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Court of Appeal considers consent and section 20 agreements

Appeal allowed against finding that Hackney had breached section 20 requirements

In London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26, the Court of Appeal has allowed an appeal against a finding at first instance that London Borough of Hackney had failed to comply with its statutory duty under the Children Act 1989 section 20 and was liable to pay damages of £10,000 per parent for breach of Art 8 of the ECHR.

The respondents, Mr and Mrs Williams, had argued that Hackney's use of s.20 was unlawful. Although on the face of it they had consented, they argued that consent was unfairly obtained and not true consent of any sort.

The Court of Appeal said that the necessary question to determine is – as a matter of law as opposed to subsequently identified good practice – what was required before Hackney were permitted to accommodate the Williams children pursuant to s.20 (para 62)?

The starting point, the Court said, is the wording of the statute. Subject to the provisions relating to parental objection and/or removal in s. 20(7) and (8), the question is whether, upon the expiry of a period of police protection, s. 20(1)(c) applied to the Williams children in that the person who had been caring for them was 'prevented (whether or not permanently, and for whatever reason) from providing [them] with suitable accommodation or care' as a result of bail conditions which applied to Mr and Mrs Williams. If the relevant parent was so prevented, the local authority was under a duty ('shall provide') to provide accommodation for the children (again subject to parental objection and/or removal) by virtue of s. 20(1) (para 63).

Mr and Mrs Williams were prevented from caring by virtue of their bail conditions, and neither parent applied to vary those conditions. The Court of Appeal found that it would have been wrong for Hackney to conduct itself in a way that was inconsistent with what was known to be a term of the parents' bail. Further, at least in the beginning, the accommodation was not 'suitable' for the purposes of s.20(1)(c) because of its state.

Noting that the word 'consent' does not appear within s.20, the Court found that 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'. Posing the question, whether the previous case-law has authoritatively held, in a manner that is binding on this court, that positive parental consent is required, as a matter of construction of the statute, before a local authority may accommodate a child under s.20, the Court of Appeal found not, stating that it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances. Although the Court of Appeal was clear to express that nothing that is said in its judgment intended in any manner to detract from or alter the terms of the 'good practice guidance' that has been given, the Court of Appeal found that it was necessary 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.

In those circumstances, for the period that the bail condition remained in place, Mr and Mrs Williams were not in a position to provide accommodation for their children within s. 20(7)(b)(ii), and were thus not in a position legally to object whether or not they formally consented. The bail conditions had the twin consequence that the Williams were prevented for whatever reason from providing suitable accommodation (s.20(1)) and were not able to provide accommodation for them in order to trigger their statutory right to object (s.20(7)) (paras 75-76).

The Court of Appeal stressed 'that nothing that is said in this judgment is intended to, or should be read as, altering the content and effect of that guidance [given] in family cases.' The focus of the court in this appeal 'is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act.'  The guidance given in the family court, which has built upon that bottom-line in the period since the Williams' children were removed, 'identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed.' Further, for reasons of good administration, the practice guidance should continue to be followed, notwithstanding the limits of the underlying legal requirements in s.20 that are identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review (para 77).

For the judgment, together with a very detailed summary by Emily Ward of Broadway House Chambers, click here.