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Williams v The London Borough of Hackney: Guidance for parents and local authorities on the use of s.20 Children Act 1989

Louise MacLynn, Sharon Segal and Olivia Magennis, barristers at 1GC Family Law who all appeared in Williams v The London Borough of Hackney, consider the implications of the judgment for local authorities, parents and their legal advisers.










 




Louise MacLynnSharon Segal  and Olivia Magennis, barristers at 1GC Family Law

In the case of Williams v The London Borough of Hackney [2018] UKSC 37, the Supreme Court has reviewed s.20 of the Children Act 1989 and given guidance in relation to its application.  Section 20 is an incredibly far-reaching statutory provision and is used in the context of local authorities providing services to unaccompanied minors, disabled children, abandoned children as well as children who are on the edge of care proceedings. 

A significant proportion of case law relating to section 20 deals with when a local authority's duty to accommodate a child applies, in circumstances where the local authority do not wish to accommodate.  Williams v The London Borough of Hackney [2018] UKSC 37 was about the opposite scenario; where a local authority wanted to accommodate but the parents wanted the children back. The question then arose as to what powers the local authority had in those circumstances.  The guidance therefore focuses on that aspect.

Background

The case concerned a claim under the Human Rights Act on the basis that the local authority had unlawfully accommodated the children of the claimants under s.20 of the Children Act 1989.  The claimants were the parents of eight children, ranging from 8 months to 14 years old.  During an incident when the 12-year-old child was caught shop-lifting, he made an allegation that his father had hit him with a belt. The police and social services became involved and the police went to the family home to interview the parents.  The family home was found to be in a state 'unfit for habitation by children' and the police exercised their powers of protection under s.46 of the Children Act 1989 and removed all eight children from the parents' care.  This power could only be exercised for a maximum of 72 hours.

The parents were arrested and interviewed on the same day and released in the early hours of the morning on police bail.  The bail conditions prevented the parents from having unsupervised contact with any of their children, to prevent interference with victims of crime.

The parents attended the offices of the local authority with a view to the children returning home and were asked to sign what was called a safeguarding agreement. However, that agreement did not set out their right to object to the children's accommodation or their right to remove the children at any time.  Both parents signed the agreement.

At the end of the 72-hour period, the parents asked the local authority to return their children but were told that they could not take their children home.  A short time later, solicitors instructed by the parents wrote to the local authority giving formal notice of their intention to withdraw consent to the children's accommodation.  They indicated that the parents wished to work with the local authority and therefore agreed to a further ten days of accommodation so that plans could be made to return the children.

By this stage, the local authority had confirmed that the parents had improved the conditions of the family home and had formed a plan for the children to return.  However, the bail conditions remained in place and the local authority formed the view that it could not return the children until the bail conditions were varied. The social worker's view was that it was for the parents to apply to lift the bail conditions and the local authority refused a request to supply a letter confirming their support to the bail conditions being lifted.

Eventually, some two months after the children were initially accommodated, a senior social worker 'arranged with the police for the bail conditions to be varied' and the children were returned.

No care proceedings were ever commenced.  The police initially charged the parents but later discontinued the proceedings.

After pursuing complaints internally and with the local government ombudsman, the parents made a number of claims against the local authority and in particular claimed damages for breach of their rights under article 8 of the ECHR.

At first instance, the parents' Human Rights Act claim was successful on the basis that the local authority's interference with the parents' article 8 rights was not in accordance with the law and they were awarded £10,000 damages each.  The trial judge found that "the circumstances, combined with the inadequacies of the information conveyed, were such as to amount to the "compulsion in disguise" and that "such agreement or acquiescence as took place was not fairly obtained".  The accommodation of the children after the initial 72-hour period was therefore unlawful.

The local authority successfully appealed, the Court of Appeal finding that there had been a lawful basis for the children's accommodation.  The Court of Appeal held that there was no legal requirement for the local authority to obtain informed consent of parents to s.20 accommodation of children and that in any event, the bail conditions prevented the parents from providing suitable accommodation for the children whether or not they consented to the children being accommodated by the local authority.

The parents then appealed to the Supreme Court, the central issue being whether there was a lawful basis for the children's accommodation under s.20 of the Children Act 1989.

The Supreme Court judgment

The Supreme Court unanimously upheld the decision of the Court of Appeal, although for quite different reasons.  

Giving the leading judgment, Lady Hale set out nine points of guidance in relation to the use of s.20 (at paragraph 38):

a. The starting point is parental responsibility (PR); a person with PR may arrange for some or all of his or her PR to be met by others acting on his or her behalf, but helpless submission in the face of asserted power does not amount to a delegation of PR or its exercise.

b. It may be confusing to talk about consent to removal or accommodation – doing so is simply delegating the exercise of PR for the time-being to the local authority.  Any such delegation must be "real and voluntary".

c. Removing a child from the care of a parent is very different from stepping into the breach where a parent is not looking after a child;  in the latter circumstances the active consent or delegation of PR is not required, but powers exercised in such circumstances are subject to the parents' right to object (s.20(7)) or to remove the child (s.20(8)).  As a matter of good practice, local authorities should inform parents of these rights and also of their other rights, including to know where the child is (para 15 Schedule 2 to the Children Act 1989).

d. Parents may ask a local authority to accommodate their child and the local authority may have a power or even a duty to do so depending on the circumstances – this is a further example of the delegation of PR and again, good practice indicates that parents should be informed of their rights and the local authority's responsibilities.

e. A local authority cannot accommodate a child where a parent is willing or able to do so (s.20(7)).  Any debate about whether a parent is 'willing or able' can only be resolved in the context of court proceedings.  Otherwise, if a parent says they are willing or able to accommodate the child, the local authority cannot accommodate the child against the parents' wishes.

f. The power to remove the child is absolute, save where it is necessary to take steps to protect a person, including a child, from being physically harmed by another.  Therefore, if a parent unequivocally requires the return of the child, the local authority must return him or her or obtain the power to retain the child either via the police or a court order. 

g. The right to object or to request return are qualified where court orders have been made determining where a child should live (s.20(9) and (10)) but are otherwise unrestricted.

h. There are separate provisions for children who have reached the age of sixteen (see s.20(3), (4), (5) and (11)).

i. There is no time limit to s.20 accommodation however local authorities have duties to children whom they are accommodating under the Children Act 1989 and various regulations as well as a duty to act reasonably in general public law terms and to respect the child's and parents' rights under the ECHR.

On the facts of this case, the Supreme Court held that given the initial period of accommodation pursuant to the police powers of protection, the key question in this case was whether the parents' actions after the expiry of the police protection amounted to 'an unequivocal request for the children to be returned'.  The bail conditions themselves 'did not operate to give the council any greater powers than they had under the 1989 Act' and so were not decisive.

The Court found that in their initial discussions with the social workers, it was difficult to construe the parents as having given a 'clear objection' to the continued accommodation or an 'unequivocal request' for the immediate return.  Similarly, the Court found that once solicitors on behalf of the parents became involved, their correspondence did not amount to an objection to accommodation or an unequivocal request for the children's return, and in fact, albeit with some reluctance, amounted to a delegation of the parents' PR until the council felt able to return them.  

Importantly, the Supreme Court differed from the trial judge at first instance and was clear that PR could be delegated to a local authority without the parents being 'fully informed' as long as the parents' action is voluntary.

What are the implications for local authorities?

The following points are the most relevant for local authorities:

a. Where a child has been abandoned or there is no parent actively involved with a child, the position is unchanged and straight-forward – there is no need for active consent or delegation and the local authority must accommodate. 

b. However, where there are active parents involved with the child, the local authority must have a real and voluntary delegation of PR in order to lawfully accommodate.   Thus although the Supreme Court has endorsed the Court of Appeal's move away from a requirement for active consent, the local authority must have an active delegation of PR from the parents.

c. While there is no statutory requirement for the delegation of PR to be in writing, it remains sensible to evidence the delegation in this way.

d. While delegation can be 'real and voluntary' without being 'fully informed' (paragraph 39), the Supreme Court has identified the provision of information as good practice, including (see paragraph 40);

i. Informing parents what they, the local authority have done (if they have removed a child when the parents were missing or were unavailable for example due to ill-health)

ii. Informing parents of their rights under subsections (7) and (8)

iii. Informing parents of their other rights under the Children Act 1989 including to know the whereabouts of their child

iv. Informing the parents of the local authority's own responsibilities to the child.

e. While the requirement to provide the above information is 'good practice' rather than a statutory requirement, most courts can be expected to criticise a local authority which fails to comply with this guidance.

f. In some circumstances, the failure to provide information still runs the risk of a court finding that accommodation was not truly 'real and voluntary' and therefore not lawful.  Therefore, local authorities should follow the guidance so as to avoid the risk of a claim under the Human Rights Act.

g. The fact that there may be bail conditions restricting the parents' contact with or care of the children does not give the local authority any greater powers than they would otherwise have.  Delegation of PR is still required and a parent may remove a child regardless.  If a parent is then arrested however, a local authority is likely to have a duty to accommodate and of course if the local authority considers that the threshold for proceedings under the Children Act 1989, it could issue proceedings.  Police protection may also be a possibility.

h. In terms of returning children, local authorities are not required to do so unless a request is made in unequivocal terms and for an immediate or a timed return.  Local authorities will have to decide for themselves whether parents have satisfied this standard.  There is no requirement that the request for return be in writing.

i. Parents have a right to know (and should be told) where their children are placed and may simply remove them at any time – either from their foster placement or for example from contact (see paragraph 46).

What are the implications for parents?

From the perspective of parents and those advising them, the following are the most relevant implications:

a. If a parent has not delegated their parental responsibility to the local authority in a real and voluntary way, the child's accommodation may be unlawful

b. The local authority should have provided the parents with information about the accommodation, the parents rights and the local authority's obligations – if they have not done this at the time of placement they should do it as soon as possible thereafter

c. Parents seeking the return of their children to do so 'unequivocally' and must seek an 'immediate or timed return'. 

d. There is no requirement that a request for the return of a child be in writing, but given the requirement for the request to be unequivocal, this would be advisable.

e. There will be times when making an unequivocal request leads to the initiation of court proceedings, however as the Supreme Court notes, this is not necessarily a bad thing; there are obvious advantages for a child and the family;  the child will have a guardian and representation, as will the parents, and the court may make orders for contact (see paragraph 51).

f. If there is any debate about whether a parent is 'willing or able' to care for their child, parents are entitled to say that the local authority must either return the child or issue proceedings.  Section 20 cannot be relied upon to lawfully accommodate a child in such circumstances (see paragraph 43).

g. Parents are entitled to simply remove their children in s.20 circumstances – either from foster care or contact.  If a local authority refuses, the Supreme Court has said that the following are the available methods of enforcement:

i. habeas corpus proceedings

ii. relying on the Child Abduction Act 1984. 

iii. the threat of action under the Human Rights Act, despite this ultimately not being successful in the particular facts of the Williams case.

Comment
The Court of Appeal were very critical of judges in the Family Division for importing a consent requirement into s.20 that does not appear in the text of the statute itself.  The Supreme Court has not adopted that criticism in any real sense; while Lady Hale has said "It may be confusing to talk of parental 'consent' to the removal (or accommodation) of her child.  If a parent does agree to this, she is simply delegating the exercise of her parental responsibility for the time being to the local authority" (paragraph 39), there was no specific criticism of the decisions of the lower courts on this issue (following an extensive review) and the word "consent" creeps back into the Supreme Court's analysis from time to time (see for example paragraph 40).  The words 'real and voluntary delegation of parental responsibility' do not appear in the text of section 20 any more than the word 'consent' but the Supreme Court has held that this is what is required.

It might be argued that the requirement for real and voluntary delegation of PR protects parents in much the same way as a requirement for consent in the sense that it requires an active step on their part.  However, delegating PR to a local authority could be seen to give local authorities a much broader power than simply consenting to the specific issue of accommodation.  The whole point of section 20 after all is that local authorities do not acquire PR, which remains in the sole hands of the parents at all times.  An unintended consequence could be that parents may be less willing to agree to their child being accommodated if that means that in doing so they also delegate parental responsibility.

It might also be said that from the perspective of social workers and parents on the ground, the concept of 'consent' to accommodation is much easier to understand than 'real and voluntary delegation of parental responsibility' which is rather more 'legal' in tone, and that this requirement may be more difficult to implement and off-putting to parents in practice.

The requirement for a request for the return of a child to be 'unequivocal' and for the child's immediate or timed return does appear to import a gloss on the wording of s.20(8), and it remains to be seen whether parents find it more difficult in practice to remove their children from s.20 accommodation.  The fact that Lady Hale says that in terms of enforcement "the simplest step would be to remove the child" (paragraph 46) may be a little surprising to practitioners used to making sensible arrangements for these matters – particularly in the context of the Supreme Court also emphasising the local authority's duty to inform parents of their right to know the whereabouts of their child (paragraph 40).  However, if a local authority does have concerns about disclosing to a parent where a child is staying or is worried about a parent turning up and removing the child, this is perhaps a good indication about whether the parents' agreement to accommodation is genuinely voluntary.

Finally, it is interesting to note the other remedies the Supreme Court felt were open to parents; issuing a writ of habeas corpus or relying (somehow) on a local authority potentially committing an offence under the Child Abduction Act 1984.  In practice, these may not be the easiest enforcement methods to use.  Lady Hale did go on to say "But far preferable to any of these is for the local authority promptly to honour an unequivocal request from the parents for the child's immediate (or timed) return".  Not many people are likely to disagree. 

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