Oliver Millington examines: Is parental consent necessary under section 20 of the Children Act 1989?

The recent Court of Appeal decision in London Borough of Hackney v Williams & Williams [2017] EWCA Civ 26 examines whether parental consent is necessary for accommodation of a child under section 20 of the Children Act 1989. This appeal resulted from a civil claim brought by the parents of 8 children, Mr and Mrs Williams, who sought damages against the London Borough of Hackney for misfeasance in public office, negligence, religious discrimination and for breach of their Article 8 rights.

The parents’ complaint related to a period of time between 5 July 2007 and 6 September 2007 during which all 8 children were accommodated in foster care under section 20. The trial judge dismissed the actions for misfeasance, discrimination and negligence but found that Hackney had failed to comply with its statutory duty under section 20 of the Children Act 1989 and were liable to pay damages for breach of Article 8 of the ECHR. Hackney appealed the decision.

The essential facts were as follows:

• On 5 July 2007, one of the older children was arrested on suspicion of shoplifting chocolate bars. The child told the security guard that he needed money for food; when seen by the police, he said that he had been beaten by his father with a belt, and that this was the explanation for a bruise on his face.
• As a result of what they had learned, the police visited the family home. The flat was in a poor, unhygienic state, with accumulations of dirt, an absence of food in the fridge, and an extremely dirty toilet; the children appeared dirty and unkempt. Sticks or twigs were found bound together which, at the least, suggested that they may have been used for the purposes of (or to threaten) corporal punishment.
• In the light of what they had seen, the police decided that the home was not in a fit state to be accommodation for the children, and as a result, they took all eight children into police protection.
• Both parents were subject to police bail conditions that stipulated that no unsupervised contact was permitted with any of the eight children “to prevent interference with victims”.
• On 6 July 2007 the parents signed a “safeguarding agreement” with Hackney under which the children were to remain in foster care. It was common ground that Mr and Mrs Williams had the capacity to understand what they were told and the consequences of the decision they were being asked to make.
• Mr and Mrs Williams were not fully informed when Hackney sought consent to accommodate their children, in particular, that the parents retained the right to take their children away from Hackney accommodation at any time.
• Throughout the period of care, no realistic alternatives to Hackney accommodation, such as extended family members or friends, were provided by Mr or Mrs Williams for the care of any of the children.
• Police bail conditions, preventing Mr and Mrs Williams from having any unsupervised access to their children, were at least a practical impediment to the return of the children to their parents.
• On 13 July Mr Williams, having taken legal advice, gave Hackney notice of his withdrawal of consent to be effective as of 23 July. On 16 July Hackney decided in principle that it was safe for the children to return home. However the children did not in fact return home until police bail conditions were finally varied on 6 September 2007.

The thrust of the case advanced by the parents in this case was that Hackney’s use of section 20 was unlawful. Although on the face of it, by the document signed on 6 July 2007, Mr and Mrs Williams had consented to their children remaining in foster placements “for the present time”, this consent, they argued, was unfairly obtained and not true consent of any sort. To that end, they relied on the guidance provided in Coventry City Council v C [2013] EWHC 2190 (Fam) per Hedley J and subsequent authorities.

The key issue on appeal was this: what was required as a matter of law, as opposed to subsequently identified good practice, before the local authority were permitted to accommodate the children under section 20?

Section 20(7) of the Children Act 1989 provides as follows:

‘(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 Court of Appeal made a number of uncontroversial observations about section 20(7). Firstly, where the circumstances described in the sub-section apply, there is a bar upon a local authority providing accommodation for a child under s. 20. Secondly, for s. 20(7) to apply, the person with parental responsibility must be ‘willing and able’ to provide, or arrange for, accommodation.

Sir Brian Leveson, the President of the Queen’s Bench Division, in giving the lead judgment goes on to state the following at paragraph 68:

“The third point to make with respect to s. 20(7) is of more general application and relates to the single word ‘objects’. The word ‘consent’ does not appear within s. 20. There is no express statutory requirement upon a local authority to obtain a positive expression of consent from a parent before accommodating a child under the various provisions in s. 20(1), (3), (4) and (5), let alone any requirement for such consent to be in writing and subject to any of the various refinements that have been described in the case-law to which I have referred. Nothing that is said in this judgment is intended in any manner to detract from or alter the terms of the good practice guidance that has been given, principally by Sir James Munby P and Hedley J, in these cases; the obvious wisdom and good sense of their words are plain to see. The present case is, however, a claim for damages pursuant to s. 8 of the Human Rights Act 1998, in relation to breach of statutory duty under s. 20 of the 1989 Act and breach of rights under Article 8 of the ECHR. Insofar as breach of statutory duty under s. 20 is concerned it is necessary, in my view, for a claimant to go further than establishing that the actions of the local authority fell short of what, subsequently identified, ‘good practice’ might require; the authority must be seen to have acted in breach of the terms of the statute.” (The writer’s emphasis in bold).

This decision at first blush appears to be at odds with earlier authorities that have suggested that express consent was necessary. In particular the President of the Family Division Sir James Mumby giving the lead judgment for the Court of Appeal in Re N [2015] EWCA 1112 states at paragraph 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“.

How to square that circle then? Sir Brian Leveson’s response in the instant case was as follows:

“68. 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.”

So what’s the bottom line? As the Court of Appeal re-iterates on several occasions in this judgment, local authorities must, for reasons of good administration, follow the practical guidance set out in the leading authorities when seeking to accommodate a child under section 20. However, a failure to follow such guidance will not of itself give rise to an actionable wrong; for that to arise, the claimant would need to establish a breach of statutory duty under section 20.

The Court of Appeal in London Borough of Hackney v Williams & Williams [2017] EWCA Civ 26 found unanimously that the claim brought by the parents under the Human Rights Act 1998 for breach of statutory duty under section 20 of the Children Act 1989 should have been dismissed and Hackney’s appeal was allowed.

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