“Parents with parental responsibility always have a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child is to live). Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.” – Lady Hale, para 64
Williams v LB Hackney is a widely awaited judgment from the Supreme Court because the issues centred on the lawful use of s 20 Children Act 1989 – known as ‘voluntary accommodation’. This is a controversial area, on which The Transparency Project has issued a guidance note here. (This may need be updated a little in light of the new judgment published today.) The judgment applies equally to practice in using s. 76 Social Services and Well-being (Wales) Act 2014.
Here is a very brief outline of the new decision:
Mr and Mrs W. have eight children who were lawfully removed under police protection powers on 5 July 2007. They were lawfully placed in foster care by Hackney Council during the 72 hour period that police powers apply ( s 46 Children Act 1989). On 6 July, Mr and Mrs W were asked to sign a ‘safeguarding agreement’ with the Council agreeing to foster care continuing. This meant that s 20 had come into effect and the children were now looked after by Hackney, ostensibly with their parents’ consent. However, the parents had not been informed that under s 20 they could object and remove the children (i.e. take them home). If there is no court order in place, this is the position. On 13 July, a lawyer for Mr and Mrs W gave notice to Hackney that consent under s 20 was withdrawn, and Hackney decided on 16 July to return the children as soon as possible. However, there were bail conditions in place (a police matter) that stipulated that Mr and Mrs W were not to have unsupervised contact with the children. This was because the police wanted to prevent interference with potential witnesses. It took the Council, police and court until 6 September 2007 to have those conditions varied, and the children went home on 11 September. At a later stage, the criminal proceedings against the parents were discontinued.
In 2013 (six years later) Mr and Mrs W issued a number of applications, including one for damages for breach of their Artlcle 8 European Convention right to respect for family life, claiming that the accommodation after 72 hours had no lawful basis. This particular claim did succeed in the High Court and the parents were awarded £10,000 damages. The Council appealed and the Court of Appeal reversed that decision, saying that consent was not required.
Mr and Mrs W then appealed to the Supreme Court.
In the judgment published today, Lady Hale explains that the appeal has been unanimously dismissed because the Council’s actions were lawful. The parents had not objected to the continued accommodation nor requested the immediate return of their children. While the bail conditions were not an insuperable impediment to the request, the solicitor’s letter was not an objection nor a request for immediate return. The solicitor was sensibly trying to arrange a timely return and avoid care proceedings. Even if the Council had acted more quickly in supporting an application to vary bail, this might not have succeeded, given the police concerns at the time.
Although this judgment does not appear to materially change the way in which s 20 works, the observation by Lady Hale in the last paragraph (see above) is helpful in reaffirming the legislation. The basis of the Supreme Court decision – that the letter did not meet s. 20 criteria for immediate return – is perhaps more satisfactory than that of the Court of Appeal, which had suggested that the bail conditions nullified the requirement for consent.
(This is the wording in the letter:
“Mr Williams wishes us to give you formal notice of his intention to withdraw consent to the accommodation of his children under section 20 of the Children Act 1989. He wishes to continue to work co-operatively with the local authority and will therefore agree to their continued accommodation for a further ten days, to Monday 23 July 2007, in order that the local authority can make any further investigations necessary to plan for the stable rehabilitation of the children to their parents’ care.
In the event that the local authority feel unable to arrange for all the children to return home within this time frame, then we ask for details of the proposed timescales for returning each child currently being accommodated and the basis for those timescales.”)
Image: By ChrisVTG Photography [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], from Wikimedia Commons)