This has been nibbling at me for a while, and there isn’t a clear answer, so I wanted to highlight the question.
Under section 20, it is really clear that if either parent with Parental Responsibility OBJECTS to the section 20 then it can’t happen – at least, not if they are able to provide accommodation for the child or arrange for it to be provided.
[Often that last bit is forgotten about. Of course, they also have the s20(8) power to simply remove the child, but I’m not sure what happens next if they’ve removed the child from s20 but aren’t actually offering the child accommodation themselves or arranging for it elsewhere. Do they just stand on the street with the child? Note that the objection in s20(7) doesn’t say that the accommodation must be ‘suitable’ or ‘appropriate’ or anything like that. If the LA think that it isn’t, their only remedy is care proceedings, not to say – ‘we’re going to continue s20 because your house is currently underwater/full of broken glass/has a staircase designed by Escher/ is occupied by rabid wolves and is thus not safe for a child’ ]
s20 (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,
(8)Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
Now, under the Act itself, a parent giving CONSENT to s20 is not actually a thing. It is just an absence of that objection. But under the developing case-law, particularly the obiter parts of Re N from the Court of Appeal, the President is very clear that s20 should be done by consent, and with that consent in writing.
Now, my question is (and this does actually happen) – where a mother (say) wants some respite care and consents to s20, does the LA need the CONSENT of the father who is indicating that he won’t give it, because he doesn’t want the children to come into care? On the wording of the Act, UNLESS father is offering a home to the children himself, or arranging other accommodation for him, he can’t actually object to the s20.
But under the case-law, which suggests that you need more than an absence of objection, you need active consent, can he block mother’s respite without offering an alternative, by simply refusing to consent?
Can he spite mum’s respite?
[You can swap mum and dad over, if gender bias is troubling you here – it can and does work the other way too]
Now, if the child is disabled, then the respite is not provided under s20, it is provided as specifically respite care under different legislation and the non-resident parent CAN’T block it. But with a child who is not disabled, the only way the child can have respite care is through s20.
The Act allows a single parent to ask for it, as long as the other parent doesn’t say “I object, the child can stay with me / Auntie Beryl”
And there’s also
section 2 (7)Where more than one person has parental responsibility for a child, each of them may act alone and without the other (or others) in meeting that responsibility; but nothing in this Part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child.
Which makes it clear that each person with parental responsibility has a KEY. Either of them can use that KEY to open the lock to any door for an issue where parental consent is required. It is only where an ACT specifically says, this particular door needs TWO KEYS that the consent of both is required. [Passports, for example. Adoption, for another.]
So on the Act, I don’t think that a non-resident parent can block respite care UNLESS they are offering to care for the child themselves or to arrange for Auntie Beryl to do it. That’s when s20(7) kicks in.
But from the case-law, there’s a strong suggestion that the consent of everyone with PR is needed before s20 can take place, which does allow a parent to block respite care without coming up with any alternative suggestion.
The Act suggests that one parent can OPEN the door to s20 respite care with one key, their own PR (and the door can only be held shut if the other parent offers an alternative home for the child and objects under s20)
The case law suggests that one parent can HOLD THE DOOR shut, even though they aren’t able or willing to care for the child themselves or to help out.
Given that Re N is obiter, and has been successfully appealed (though not on the s20 point), my own view is that the Act prevails, particularly because s2(7) says “Enactment” meaning that it is only statute that can insist that any particular door is a two key door. Case-law can’t insist that a particular door is a two key door, only an Act of Parliament can. And s20 is not specified as a two key door.
I don’t think then, that a non-resident parent can HOLD THE DOOR shut, though I can’t be absolutely certain.
Anyway, much of the imagery in this case was just leading up to this picture.
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hmm should the LA’s be running around trying to get the fathers to consent to the S20’s they already have in place (I say fathers because it is mainly the fathers who are absent from the children’s lives, not always by choice and who the LA’s tend to ignore or fail to involve).
If you follow the line that the President was advancing in Re N – that failure to get explicit consent in writing for s20 could result in a claim for damages, perhaps so. (Where the father’s have PR). That isn’t anything close to what the Act says though. How far should Judges go in rewriting law to be the way they’d like the Act to be, as opposed to interpreting a part that is ambiguous ?
If you call it rewriting the actual Act (words in – words out) then Inco Europe Ltd. and Others v. First Choice Distribution (A Firm) and Others (which was really confirming Wentworth Securities v. Jones,  AC 74 but adding exceptions to the “rules”.
” I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross’ admirable opuscule, Statutory Interpretation, 3rd ed., pp. 93-105. He comments, at page 103:
‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’
This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see Lord Diplock in Jones v. Wrotham Park Settled Estates  A.C. 74, 105. In the present case these three conditions are fulfilled.
Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd. v. Schindler  Ch. 1, 18, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. None of these considerations apply in the present case. Here, the court is able to give effect to a construction of the statute which accords with the intention of the legislature
Yes, I don’t think the Court of Appeal is interpreting or fixing obvious mistakes any longer, I think they are rewriting the Act to fit with their idea of what the Act ought to say. And doing it in obiter so that it can’t really be appealed.
Such a relief to hear this aired. s20 where a parent with PR didn’t have capacity to object becoming that they didn’t have capacity to consent, and suddenly positive consent is required (notwithstanding the lamentable details of the cases leading to this on their facts).
Whilst sometimes (where there is objection) there may be little effective difference between an objection and a lack of consent, s20 is far wider and more sophisticated than that – placing duties and responsibilities on Local Authorities in a wide range of situations that often never reach the Court. Not a bad thing to raise everyone’s awareness to the inappropriateness of the ‘arm up the back’ s20 situations, but otherwise the direction this has taken needs checking and clarifying.
Yes, the best way for a Court to avoid going too far in an attempt to correct bad practice is to actually wait for a case where it is a genuine issue and hear argument from all sides, rather than prepare a speech about said bad practice with your brilliant ideas and drop it into a case that had only a tiny connection to it as obiter. That’s the exact opposite of the approach of the most senior Courts over the last three years. We want to announce a new policy initiative, bored of waiting for the right case, this one will do. Publish, cascade to all judiciary with heavy hint that they need to adhere to it or be taken to task by the Court of Appeal.
Section 20 misuse absolutely a bad thing – but we are inadvertently clamping down on perfectly proper section 20 use at the same time.
Yes it needs looking at, but properly. This way has led to other no doubt unintended outcomes.
Some Courts have fairly swiftly realised and had to deal with the effects of the literal application of the new initiative, for example allowing agreements to accommodation (including notice periods) within proceedings, where the parent in proceedings (and all) are willing to agree in the interests of avoiding the need for an (interim) order (as would have been fairly common practice in the olden days of 2015 and earlier). How does the oversight of the Court make that ‘Re N compliant’?
What also, of the twilight zone between birth and an urgent application which the Court service is under too much pressure to list. Will the Court turn a blind eye to a parent having been asked to sign up to s20 with a notice period in those circumstances? How many days is too many – even that point has been speculated upon in another s20 case – but how? the right to object in s20 (as set out) is either absolute or it is not.
Or will the Courts have to be willing to accept an application for an EPO where the only grounds are that there is insufficient Court time to list the urgent ICO application (opposed to the absolute refusal to agree s20 in any circumstances, which I accept may be different), because the Local Authority can’t enter into a s20 agreement with a parent with PR without ensuring the parent is informed and aware that they can withdraw their agreement at any time and the child will be returned to their care.
I think most Courts are being pragmatic and saying that if a parent at Court with legal advice wants to give that notice period, and the Court consider it suitable, that’s sufficient protection. The President’s line in Re N that he doubts that a parent can do this is the most obiter bit of a few pages of obiter. He didn’t hear any argument about that.
And yes, RE N certainly pushed some LA’s into having to issue EPOs rather than on notice ICOs purely because the Court listing couldn’t accommodate.
[This was a very sad story posted by a reader – I think the level of detail in it might accidentally lead her or the family to be identified, and to get her into trouble or reveal more of her circumstances that she would want on a public website. Really sad situation. The child is in France, with the dad, and the social worker who arranged for the child to live with dad and recommended that placement in Court proceedings is now in a relationship with the dad and lives in the home.
If this child was in, say Stoke, I think there would be a strong argument for the situation to be looked at again. The child being lawfully in France – there’s no suggestion of an abduction, makes that more difficult, because any application would have to be made in the French Courts, under French law, and with people speaking French. Not being an expert in French law, I really have not the slightest idea about the approach that their Courts take, what sort of applications can be made and what they take into account, or even if there is any legal aid. I’m afraid I’m struggling with even where you start. There is no legal aid for private law disputes in England – except in very specific circumstances, so you’d have to pay to get specialised advice about French law. That being the case, you might be better contacting a French law firm who deal with Children cases in the first place. The other possibility is the Bar Pro Bono Unit – they do sometimes take on cases for free, where there is injustice or unfairness – the demand for this has gone up a lot since the legal aid cuts, so I can’t promise that you would find someone that way, but it is worth a try http://www.barprobono.org.uk/do-you-need-help.html
I do often suggest that people look for McKenzie Friends in their area if they can’t afford a solicitor, but honestly, I think this is a case, because it is going to involve someone who can navigate French family law, where you need an actual qualified lawyer.
All the very best, and I’m sorry that I don’t have a simple answer for you
Suesspicious Minds ]
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Hmm, worth remembering that under S20(9), where one parent has a residence order, S7&8 do not apply – so in many of these cases the ‘unreasonable blocking’ by non-resident parent would be impossible. However that might open up the question whether even IF the resident-parent gave consent, article 8 might create expectation of consent from a non-resident parent with PR if they were in a position to potentially accommodate the child.
Yes, the President’s wholesale rewriting in case-law of the Act makes things very uncertain. I can look at the Act and work out in any given scenario whether a s20 arrangement is okay or not, but the combination of the Act and the case-law makes a lot of situations now very hard to call.
The socio-economic background of the majority of those that are targeted by the LA’s or cross thier path are very unlikely to actually have a residence order I would have thought, more likely to have one after they have been involved with care proceedings if the child is returned to them.
Having said that, those asking the LA for respite care have probably already crossed the path of an LA..
With regard to the 2nd part of your comment, I have been thinking about that myself and also even where a parent does not have PR I would say that article 8 is engaged, a father does not have to contract in (by way of marriage or a birth certificate) for article 8 to be engaged. and obviously the CA1989 was inacted before the HRA1998.
Ben, I agree – it would clearly depend on the circumstances, if a non resident parent (with or without PR) had little or no involvement with the child for some time, then it might be proportionate to proceed with s20 without their consent, however at the other extreme, if an NRP looked after that child three nights a week and was willing to take care of the child, then it would clearly be disproportionate to say their consent was irrelevant.
Yes, the individual circumstances would need to be considered before hand.
Its worth considering Anayo v. Germany, where the biological father’s desire for a family life engaged article 8 (he wanted contact with his twin daughters and it had been vetoed by the mother and blocked by her husband(the legal father) and the Germam courts) and the fact that they were his biologically so they were part of his identity and therefor his private life so article 8 engaged again ( and vice versa for the children could be argued)..
There can’t be non consent to a sec 20 as such because the la don’t produce them for parents to not consent to them, they shove them under noses stating that they are just forms to consent to medical treatment etc or nearly always with that threat … “Sign it or we’re going to court for an ico” “it’s only for the weekend”