skills (Interested Party) [2007] 2 FLR 822; (A Local authority cannot determine or specify that they provided accommodation under s.17 when, on the facts of the case, they were also under a duty to do under s.20(1). They cannot finesse away their specific duty under s.20(1), claiming merely to act under their general s.17 duty.); See also R (On the application of Liverpool City Council) v London Borough of Hillingdon (Defendant) and AK (Interested Party) [2008] EWHC 1702 (Admin), where the High Court was required to determine whether the claimant local authority (Liverpool) or the defendant local authority (Hillingdon) had responsibility for the child. K was a national of Pakistan who had sought asylum in the UK. Liverpool assumed responsibility, and assessed K has being an adult, not a child. K eventually moved to Hillingdon, which assessed him and gave him money in order for him to return to Liverpool. Liverpool then sought to avoid any duty at all to K, arguing that Hillingdon had assumed responsibility. Sir James Goudie QC held that Liverpool could not avoid its duty to K, and that pending a further age assessment by Liverpool K should be accommodated as a child.