A major theme in family case law over the last 2-3 years has been misuse of section 20 – voluntary accommodation, with all sorts of guidance being provided, culminating in the President of the Family Division giving a decision in Re N 2015 which just invented huge new chunks of legal obligations on Local Authorities and threatening damages if they didn’t obey.
That in turn, quite coincidentally, led to the biggest increases in number of care proceedings issued that we have seen since the Baby P crisis hit. It is a complete coincidence, of course. I mean, over that same period of time, we haven’t actually seen the number of children in foster care go up at all, but we have seen the number of care proceedings go up by 35%, but the two things are utterly unrelated.
As I’ve said before, I do think that there was a genuine problem with section 20 misuse and it needed to be addressed – I just think we swapped one problem for three others – an increased demand which the system utterly couldn’t manage, an increased layer of complexity and time in dealing with claims being added into care proceedings which the system utterly couldn’t manage, and an insoluble problem about how to deal with the cost issues caused by the statutory charge which, you’ve guessed it…
(And also, as I’ve said before, I’d be entirely up for Parliament to review s20 and put in some stronger safeguards for parents – I think a very short limit on the initial s20 and it to be reviewed at a meeting to which parents have free legal advice would be a start)
Anyway, the Court of Appeal today have given judgment on an appeal from one of the early s20 damages cases – this was one where the police removed children after the father hit one of them with a belt, the police arrested the parents and gave them bail conditions not to live with the children, and the parents objected to s20. The parents later sued the LA for breach of their human rights in continuing the s20 without their express consent.
I wrote about the original case at the time, and if WordPress ever stops behaving like a four year old hopped up on Tartrazine, I’ll put a link in.
http://www.bailii.org/ew/cases/EWCA/Civ/2017/26.html
London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017)
(you can skip right to the end if you just want the reboot paragraph, I’ve put it in super large font)
So this is an appeal from an award for £10,000 damages against Hackney, where the parents had been arrested and had bail conditions not to be with the children. The LA asked for s20, the parents refused to sign and the LA relied upon the statute that the parents were prevented (for whatever reason) from providing accommodation and thus s20 (1) (c) was met, and that the parents objection had to be looked at in the context of s20(7) which states
(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 parents were objecting, but weren’t providing any alternative accommodation, and weren’t in fact able to provide their own accommodation (because they would have then been in breach of bail conditions, and arrested. So the LA view was that it wasn’t a legal objection because they weren’t able to meet (b) (i) or (ii)
This all happened, by the way, in 2007.
The High Court looked at it in September 2015 , and decided that the bail conditions weren’t sufficient to defeat the objection under s20(7) and awarded the parents £10,000 compensation each, plus costs. The High Court were clear that the allegations that led to the arrest were largely true (the father had hit the child with a belt) but nonetheless the parents human rights had been breached by the LA s20ing the children without consent, rather than seeking consent or a court order.
This, 18 months later, reaches the Court of Appeal.
The Court of Appeal look at Sir Mark Hedley’s decision in Coventry City Council v C [2013] EWHC 2190 (Fam) , and the Court of Appeal decisions giving judicial guidance on s20 cases 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.
The Court of Appeal say that those cases didn’t have to specifically determine a s20 issue, so where they have made comments, they are obiter and not binding. Specifically, what the President says in Re N is not binding on the Court of Appeal in a case where argument has been specifically heard on the s20 and where s20 is a ratio issue.
59.In relation to item (d), after setting out the terms of s. 20(8), Sir James stated (at [169]):
‘This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence. A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority. I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right.’
60.In conclusion, Sir James set out further requirements of good practice, in addition to those identified by Hedley J before stating [171]:
‘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.’
72.Finally, in Re N, the judgment of Sir James Munby P does repeat his conclusion that parental consent is required by the statute; this can most conveniently be seen from two sentences (from [163]):
A Local Authority cannot use its powers under section 20 if a parent “objects”: see section 20(7). So where, as here, the child’s parent is known and in contact with the local authority, the local authority requires the consent of the parent.”
73.In considering this passage in the President’s extensive judgment in Re N, it is necessary to be clear that any issues relating to s. 20 were very much at the periphery of that case, the focus of which was the jurisdiction of the English Family Court to make orders leading to adoption with respect to foreign nationals. It seems plain that the section of the judgment as to the working out of arrangements for s. 20 accommodation arose from concern, evidenced by a raft of recent first instance decisions, as to social work practice in general. No issue in the case of Re N turned on the interpretation of s. 20, or, indeed, on any matter with respect to s. 20. It is apparent that Sir James was using the opportunity provided by the fact that the children in Re N had been accommodated for eight months before the local authority issued care proceedings as a hook upon which to hang some, no doubt timely, firmly worded and important good practice guidance. Despite the respect that this court undoubtedly has for the opinion of a judge of such authority on these matters, the short judicial statement (in [163]) following a hearing at which the interpretation of s. 20 was not in issue cannot be binding upon this court where the focus is directly upon s. 20 and where there has been full argument.
Therefore, s20(7) does apply where the parent is not able to provide accommodation themselves, or is unable to provide alternative accommodation. In those circumstances, a parent’s objection does not defeat s20 – they need to be able to provide accommodation themselves or from third parties in order to satisfactorily object.
That does NOT mean, and should not be interpreted to mean that in a scenario where the parent says “I object to s20, the child can come home with me’ that the LA can hide behind s20(7) and say that the home offered was unsuitable or dangerous, or they didn’t think it was a good idea. S20(7) goes only as far as the parent not being ABLE to have the child live with them (think bail conditions, homelessness, incarceration or detention in mental health hospital, that sort of thing) and where they aren’t able to provide any other accommodation. It doesn’t cover “the child could live with my brother Mike” and the Social worker going “hell no”
74.I recognise that, in the context of the cases that he was then considering, it may well have been appropriate for Sir James to equate the obligation on a local authority not to use its powers under section 20 if a parent ‘objects’ as meaning, effectively, that when the parent is known and in contact with the authority, consent is required but, in my judgment, it would be wrong to elevate the requirement of consent into a rule of law that operates in all circumstances. In this case, the parents had the benefit of solicitors experienced in both family and criminal law. Their ability to apply to remove the prohibition on contact with the children was well known and emphasised by the solicitors in correspondence. The local authority was not responsible for the bail condition and had no obligation to take proactive steps to have it removed. If the solicitors had wanted the local authority to express a view, an appropriate official could have been requested to do so by the court or been the subject of a witness summons to attend.
75.On any showing, it was not for the local authority to aid and abet the flouting of the bail condition and it is not sufficient to argue that the local authority should have sought to persuade the police to modify the condition. The only inference to be drawn from the fact that the condition remained in place was that the parents (no doubt on advice) were prepared to negotiate with the police rather than risk a conflict in court. In those circumstances, for the period that the bail condition remained in place, they were not in a position to provide accommodation for them within s. 20(7)(b)(ii) of the 1989 Act and were thus not in a position legally to object whether or not they formally consented.
76.Thus, the continued existence of the bail condition had the twin consequence that Mr and Mrs Williams, firstly, were ‘prevented … for whatever reason’ from providing suitable accommodation and care for their children (s 20(1) of the 1989 Act) and, secondly, were not ‘able’ to provide accommodation for them in order to trigger their statutory right to object (s 20(7) ibid
This is the really important bit, with wider implications than the bail conditions/parent in prison objecting to s20 though.
77.Before passing from the issue of s. 20 of the 1989 Act and consideration of the guidance given by Sir James Munby P, Hedley J and others in the Family Division cases to which I have referred, I wish to stress that nothing that is said in this judgment is intended to, or should be read as, altering the content and effect of that guidance in family cases. The focus of the court in the present appeal is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act. The guidance given in the family court, which has built upon that bottom-line in the period since the Williams’ children were removed, identifies clear, cooperative 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, notwithstanding the limits of the underlying legal requirements in s 20 that I have identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.
I would expect to see that paragraph quoted by Local Authorities in response to any suggestion of HRA claims for s20 damages in the future. There may be circumstances where this sort of breach does give rise to action, and we’ll have to wait to see that litigated, but it is going to need something more than just failure to comply with the guidance. The Court of Appeal were also scathing about the proportionality of litigating this particular HRA claim – the damages were out of proportion to the costs and the Court also made it very clear that they considered the quantum of damages to be significantly more than they would have contemplated.
This brings me to another trend in family law – we had the raised test for interim care orders, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’, then the raised test for adoption, which caused all sorts of mayhem and was eventually rolled back by the Court of Appeal saying ‘oh, nobody meant what you all thought’ and now the raised tests for s20, which caused all sorts of mayhem and has now been rolled back by the Court of Appeal saying ‘oh, they DID mean it, but they weren’t actually able to apply the teeth to it that they thought they were applying’
Perhaps when far-reaching judicial speeches that go further than the issue being litigated next arises, the Courts could hear full argument about the implications of what they are contemplating? Or, heaven forbid, just only tell us what the law means where it is the issue in the case and the law is unclear, rather than reworking the plain words of the Statute into what you happen to wish they said instead?
suesspiciousminds 
Doesn’t this just open the doors to the abuse of arbitrary pre-trial bail conditions by the police that exclude the child from the home without the effective oversight or checks and balances of a court as with EPO applications?
Possibly, and arbitrary bail conditions of that kind (particularly before charging, when there’s no clear mechanism to argue against them) has been a worry for a long while. I hope not, but human nature being what it is, I suspect that you are right.
It just shows nothing was learned from the [edited out because there’s currently a Reporting Restriction Order on that case] case imo
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Hear Hear!
Nearly all the parents who have asked me for help following the signing of a section 20 claim there was nothing voluntery about it at all.Sign this or we will go to the court and ontain parental rights.We shall make sure that you never see your children again ……….
I have so far never come across a case where the signing of a section 20 was voluntary as threats to take the children permanently were always the order of the day………
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Hi,
More of a general comment than one responding to this particular post (although it certainly applies to this post) – I just wanted to thank you for the effort you put in to running this blog. I’m a social work student, and I’ve found it invaluable in helping me get some understanding of the complex and seemingly ever-changing legal framework we work within.
It’s fantastic that you spend so much of your free time providing this service, and it’s even better that you are so good at doing it. I hope you keep on doing so for many years to come.
Thank you!
Thank you very much – that’s a lovely thing to say. It is always good to know that I’m not just typing this stuff into the void. Thanks for reading – and please pass any pieces that catch your eye onto your fellow students (or even tutors)
It is outrageous that a relatively straightforward case such as this has triggered many years of legal argument and still not produced the clarity lawyers would like. It seems obvious to me that the initial referral to Children’s Services indicating possible child protection concerns was not dealt with appropriately and there was confusion amongst managers about their statutory duties. The subsequent legal analysis fails to clarify the precise nature of malpractice in Hackney. The Court of Appeal states that an order could have been obtained – I would argue that an order should have been obtained.
The use of s.20 for care arrangements is essentially about providing support services under Part 111 of the 1989 Act. There should be no doubt that this requires ‘partnership’ between the LA and the parents built on trust and real collaborative working. However, the function of services for children ‘in need’ is very different from the function of services for those ‘in need of protection’. These children were accommodated under s.20, presumably because they were ‘in need’ , but in reality they were in care because they were ‘in need of protection’ and more formal measures should have been used.
Many of the problems in this case reflect the prevailing assumption that everything possible should be done to resist the use of formal child protection measures. In children’s services the reason is often expediency – although this is supported by wet liberal thinking that supportive services must be offered, if at all possible. The informality of the s.20 arrangements obviously created problems. Paradoxically, it meant that the parents were denied the protection afforded by the court of their rights as parents and instead were subjected to decisions by Hackney that took far too long to resolve.
Social workers have a legal duty to investigate where there are suspicions, or allegations, of abuse or neglect and this case clearly required a s.47 investigation at the point of referral. We need to get back to basics in improving standards of social work practice in investigative work. For many years I have been arguing for improved arrangements in Children’s Services for carrying out s.47 investigations in order to avoid this kind of muddled thinking and indecisiveness. I feel I have been completely vindicated by the evidence here of what can go wrong when child protection is not given priority and there are delays in decision-making that are harmful to children.
Dear Hilary
I agree that there’s a real tension between the judicial line prior to this case which was “you should get before the Court ASAP” and the Public Law Outline which has as a central concept the idea of trying to avoid Court – the standard letters inviting parents to a meeting which were devised by central government have in huge bold letters “What you need to do to avoid your case going to Court”.
It would be really good, coming up to the thirtieth anniversary of the Children Act 1989 to have a proper genuine root and branch review of each part of it, involving not just the great and the good but listening to a huge variety of voices from all parts of the process, and I would strongly include within that aggrieved parents. It does sometimes feel to me that the Children Act 1989 sets up a lot of competing balances which end up tipping wildly one way or another based on what the mood and temperature is at that moment (do the media/Government on any given year want to keep families together or do they want to rescue children, is adoption a last resort or something to be encouraged?)
What do we, as a society, really want from social workers, what do we want from family Courts, what do we want from our systems and law? I think that’s worthy of some serious consideration. I’ve got a lot of experience working within the system, but I honestly think that I’ve learned as much from engaging with critics of it as I have from working within it. Maybe any system that we create will be flawed, but that’s not a good reason not to try to improve what we have.
Who would have thought when the Children Act 1989 came in that we’d be grappling with radicalisation, with trans-gender, with an age where anyone with a mobile phone can become their own publisher, where you can find out anyone’s address and find photos of them for just a few quid and a few hours on the internet? Who would have thought that the 1989 Act would be longer-lived than either the 1948 or 1969 Acts?
Dear Andrew
The PLO offers guidance but it is still a matter of professional judgement whether to take a case to Court, or not.
My argument for commencing care proceedings is based on the seriousness of the child protection concerns, which can be summarised as: possible neglect of all eight children, the extremely dirty and unhygienic conditions in the home which appeared to be long-standing, the home not being in a fit state to accommodate the children and the father allegedly using physical punishment on one or more children.
Immediate action was clearly justified and short-term foster care appropriate but Hackney was wrong to choose to work collaboratively with the parents. A Safeguarding Agreement was drawn up by social workers which the parents signed. The parents did not present as vulnerable people and quickly obtained legal advice. It is only in hindsight that we can see that the idea of working in partnership with parents was an illusion and subsequent events have shown they are very litigious people.
The CoA states ‘In the 9 years that have followed, the Williams have pursued Hackney though its complaint procedures, the Local Government Ombudsman (which itself involved an application for judicial review) and, thereafter, by means of civil litigation claiming misfeasance in public office, race discrimination, negligence and breach of duty owed pursuant to s. 6 of the Human Rights Act 1998 (“the 1998 Act”) and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”).’
Hackney probably wishes it had decided to use the court route and given the court responsibility for decision-making. This case clearly illustrates the problems with the informality of s.20 arrangements when working with parents under police investigation – informality can lead to misunderstandings and years of litigation.
Dear Hilary, yes absolutely. I would have been advising care proceedings on the basis of the assault with the belt (we don’t need to say allegedly, because there was a finding).Maybe if I were working in Hackney, I wouldn’t – I don’t think these decisions are absolute.
One can see from the CAFCASS stats on issue rates per 10,000 children that there is a substantial divergence around the country as to what meets the threshold for issuing care proceedings. I can’t see that you can explain the fact that Blackpool issues care proceedings at a rate of 39 children per 10,000 and Blackburn issues at 19.8 per 10,000. I don’t think there’s twice as much child abuse in Blackpool as Blackburn (adjusting for population). I certainly don’t think that there’s four times as much child abuse in Blackpool as there is in Doncaster, who issue 11.2 per 10,000
That’s not to simplistically say that Doncaster aren’t issuing enough, or that Blackpool are issuing too many – perhaps there are also issues about culture of section 20, resources to support families – could be many explanations, but that scale of difference between three LA’s who appear to me to have similar social issues (I’m not comparing Toxteth with Saffron Walden here) shows that professional judgment varies considerably across the country.
In 2007 Isabelle Trowler, then Assistant Director in Hackney, was chairing the weekly Children’s Resource Panel which had oversight of this case. The Reclaiming Social Work Model had been introduced with its policy shift towards family support and partnership with parents. There was a strong belief that the new model of practice could transform families and avoid the need to go to court. Now as Chief Social Worker she continues promoting the ‘Hackney Model’. I can only hope that she has seen the outcome in this case and realised that the model should only be used when there is a good degree of trust between parents and social workers.
Nice to see the courts taking a bit of notice of the rules and actually dishing out a punishment
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Its interesting to see the impact of unintended consequences. Judgements come from on high which then have to be implemented on the bottom level.
I can think of many examples- ‘don’t use B&B’s for children!’- Brilliant, but what is one to do when the only available choice is B&B or placing the child miles from their home? When you are a social worker on the ground dealing with the realities- things become much more complex. ‘the parent phones up and says; I hereby cancel s20 and want my child back within the hour’ Brilliant, but what if the social worker is unable to drop everything and resolve this mess?
Re- ‘What do we, as a society, really want from social workers, what do we want from family Courts, what do we want from our systems and law?’ I agree that this discussion is needed. Moreover in 2017 with funding cuts, PLO and other guidance- social work is becoming – assess, gather evidence and remove OR assess, gather evidence and close. The bit in the middle of offering long-term support if required and building relationships is now viewed as old school and not fitting with the ‘child’s timeframe’. The more budgets are cut and the more the ‘child’s timeframe line is promoted, the more Police like the authorities become.
As an avid reader of your blog I’d be interested to hear about your thoughts on this http://www.bailii.org/ew/cases/EWFC/HCJ/2017/4.html Best, Pavan
Pavan Dhaliwal Director of Public Affairs and Policy, British Humanist Association 39 Moreland Street, London EC1V 8BB | 020 7324 3065 | 0773 843 5059
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That one probably warrants a whole blog post on its own. Hopefully this week.
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