Is it the end of the road for HRA claims for misuse of section 20 accommodation?

Not in principle – but in practice, maybe.

This post is the opinion of Sarah Phillimore about the impact of London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017) upon claims for damages for breach of human rights in cases where children have been accommodated under section 20 of the Children Act 1989. This case has provoked significant comment from a number of lawyers and social workers – see here from Suesspcious Minds and here from Celtic Knot.

Sarah does not agree that this case means that lawyers can endorse any radical departure from existing good practice guidance – it will still be important to establish that parents have the capacity to understand what is being proposed by section 20 accommodation. Failure to do will continue to put local authorities at risk of acting disproportionately in breach of a family’s Article 8 ECHR rights. However, the Court of Appeal sound an interesting warning about the likely quantum of damages in such cases. For legally aided claimants, who will find the statutory charge bites upon any award of damages, this may well indicate the beginning of the end for viable HRA claims for the publicly funded.

FACTS

The 8 children of Mr and Mrs Williams went into foster care for 2 months in 2007 after the eldest child said he had been beaten and the police found the family home in a very bad condition. Initially, the children were taken into police protection. This is lawful for no more than 72 hours. On expiry of that period, the LA removed the children into foster care as the parents were subject to bail conditions that they could not have unsupervised contact with the children.

The Williams initially signed an agreement for the children to be accommodated under section 20 of the Children Act 1989. Thus, they retained parental responsibility and it should have been made clear to them that under section 20(8) they could remove their children from foster care at any time. If the LA did not think it was safe for the children to be removed, their only lawful option would be to apply to the court for either an emergency protection order or an interim care order.

It is possible that their full legal rights, including this right of immediate removal, were not fully explained at the time. However, the parents quickly obtained legal advice and there was no doubt that Mr Williams’ lawyer at least understood the relevant legal framework. The lawyer wrote to the LA saying that Mr Williams would consent to accommodation until the 23rd July 2007. The LA agreed that the children should go home but noted the bail conditions were still in place that prevented the parents from offering their children accommodation. The Williams had the right to apply at any time to vary these bail conditions, and it was clear that their lawyers knew this, as they referred to it in correspondence. However, the Court of Appeal felt it important to note that it was likely that the Williams wished to work co-operatively with both the police and the LA and not get involved in contentious proceedings.

The police did not vary the bail conditions until the 6th September and the children returned home five days later.

There were no criticisms of the initial police actions to remove the children for 72 hours. However, the subsequent action of the LA to accommodate the children saw the following 9 years spent in litigation as the Williams’ pursued various legal claims that their children had been wrongly removed.

Why did the Court of Appeal overturn the first instance decision?

In 2015 the court held that the LA were liable to pay damages of £10,000 to each parent for breach of statutory duty and consequent interference with the parents’ Article 8 rights. The LA appealed and won. Why then did the Court of Appeal agree the first instance decision was wrong?

At first instance, the parents had argued that their consent to section 20 accommodation had been unfairly obtained and was not thus ‘true consent’. The Court of Appeal examined this claim from para 43 of their judgment, by looking at the guidance provided in both Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J. and by Munby J in the earlier case of R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin).
In the Nottingham case, the LA were held to have acted unlawfully; their argument that they were justified in removing a baby without a court order because the mother knew of their plan and ‘did not object’ was rejected in the strongest terms as an unacceptable and dangerous conflation of ‘absence of objection’ with ‘actual consent’.

The Coventry case considered the issue of the capacity of a mother to give informed consent to the removal of her new born baby and offered general guidance to ensure that social workers had properly considered that the consent offered is real. However, as the Court of Appeal note at para 48 – good practice guidance does not have the force of law. Further, the circumstances of the Williams were markedly different to those of the mothers in the cited cases; in particular the fact that the bail conditions imposed by the police, over which the local authority had no control, prevented the children from living with them..

The Court of Appeal then considered the case law that had arisen since the decision in the Coventry case: Re B (Looked after child) [2013] EWCA Civ 964 (sub nom Redcar and Cleveland Borough Council v Others); Re W (Children) [2014] EWCA Civ 1065; and Re N (Adoption: Jurisdiction) [2015] EWCA 1112.

These cases all touched upon the issue of active objection or passive consent to section 20 accommodation. The Court of Appeal noted the President’s firm words in Re N :

The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages.’

The Court of Appeal commented that the case law they had considered set out good practice guidance which had been offered prior to the Williams’s children going into foster care It was therefore necessary to examine what the law said (see para 62 onwards). The key consideration was section 20(7):
‘(7) A local authority may not provide accommodation under this section for any child if any person who:
(a) has parental responsibility for him; and
(b) is willing and able to:
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
objects.’

The Court of Appeal commented at para 68:

The word ‘consent’ does not appear within s. 20. 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 to which I have referred. Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages pursuant to s. 8 of the Human Rights Act 1998, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, 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.

The Williams could not have offered accommodation. The statutory test was not whether they offered consent but whether they actively objected. They would only have been able to do that if they had applied to vary the bail conditions, over which the LA had no control. Therefore the Court of Appeal did not agree that there was a breach of statutory duty here and thus no damages should be paid.

The Court of Appeal made brief comment about the level of damages awarded at para 87 of their judgment. Having decided that no damages should be paid, they did not need to determine quantum but expressed clear view that £10,000 was too high in any event.

ANALYSIS

I do not think that this case has any significant impact on the principle of HRA claims. The Court of Appeal are quite right to re-direct our attention back to the explicit words of the statute, where the word ‘consent’ is indeed not mentioned. However, this does not mean that the general good practice guidance offered in other cases becomes irrelevant, and the Court of Appeal expressly recognise this.

This case involved parents who could not offer a home to their children so long as the police bail conditions remained in place. The local authority did not impose these conditions and were not responsible for varying them – although there was some argument as to what information the local authority passed to the police. The parents may not have ‘consented’ to what happened to their children but even if they had made active objection, they could not have taken their children home unless and until the bail conditions were varied.

In such a situation I agree with the Court of Appeal that it is plainly wrong to hold the local authority to blame for a breach of its statutory duty. However, these are quite distinct and particular facts which acted to deprive the parents of the reality of any ability to object. Sadly I am sure there are bound to be further cases where misuse of section 20 involves vulnerable parents, who did not understand or did not have explained to them what section 20 means. Those kind of cases are often coupled with a ‘drift’ for the child in foster care of many months before care proceedings are issued. In such circumstances there is likely to be a reasonable argument for a disproportionate and hence unlawful breach of Article 8. The existence of ‘good practice’ guidance about such issues of course does not have the force of law but can provide a useful benchmark against which to measure if the local authority have acted proportionally.

However, the brief dismissal of £10,000 as an appropriate level of damages sounds an interesting warning for future cases which may well go to render HRA claims pretty hopeless in practice, given the impact of the statutory charge on damages awarded to a legally aided complainant. I agree that the amount of damages awarded in such cases does appear to be creeping ever upwards – see this post for further discussion of damages awarded – and this is not in keeping with the European jurisprudence which makes it clear that damages for human rights breaches are awarded to provide ‘just satisfaction’, not punishment for the wrongdoer. ‘Just satisfaction’ can be provided by a simple declaration of wrongdoing.

Therefore I think its an interesting case with some useful discussion of the distinction between ‘active objection’ and ‘passive consent’ – but I do not agree it is the radical ‘game changer’ that some other commentators suggest.

This post first appeared on the Transparency Project website. The Transparency Project will revise its Section 20 Guidance in light of some of the discussions in this case.