Tag Archives: Williams v Hackney

What does ‘section 20’ mean? And when should it be used?

The law is perfectly clear but perhaps requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorising that step …

NB We now have the benefit of a March 2021 ‘Best Practice Guide’ from the Public Law Working Group.

Basically,  section 20 of the Children Act 1989  is about the LA’s duty to provide a child with somewhere to live because the child doesn’t currently have a home, or a safe home:

  • there isn’t anyone who has parental responsibility for him (for e.g. an asylum seeking child who has come to the UK on his own);
  • the child has been lost or abandoned;
  • the person who has been caring for the child can’t provide him with a suitable home, whatever the reason for this and regardless of whether this is short term or long term problem.

It is a very important section with regard to care proceedings, because it often happens that a local authority (LA) will ask parents to sign a ‘section 20 agreement’. This means the parents are agreeing to let their children live somewhere else, usually in LA foster care, while the LA carries out more investigations or the parents get some time to sort themselves out (‘respite care’).

The child is therefore out of the parents’  care without the need for the LA to go to court and get the Judge to make a care order. Because the court is not involved to oversee this, it’s very important that section 20 agreements are used properly and don’t become a way of letting the case drift on without proper consideration or getting a care order ‘by the back door’.

I discuss these issues further below:

  • What is the impact of section 20
  • What have the courts said about the requirements of section 20
  • When it goes wrong
  • What you can do if its going wrong

On 24th February 2016 the Transparency Project published Guidance for parents and professionals about the use of section 20, which you can download here.

There has been some controversy about ‘foster to adopt’ placements where section 20 is used to put a child in such a placement before the matter gets to court. You can read more about this, and the report of the Family Rights Group here. 

Impact of section 20: the BIG difference between section 20 and a care order – the LA does NOT have parental responsibility

The difficulties around section 20 were summed up by Lady Hale in para 34 of the Supreme Court judgment Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018)

iThese cases illustrate a number of problems with the use of section 20: separation of a baby from the mother at or shortly after birth without police protection or a court order, where she has not delegated the exercise of her parental responsibility to the local authority or been given in circumstances where it is questionable whether the delegation was truly voluntary; retention of a child in local authority accommodation after one or both parents have indicated a desire to care for the child or even formally asked for his return; and a lack of action where the perception is that the parents do not object to the accommodation, even though this means that no constructive planning for the child’s future takes place. They also illustrate the dilemma posed to the local authority: something has to be done to look after the child but there are serious doubts about whether the parent can validly delegate the exercise of her responsibility. Equally, they illustrate the dangers if the local authority proceed without such delegation or obtain it in circumstances where the parents feel that they have little choice. There are none of the safeguards and protections for both the child and the parents which attend the compulsory procedures under the Act. Yet, rushing unnecessarily into compulsory procedures when there is still scope for a partnership approach may escalate matters in a way which makes reuniting the family more rather than less difficult.

  • Section 20 accommodation is very different to your child being removed from your care against your will under a care order. The LA do NOT share parental responsibility for your child just because you have agreed that your child should be in foster care under a section 20 agreement.
  • Under section 20(8) any person who has parental responsibility can remove the child from LA accommodation at any time unless there are objections to this by someone who has a child arrangements order to say the child lives with him/her (what used to be called a ‘residence order’), a special guardianship order or has care of the child by a special order of the High Court.
  • Section 20(4) says that the LA may provide accommodation for any child in their area, even if the child has a parent who is able to provide accommodation, if the LA thinks that they need to do this to keep the child safe.
  • Section 20(7) provides that the LA cannot provide accommodation for a child if there is someone who has parental responsibility for the child and objects to the LA providing the accommodation.

So if the parents won’t agree to section 20 accommodation, their child can only be removed by court order or by the intervention of the police using their special powers.

Problems have arisen when parents feel they have been ‘rushed’ or even bullied into making a decision to agree to let their children be accommodated under section 20. Sometimes, LAs get consent from only one parent but the other objects. A LA should always try to get the consent of everyone who has parental responsibility.

What do the courts say?

Evolving case law and the case of Williams v Hackney

A very important case when considering how section 20 should work is the case of Coventry City Council v C, B, CA and CH [2012]. This should be read together with the case of Williams and Another v London Borough of Hackney [2015]. See also the case of Medway Council v M and T [2015] which appears to be the highest amount of compensation paid for unlawful use of section 20 – £20K to both mother AND child.

In the Coventry case, Mr Justice Hedley gave guidance about what should happen if a LA want to remove a baby immediately or soon after birth – it can be appropriate to use section 20 in these circumstances but obviously it is vital to make sure the parents understand what is being proposed and give real consent.

The Hackney case, involved parents of 9 children who were taken into foster care in 2007 after the police intervened saying the home conditions were not suitable for the children to live in. The children spent about 2 months in foster care.

The parents took legal action against the local authority, saying it had acted unlawfully by taking the children into care under section 20 of the Children Act as they had not understood what was going on. The court found that they had not been informed of their right to object to the children’s continued accommodation under section 20(7) or of their right to remove the children at any time under section 20(8) and that their consent was not informed or fairly obtained (para 65).

Therefore Hackeny was found in breach of its statutory duty and the parents were awarded the £10,000 each and Hackney was ordered to pay 75% of their costs.

Hackney appealed and this decision was overturned on appeal in December 2016.

The Court of Appeal agreed with Hackney and pointed out that the word ‘consent’ does not appear in section 20  – the relevant word is ‘objects’. At the time the children were accommodated pursuant to section 20, the parents were subject to bail conditions that prevented them from providing suitable accommodation for their children. Their consent was not required in these circumstances. There was no breach of the HRA and damages should not have been awarded.

However the Court of Appeal stated that guidance from other cases about issues of ‘consent’ was still relevant:

“The guidance given in the family court … identifies clear, co-operative 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. For reasons of good administration, the practice guidance should continue to be followed … but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.”

The case then went to the Supreme Court, the main ground of appeal being was there or was there not a lawful basis for the children’s accommodation under section 20 of the 1989 Act once the 72 hours of police protection under section 46 had expired? Judgment was handed down on 18th July 2018 in Williams & Anor v London Borough of Hackney [2018] UKSC 37 (18 July 2018), dismissing the appeal.

The UKSC commented that it was potentially confusing to talk about ‘consent’ to section 20 and it was better to refer to the process as the parent agreeing to delegate their PR to the LA for a period of time. However, it remained important that the parents genuinely understood what was going on so previous ‘good practice’ should be adhered to.

Lady Hale considered at paras 57 and 58

Whether the local authority had a lawful basis to continue to accommodate the children all depends, therefore, on whether the parents’ actions after the expiry of the police protection order amounted to an unequivocal request for the children to be returned. The judge did not see the bail conditions as an insuperable impediment to their making such a request (para 65.b). There could have been a number of solutions, including the parents or the Council persuading the police to vary bail to allow alternative accommodation with family and friends, if there were any to help, or with the parents themselves. Breaking police bail conditions is not a criminal offence and there was no evidence of what would have happened if the children had returned home. The bail conditions did not operate to give the Council any greater powers than they had under the 1989 Act. The ostensible reason for the conditions was not a good reason for keeping all eight of the children – particularly the baby – apart from their parents. It is not surprising that they were lifted soon after contact from a senior Council officer, even though there was still the prospect of criminal proceedings against the parents.

But it is difficult to know how to construe the events of 9 July, when the parents went to the Council’s offices and, according to them, asked for the return of their children. The judge accepted the social worker’s denial that she had told them that the children would never be returned. But he found it probable that they were told that the document they had signed authorised the children to be kept, because that is what she believed at the time. However, he went on to say that “it is difficult to determine whether, and if so on what terms, the claimants asked for their children to be returned”. Given his earlier finding about the events of 6 July, he made no finding about it (para 68). It is therefore difficult for us to construe these events, either as a clear objection to the children’s accommodation under section 20(7) or as an unequivocal request for their immediate return under section 20(8). There would be little point in our sending the case back to the judge for him to make findings on this matter. It is fairly clear that, on that date, he would have regarded the continued interference in the family’s life as a proportionate means of protecting the children from harm. In those circumstances, even if the events of 9 July had removed the lawful basis for the local authority’s actions for a matter of days, which must be doubtful, no damages would be payable.

The Supreme Court therefore decided that as the parents had not objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under section 20.

Summary of legal principles from case law.

Considering the evolving case law, it appears that the ‘good practice’ guidance identified in earlier cases remains relevant and LA would be wise to ensure that it is complied with. A useful precis is found at the very final paragraph of Lady Hale’s judgment:

In sum, there are circumstances in which a real and voluntary delegation of the exercise of parental responsibility is required for a local authority to accommodate a child under section 20, albeit not in every case (see para 40 above). 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.

As the Supreme Court did not resile from any of the guidance set out in previous cases, I will summarise it here.

  • Parents must give valid consent to section 20 accommodation; their agreement must be ‘real’ –
    • but note Hackney case (above) where the parents were subject to bail conditions that meant they were prevented from offering a home to their children. Consent was not an issue in these circumstances. If parents are prevented from ‘objecting’ to section 20 accommodation this may be enough to make it lawful.
    • Also note comment of Lady Hale in SC decision in Hackney (para 39) a delegation of parental responsibility (i.e. agreeing to section 20) can be “real and voluntary” without being fully “informed”.
  • The parents must understand what they are agreeing to; they must have ‘capacity’
  • The parents must have all the relevant information
  • Removing a child under section 20 must be fair and proportionate
  • Parents must be told they have a right to take legal advice
  • Parents must be told they have a right to withdraw their consent

These principles are dealt with in more detail below.

Agreement must be real – parents must give valid consent to section 20 accommodation

  • Every parent who has capacity has the right to give consent under section 20 to have their child accommodated by a LA (for a discussion of what is meant by ‘capacity’ see our post on the Mental Health Act 2005);
  • Every LA has the power to accommodate a child, if to do so is consistent with the child’s welfare.

The parent giving consent must have capacity – they must understand what they are agreeing to

  • every social worker obtaining a parent’s consent is under a personal duty to be satisfied that the person giving consent has the capacity to do so;
  • The social worker must actively consider the issue of capacity and consider the questions raised by the Mental Capacity Act 2005 at section 3 and in particular the person’s capacity to use and weigh all the relevant information;
  • If the social worker has doubts that the person has capacity they should stop trying to obtain consent and seek advice from the Team Leader or Management.

The parent must have all the relevant information to be able to agree

If the social worker is satisfied the parent is able to agree, the next question is whether the consent is ‘fully informed’. Does the parent:

    • understand the consequences of consent or refusal?;
    • appreciate the full range of choices available?
    • know about all the relevant facts?

If the social worker is not satisfied the parent is ‘fully informed’ again, no further attempts should be made to obtain consent and further advice should be sought, including legal advice if necessary.

The decision regarding section 20 accommodation must be fair and proportionate

  • If the consent is considered to be fully informed, the social worker must then be satisfied that the giving of such consent and subsequent removal of the child is fair and proportionate.
  • To answer that question, the social worker should consider the current physical and psychological state of the parent, whether or not they have a lawyer, or have been encouraged to seek legal advice, whether it is necessary for the child’s safety to be removed at this time or whether it would be fairer to seek a care order from the court.

The parents must be told they have a right to legal advice and can withdraw their consent at any time.

See para 65 of the Hackney judgment:  a section 20 agreement HAS to convey that the parents have the right to withdraw their consent. The parents must also be told of their right to take legal advice. Otherwise their apparent ‘consent’ to section 20 may be no consent in reality. This is confirmed in the Supreme Court decision although the point is made that consent can be real without necessarily having ‘full information’. This is not a point I find easy to reconcile and presume that the focus then falls on what is ‘relevant’ information – which I assume is primarily being informed that the parent can remove the child from section 20 accommodation at any time. 

When it goes wrong

The parents didn’t understand what was going on

For a case that went badly wrong, when the LA did not make sure the parents were supported to understand what was going on, see the case of H (A Child – Breach of Convention Rights: Damages) [2014]. The parents were awarded damages of £6,000 for breach of their human rights in a case that drifted due to unacceptable use of section 20 accommodation.

The court had real doubts about the reality of the parents’ consent in the case of P (A Child: Use of section 20) [2014] EWFC 775. The Judge commented at paragraph 32:

Finally, I would also add that on my assessment of the undisputed facts in this case there is real doubt as to whether [the LA] had proper consent from the parents to the accommodation of P after he was removed from the PGF. In the first statement filed by the [LA] there is an acknowledgement that the parents did not want P to be placed in foster care after he had been placed with the PGF. The author of the statement comments that in spite of this knowledge once he was moved to foster carers the parents did nothing to come and get him – as if the responsibility was somehow theirs. These parents go everywhere with an advocate. They are vulnerable young people. It is the responsibility of the local authority to ensure that they give proper consent. Unless they abandon their child, they do not give consent by omission. I should add that they have never abandoned him.

When it starts ‘drifting’: Judicial Warning

Sometimes, when a child is in foster care under section 20, that has lead to unacceptable drift and delay in making decisions about the child’s long term future. In the case of H (A Child – Breach of Convention Rights: Damages) it took the LA nearly a year to issue proceedings, while the child was in section 20 accommodation,  a delay that the court decided was both ‘unjustified’ and ‘inexcusable’. Also, the LA did not take enough care to ensure the parents understood what was going on. The parents were awarded £6,000 each for breach of their human rights.

On 26th November 2014 the Designated Family Judge for Avon, North Somerset and Gloucestershire issued the following warning about the use of section 20:

Misuse of accommodation under section 20 of The Children Act 1989

1. There have been several recent instances in this area where it is quite apparent that accommodation of children under Section 20 of The Children Act 1989 has continued in an unstructured way for excessive periods of time and in circumstances where proceedings are either inevitable or otherwise highly likely to be issued. I regard such accommodation in those circumstances to be unprincipled and wrong. Further, where this occurs, it leads to unjustifiable delays in the completion of arrangements for the child concerned.

2. I refer, in particular, to the decision of Hedley J in Re CA (A baby) [2012] EWHC 2190 in which guidance is given about the use of accommodation under that section. It includes guidance that the Local Authority should consider: ‘Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement’. That question should be read as if the word ‘fairer’ were to be expanded so that the question reads: ‘Would it be fairer and in the better interests of the child in this case for this matter to be the subject of a court order rather than an agreement?’ It is not in the interests of a child for accommodation to be used in the unstructured way that I have described in paragraph one above.

3. Therefore, in any cases before District Judges or Magistrates in this area where there is any significant suggestion that accommodation under section 20 has been misused in the manner that I have described, the case should be listed before a Circuit Judge following the Case Management Hearing. Circuit Judges are encouraged to give judgments on any such issues that arise before them on referral or on a CMH listed before them. Where possible and appropriate, the judgments should be placed on Bailii in accordance with the transparency provisions. I consider it to be in the public interest that any such misuse of accommodation under that section should be made public.

HHJ Wildblood QC – 26th November 2014.

In the case of P (A Child: Use of section 20) [2014] EWFC 775, the child had been in section 20 accommodation for 2 years whilst the case drifted. Then there were enormous problems in getting another LA to agree to help the parents with housing. The Judge commented at para 30:

It goes without saying that it is totally inappropriate for a local authority to hold a child in s. 20 accommodation for 2 years without a plan. That is what happened here. The local authority has “disabled” these parents from being able to parent their child with every day of inactivity that has passed. The driver for the issue of proceedings was the parents’ lawyers making clear that they did not give their consent. To its credit LBR, during the hearings before me, has accepted its errors in this regard and has tried to make good but there needs to be a careful examination internally of how it was this family was treated in this way.

In these situations it is the local authority that holds all of the power. I think it likely the mother was told that if she did not agree to P’s accommodation then the LBR would issue proceedings. Parents are unlikely to want to drive the local authority to issue proceedings and so the vulnerable are left almost powerless to object. Meanwhile the child is “parked” and the local authority is under no pressure or scrutiny to ensure that it is dealing with the case in an appropriate and timely fashion. In my capacity as DFJ for East London I warn that there will be nowhere to hide for those authorities in this designated family area who fail the children in their borough in this way.

There was further serious criticism about the misuse of section 20 in the case of A (A Child) in 2015 where the President of the Family Division stated at paragraph 99 of his judgment:

Quite apart from all the other serious failures, the delay in this case was shocking. A was born on 11 January 2014. There had – appropriately and commendably – been much pre-birth planning. Yet it was not until 16 September 2014 that the care proceedings were issued. This delay is, to all intents and purposes, unexplained. The gap was covered by the local authority’s use of section 20 in a way which was a misuse, indeed, in my judgment, an abuse, of the provision.

There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated. I draw attention to the extremely critical comments of the Court of Appeal in Re W (Children) [2014] EWCA Civ 1065, as also to the recent decision of Keehan J in Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam).

Unfortunately, its still going wrong. HHJ Wildblood QC identified what had gone awry in Bristol City Council v S [2015]

  • The circumstances of the children were allowed to drift in the pre-proceedings stage and the use of section 20 of the Children Act 1989 was too prolonged.
  • The absence of a meeting of professionals from the Local Authority’s Children’s and Adults’ Services in the early stages of the Local Authority’s intervention.
  • A lack of understanding of The Care Act 2014.
  • There were inadequate assessments of the mother in the pre-proceedings stage. If there was insufficient information available to the local authority for it to formulate a satisfactory care plan at that stage a proper and full psychiatric assessment of the mother should have taken place within the pre-proceedings stage. It should not have been left to the time of the proceedings.
  • The apparent lack of information held by Dr. S as to exactly what has been provided to the mother by way of therapy within the community.

EDIT The case of Herefordshire Council v AB [2018] EWFC 10 (1 February 2018) reveals further serious unlawful use of section 20; Mr Justice Keehan describing this case as representing “two of the most egregious abuses of section 20 accommodation it has yet been my misfortune to encounter as a judge”.  Once child spent 8 years in section 20 accommodation from the ages of 8 – 16 and the other spent the first 9 years of his life without any plan for permanent accommodation.

It’s going wrong and you don’t agree to section 20 anymore

If you don’t want your child in foster care any more then you can stop agreeing at any time. BUT this may mean that if the LA aren’t happy with you taking your child home, they may want to try to stop you.

To do this lawfully, there are only two options:

  • The LA try to persuade the police to exercise their powers to take a child to a place of safety for up to 72 hours;
  • OR the LA will have to apply to court for an order.

If they think the situation is urgent they might apply for an Emergency Protection Order. See our post on interim removals.

In some situations, parents might be better off if there was an application for a care order – this will ensure the matter is now subject to a strict court timetable and a judge will be in charge of making decisions. Being involved in care proceedings will also mean parents can get free legal advice and representation.

The LA want me to sign a ‘written agreement’.

Often section 20 agreements go hand in hand with other written agreements; for example, setting out what the LA would like the parents to do or stop doing, while their child is in foster care. These documents don’t have any specific legal force but they are often relied on in evidence in later care proceedings to show how co-operative (or un co-operative) the parents have been and therefore, how much they can be relied on in the future.

Written agreements should not be used to get care orders ‘by the back door’. See the case of Re W [2014] for discussion about this. Also, read this blog post by suesspicious minds for further consideration about written agreements and their consequences.

His advice to parents is:

  • Don’t sign one unless you understand every single bit, and you’ve been told clearly what will happen if you don’t stick to it;
  • If you have a lawyer, you should ask for legal advice BEFORE you sign it. If you don’t have a lawyer, say that you want the Local Authority to hold a Meeting Before Action, so that you can have free legal advice about the agreement;
  • If you think that something isn’t fair, say so;
  • If you’re willing to do what is being asked, but you want help, ask for that help to be identified and put in the agreement;
  • Never ever sign a written agreement if you don’t intend to stick to it – your position is made worse by signing it and not doing it than by not signing it.

Section 20 – other issues

Watch out for section 22 of the Adoption and Children Act 2002

There can be serious consequences flowing from section 20 accommodation and parents need to be aware of these. In particular, parents will need to bear in mind section 22 of the Adoption and Children Act 2002 which states that if a LA is providing accommodation for a child, the LA MUST apply for a placement order if :

  • they think the conditions of section 31 of the Children Act are met (significant harm);
  • and they are satisfied the child ought to be placed for adoption.

See further LB v London Borough of Merton [2013] EWCA Civ 476.

See further discussions at The Transparency Project about the ‘foster to adopt’ controversy, where parents may agree to place babies in such a placement, under section 20, therefore without the oversight of the court.

Review and monitoring of section 20 accommodation.

Under the Review of Children’s Cases Regulations the LA must appoint an Independent Reviewing Officer (IRO) to carry out the functions in section 26(2A) of the Children Act 1989;

  • participating in the review of the case in question;
  • monitoring the performance of the LA’s functions in respect of the review;
  • referring the case to Cafcass, if the IRO thinks it is appropriate.

Every case must be reviewed within 4 weeks of the child being provided with accommodation and a second review must follow after that within 3 months. After this second review, the reviews must be at least every six months. The LA should be considering whether or not the child can go home at these review meetings.

The IRO is under a duty to:

  • make sure that the child’s views are understood and taken into account;
  • to identify who is responsible for making sure decisions taken in the review get acted upon;
  • inform senior management at the LA if reviews are not properly carried out;
  • to assist the child to obtain legal advice; or
  • to find out whether an appropriate adult is able and willing to provide such assistance or bring the proceedings on the child’s behalf.

Making parents pay for section 20 accommodation?

For consideration of the very odd situation outlined by Schedule 2 of the Children Act, see this excellent blog post by suesspicious minds.  Such charges can’t be imposed on any parent who is receiving state benefits and they don’t apply to any child subject to a care order.

The Schedule reads:

Schedule 2 para 21. —(1) Where a local authority are looking after a child (other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute (“a contributor”)

Parents on bail: condition not to contact their children

The court initially stated in  Williams and Another v the London Borough of Hackney [2015] that the LA should still get informed consent to section 20 accommodation, even when the parents were subject to bail conditions that meant they could not have unsupervised contact with their children. This was overturned by the Court of Appeal who pointed out that the statute uses the word ‘object’ not ‘consent’ and the parents clearly couldn’t ‘object’ to the LA providing their children with accommodation, when they were prevented by their bail conditions from giving them a home.  See discussions above and in particular the comments from Lady Hale in the Supreme Court judgment about bail conditions and their impact.

Further reading