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Supreme Court judgment on children who come into care under voluntary arrangements (section 20 Children Act 1989)

Published: 18th July 2018

6 minute read

Today the Supreme Court gave its judgment on Williams and another (Appellants) v London borough Hackney. The Charity Family Rights Group were interveners in the case, represented by a pro bono team led by Alex Verdan QC and Goodman Ray solicitors. Its intervention drew heavily on the findings from the Knowledge Inquiry that Family Rights Group had conducted, on behalf of the Your Family, Your Voice Alliance, into the use of Section 20 i.e. children coming into the care system under a voluntary arrangement.

Cathy Ashley, Chief Executive of Family Rights Group commented:

“The Supreme Court judgment follows years of discussions and court judgments about the use and misuse of section 20. Indeed, section 20 proved to be a significant topic for debate during the recent Care Crisis Review.

There were a number of interveners in this Supreme Court case, all of whom were represented pro bono by expert legal teams. It is also testimony to the determination of the Williams family and their pro bono legal team that this timely case came before the Supreme Court.

Section 20 is a family support provision, premised upon partnership working between families and the state, for the welfare of children. We welcome the principles set out by Lady Hale, on behalf of the Supreme Court in helping clarify the use of section 20.

There was a very clear recommendation arising from the Your Family, Your Voice Alliance Knowledge Inquiry on section 20 and from the recent Care Crisis Review, that there should now be statutory practice guidance drawn up on the use of voluntary arrangements, to promote good practice. This is also the logical conclusion that can be drawn from the Supreme Court judgment, which frequently refers to expectations of good practice. This now needs to be actioned by Government.

The Care Crisis Review also recommended that parents should be eligible to receive free legal advice and representation, equivalent to that available under a pre-proceedings process, where it is proposed by the local authority that the child is looked after under section 20 of the Children Act 1989 or section 76 of the Social Services and Well-being (Wales) Act 2014. Family Rights Group now calls upon the Ministry of Justice to put such measures into place.”

Note 1:

The Supreme Court judgment very helpfully sets out nine key principles of law in relation to the voluntary accommodation of children by the state under section 20. A summary of these are:

Firstly, that the starting point must be parental responsibility…it encompasses all the rights of a parent. The most obvious and fundamental of these is the right to look after and bring up one’s own children…no local authority have the right or power to remove a child from a parent who is looking after the child and wants to go on doing so without a court order…

Secondly, it may be confusing to talk of parent “consent” to the removal (or accommodation of her child). If a parent does agree to this, she is simply delegating the exercise of her parental responsibility for the time being to the local authority. Any such delegation must be real and voluntary…

Thirdly, removing a child from the care of a parent is very different from stepping into the breach when a parent is not looking after her child…but…in such cases, as a matter of good practice, local authorities should give parents clear information about what they have done and what the parents’ rights are…Parents should also be informed of the local authority’s own responsibilities…

Fourthly, parents may ask the local authority to accommodate a child, as part of the service they provide for children in need. If the circumstances fall within section 20(1), there is a duty to accommodate the child. If they fall within section 20(4), there is the power to do so. Once again, this operates as delegation of the exercise of parental responsibility for the time being…

Fifthly… the authority cannot accommodate a child if a parent with parental responsibility who is willing and able to accommodate the child herself or arrange for someone else to do so objects to the local authority doing so…If the local authority considers the proposed arrangement, not merely unsuitable, but likely to cause the child significant harm, they should apply for an emergency protection order.

Sixthly,…a parent with parental responsibility may remove the child from accommodation provided or arranged by a local authority at any time. There is no need to give notice in writing, or otherwise. The only caveat…is the right of anyone to take necessary steps to protect a person, including a child, from being physically harmed by another…

Seventhly, the right to object … and right to remove … are qualified…(if there are) court orders which have determined with whom a child is to live…(such as a special guardianship order). These order restrict that parents’ exercise of parental responsibility…

Eighthly, section 20 makes special provision for children who have reached 16. In addition to the general duty…there is a duty…to provide accommodation for any child in need who has reached 16 and whose welfare will be seriously prejudiced if this is not done; and…to accommodate anyone who has reached 16 but is under 21 in a community home which caters for over 16-year-olds…once an accommodated child reaches 16, a parent has no right to object or to remove the child if she is willing to be accommodated by the local authority.

Finally, there is nothing in section 20 to place a limit on the length of time for which a child may be accommodated. However, local authorities have a variety of duties towards the children whom they are accommodating. …Section 20 must not be used in a coercive way: if the state is to intervene compulsorily in family life, it must seek legal authority to do so. Thus although it is not a breach of section 20 to keep a child in accommodation for a long period without bringing care proceedings, it may well be a breach of other duties under the Act and Regulations or unreasonable in public law terms. In some cases there may be breaches of the child’s or the parents’ right under article 8 of the ECHR.”

Lady Hale concludes the judgment by stating:

“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. 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.”

Family Rights Group works with parents whose children are in need, at risk or are in the care system and with wider family who are raising children unable to remain at home.

We advise parents, grandparents, other relatives and friends about their rights and options when social workers or courts make decisions about their children’s welfare.

We campaign for families to have their voice heard, be treated fairly and get help early to prevent problems escalating. We champion family group conferences and other policies and practices that keep children safe within their family and strengthen the positive family and community networks of children who cannot live with their parents.

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