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Accommodating children under s 20 requires real and voluntary delegation of parental responsibility
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The case of Williams and another v London Borough of Hackney [2018] UKSC 37 concerned the limits of a local authority’s powers and duties to provide accommodation for children in need under s 20 of the Children Act 1989 (ChA 1989), s 20. The Supreme Court ruled that accommodating children relying on s 20 requires real and voluntary delegation of parental responsibility.
The appellant’s children were accommodated by the respondent local authority following police removal of their eight children from their care pursuant to emergency powers under ChA 1989, s 46 to remove children to suitable accommodation for a maximum of 72 hours.
The appellants were arrested and interviewed by the police and released on police bail on the condition they could not have unsupervised contact with any of their children. The appellants were asked to, and did, sign a safeguarding agreement by the local authority to permit the children remaining with foster carers. They were not informed of their right to object to the children’s continued accommodation pursuant to ChA 1989, s 20(7).
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Solicitors instructing on their behalf withdrew any formal consent to accommodation seven days after the agreement was signed and requested the children’s return within ten days or provision of timeframes for return and the basis for those timeframes. The local authority agreed the children should go home as soon as possible, which meant three days later. However, the children were not returned for almost two months.Criminal proceedings were discontinued and the appellants issued proceedings against the local authority claiming damages, among other things, for breach of their right to family life under Art 8 of the European Convention on Human Rights (ECHR).The High Court dismissed the other claims, but held that the parent’s human rights had been breached because they had not given informed consent to their children’s accommodation pursuant to s 20 and there had therefore been no lawful accommodation beyond the initial 72-hour period permitted by s 46. Damages of £10,000 was awarded to each parent.The Court of Appeal allowed the local authority’s appeal, concluding that the parent’s consent was not required and therefore the accommodation under s 20 was lawful and any interference with the parent’s right to family life had been proportionate.The parent’s appealed to the Supreme Court.The Supreme Court dismissed the parent’s appeal against the Court of Appeal decision but on alternative grounds. Lady Hale went through the jurisprudence on s 20, which she said illustrated the problems with use of s 20, namely that use contains none of the safeguards and protections for children and parents of formal proceedings yet rushing into those proceedings may escalate matters and make reuniting a family more difficult.She concluded that s 20 depends upon proper delegation of parental responsibility rather than informed consent:‘A person with parental responsibility may arrange, of his or her own accord, for some or all of his or her parental responsibility to be met by others acting on his or her behalf … and the exercise of parental responsibility may be circumscribed by court order. But a local authority cannot interfere with a person’s exercise of their parental responsibility, against their will, unless they have first obtained a court order. Accordingly, no local authority has the right or the 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.’
Any delegation must be real and voluntary and can be withdrawn at any time under ChA 1989, s 20(7) regardless of the parent’s suitability or the suitability of the accommodation.Lady Hale went on to say that if a parent unequivocally requires the return of the child, the local authority have neither the power nor the duty to continue to accommodate the child and must either return the child in accordance with that requirement or obtain the power to continue to look after the child, either by way of police protection or an emergency protection order. As a matter of good practice, parents should be given clear information about their rights and the local authority’s responsibilities including other powers of protection.She concluded on the facts of this case that the solicitor’s instructed by the parents were trying to achieve the return of the children as quickly as possible on a collaborative basis and from their letters the parents were reluctantly prepared to delegate the responsibility for accommodating their children to avoid pushing the local authority into issuing proceedings which would have delayed matters longer. That delegation was never unequivocally withdrawn and therefore the ground upon which the judge held their human rights were breached pursuant to ECHR could not stand.Lady Hale also confirmed that delegation of parental responsibility was not an issue when a child was lost or abandoned. Finally, she observed that there is nothing within s 20 to limit that time that a child can be accommodated relying s 20. However, she cautioned that local authorities should consider other duties, including those imposed by the Care Planning, Placement and Case Review (England) Regulations 2010 (SI 2010/959) to plan for the child’s future in the long-term:‘[A]lthough it is not a breach of s 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 to do so. In some cases, there may also be breaches of the child’s or the parents’ rights under Art 8 of ECHR.’
