A blog post published yesterday on Skwawkbox suggests that :
We thought that this was likely to really worry not just families from Grenfell but also families elsewhere. Can you lose your kids for rejecting an offer of distant accommodation?
We asked Giles Peaker (@nearlylegal), a housing law specialist, about this. He says :
A homeless household with children will be in ‘priority need’ and therefore likely to be owed the full housing duty by the local authority.
However, a homeless applicant who has lost their previous settled accommodation because of a deliberate act, or failure to act (e.g. due to rent arrears when the rent could have been afforded) will be likely to be found intentionally homeless. In that situation, the local authority only has a duty to accommodate for a ‘reasonable period’ – generally 28 days or so – to enable them to try to find accommodation. After that time the local authority housing department will stop providing accommodation.
Someone who refuses an offer of emergency accommodation, or an initial offer of temporary accommodation, cannot be ‘intentionally homeless’ because of that decision. It is not a decision that has caused them to lose their last settled accommodation.
However, a refusal of temporary accommodation which the Local Authority consider to be reasonable and suitable for the homeless person to accept can lead to the Local Authority ending its duty to house. At that point any existing temporary accommodation will be ended.
The location of the accommodation is part of whether it is suitable. If someone has strong reasons to be housed in the area (like children coming up to exams in school, employment, or medical treatment in a local hospital), then temporary accommodation many miles away is unlikely to be suitable. Someone who has just suffered a deeply traumatic experience and who needs the support of friends and family has a clear reason to be housed in their area.
All of these potential decisions – whether someone is intentionally homeless, or offered accommodation is suitable, can be reviewed – firstly by a higher and separate council officer, and then potentially by appeal to County Court of an issue of law. There is legal aid available for all homeless matters.
However, it is possible that a family will find themselves homeless and without Local Authority owing them any housing duty – after an intentional homeless decision, or a discharge of duty, or if they are not eligible for housing assistance because of immigration status. In those circumstances, if children are facing homelessness, it is likely that the Local Authority’s Social Services will have a duty.
It is not uncommon for homeless applicants to be told, either by the housing department or social services, that they will only have a duty to the children, and will not help the parent(s), so threatening to break up the family. This is often in the hope that those seeking help will simply go away. However, it is not usually possible for Social Services to only help the children.
Thank you Giles.
What about the Family Courts? Can a judge take away your children because you’ve refused distant accommodation?
In short, no.
A court can only order the separation of a child from the care of its parents under an interim care order if there are reasonable grounds to believe that the child is suffering or likely to suffer significant harm as a result of the unreasonable care given (or not given) by the parents AND if the child’s safety demands separation now (it’s a little bit more complicated than that but that’s the gist – Section 31 and Section 38 Children Act 1989). In short, you have to be doing some poor parenting and exposing your child to harm or risk of harm for it to be lawful for a court to take your child away.
Refusing an unreasonable offer of accommodation doesn’t give grounds for taking away your child. Making a really bad decision that puts your child at risk of harm might. In a real emergency the police can step in and take a child, but only for a maximum of 72 hours when the child must either be returned or the matter must go to court.
What’s the social services duty that Giles refers to?
Giles is talking about Section 20. Section 20 is a bit of the Children Act 1989 which allows or requires a Local Authority to accommodate a child (not a parent) in certain circumstances without the involvement of a court. This can usually only happen where the parent agrees (for example because they are temporarily unable to care through illness), but the court has confirmed that if they can’t provide any accommodation then social services still have a discretion provide accommodation under section 20 even though the parent objects (Section 20(7) and London Borough of Hackney v Williams & Anor  EWCA Civ 26 (26 January 2017)).
BUT…it isn’t as simple as saying that because the parent can’t provide accommodation the child can be taken. Because using Section 20 in this way would only be lawful if it also complies with the right to protection from interference with private and family life (Article 8 of the European Convention on Human Rights). Article 8 rights can only be interfered with (for example by separating a family) if that interference is lawful, necessary AND proportionate. Section 20 makes it potentially lawful but it still has to be necessary and proportionate (the least interference possible).
Separating parents and child from one another by taking a child into foster care just because there is no specific statutory duty to house the parents (for example because they are intentionally homeless) is likely to be an unnecessary or disproportionate interference with the child AND parents’ right to family life – there would be no need for them to be separated if the Local Authority found somewhere for all of them to stay together, and the removal wouldn’t be lawful under s31 or s38 of the Children Act either.
Incidentally, the headline of the Skwawkbox piece is not quite right either. Even IF children were removed under section 20 it wouldn’t give social services “custody” of them, in the sense that the parents would still be the only people to hold parental responsibility. Custody isn’t technically the correct term for this, but parental responsibility is the closest equivalent to what is generally meant by custody (the rights held by a parent to make decisions for a child). The only way social services can get parental responsibility is if the court makes a care order. Even when a child is accommodated under section 20 the parents retain full rights.
Any family offered housing they consider inappropriate and worried about being considered intentionally homeless or denied accommodation for the adults, should contact a specialist housing lawyer or law centre as a matter of urgency. See http://find-legal-advice.justice.gov.uk or http://england.shelter.org.uk/get_advice/going_to_court/advice_and_representation. Free legal aid is available.
In cases where social services have been or are about to be involved in the removal of a child from his parents free legal aid is also available. You should contact a family specialist lawyer as a matter of urgency : See http://find-legal-advice.justice.gov.uk. You can read our guidance note on section 20 here.
We’ll add a link to this post to the comments on the original skwawkbox blog.
Feature pic : courtesy of PRO70023venus2009 on Flickr – creative commons licence. Thanks!