Section 20 of the Children Act 1989 allows a local authority to accommodate children but gives it no compulsory power to keep them from their parents. The issue was whether the council had a lawful basis for continuing foster care after a separate period of police protection expired.
The police had placed the children under emergency protection for up to 72 hours. The council arranged temporary foster placements.
The parents signed a safeguarding agreement. Bail conditions also restricted their contact with the children. After police protection expired, their solicitors corresponded with the council. One letter gave notice of an intention to withdraw consent but expressly accepted another ten days of accommodation while inquiries were made. The children returned home after the bail conditions were varied.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The parents later claimed damages, including for breach of their rights under Article 8 of the European Convention on Human Rights. Sir Robert Francis QC, sitting as a deputy High Court judge, dismissed claims in negligence, misfeasance and discrimination, but held that there was no lawful basis for accommodation after the 72 hours expired, so the interference with family life was not “in accordance with the law”. He awarded each parent £10,000. The Court of Appeal held that the bail conditions both prevented the parents from providing suitable accommodation and meant that they were not “willing and able” to do so within section 20(7), so the accommodation was lawful. It therefore allowed the Council’s appeal.
The statutory scheme
Section 20 requires a local authority to accommodate a child in need who appears to require accommodation because, among other reasons, the person caring for the child is prevented from providing suitable accommodation or care. It also confers a broader power to accommodate a child if that would safeguard or promote the child’s welfare. Subsection (7) prevents the authority from providing accommodation if a person with parental responsibility who is willing and able to provide, or arrange, accommodation objects. Subsection (8) allows any person with parental responsibility to remove the child from section 20 accommodation at any time. Those rights are qualified only in limited circumstances, such as where a child arrangements order, special guardianship order or High Court order provides for the child to live with someone else who agrees to the accommodation, or where a child aged 16 agrees to be accommodated.
Lady Hale, with whom the other Justices agreed, emphasised that parental responsibility cannot be surrendered, although a parent may arrange for some or all of it to be met by others. A local authority has no power to remove a child from a parent who is looking after the child and wishes to continue doing so unless it first obtains a court order; only the police may remove a child under section 46. Helpless submission to asserted authority is not a real and voluntary delegation of parental responsibility. Where, however, the authority steps in because a parent is not in fact looking after the child, active consent is not required, although subsections (7) to (11) still apply. Good practice requires clear information about parents’ rights and the authority’s responsibilities, but a failure to follow that practice does not of itself make the accommodation unlawful or found a damages claim.
Application to these facts
This was not a case in which the Council had taken children from parents who were then caring for them. The children were already lawfully accommodated under police protection, and the section 20 arrangements simply continued after that protection expired. At that point the circumstances fell within section 20(1)(c). The question was therefore whether the parents had objected under subsection (7) or made an unequivocal request for the children’s return under subsection (8).
The events of 9 July were too unclear to be treated as either. The judge had not found precisely what request, if any, was made, and even a short period without lawful authority would not have produced damages if the interference remained proportionate. The solicitors’ letters of 13 July could not be read as an unequivocal demand for immediate return. They offered continued co-operation and agreed to further accommodation for ten days while investigations continued. That delegation of the exercise of parental responsibility was never unequivocally withdrawn. The bail conditions did not enlarge the Council’s powers under the 1989 Act, and there was no evidence that an earlier supportive letter from the Council would have altered the police position.
There was therefore a lawful basis for the continued accommodation. The ground on which the trial judge had found a breach of Article 8 was not made out. Keeping children away from parents who feel they have no choice, or who have asked for their return, may interfere with family life. The judge had found the interference proportionate at the outset, and his view that emergency protection orders might have been justified implied that it remained proportionate when the solicitors wrote. Proportionality was not fully explored below and was not raised in the Supreme Court, so the Court did not decide it. The parents’ Human Rights Act claims should accordingly have been dismissed, although for reasons different from those given by the Court of Appeal.
Lady Hale added that section 20 gives local authorities no compulsory powers and must not be used so as to give the impression that it does. There is no statutory time limit on section 20 accommodation, but prolonged use without care proceedings may breach other duties under the Act and regulations, or be unreasonable in public-law terms, and may in some cases breach Article 8. Where the authority believes that a child is likely to suffer significant harm if returned, it should seek police protection or an emergency protection order rather than simply refuse an unequivocal request for return.
Verdict: The Court unanimously dismissed the parents’ appeal. They had neither objected within section 20(7) nor made an unequivocal request for immediate return, so the continued accommodation had a lawful basis. Proportionality was not before the Court.
Source: Williams and another v London Borough of Hackney [2018] UKSC 37
