Section 20 arrangements as a long-term measure for the accommodation of children

Introduction

The Court of Appeal had very recently this year sought to provide some much-needed clarity on the use of Local Authority accommodating children under s.20 Children Act 1989. The Court had heard two appeals jointly in the case of Re S (A Child) and Re W (A Child) (s 20 Accommodation) [2023] EWCA Civ 1.

Lady Justice King had provided the leading judgment which allowed both appeals and sets out that children can be voluntarily accommodated under section 20 Children Act 1989 as a long-term measure, without need for a care order, where the placement and care plan are supported by the children’s parents.

In this article, we will be exploring the fundamentals that practitioners should keep in mind going forward as to the use of Section 20 as an appropriate measure for accommodating children.

The facts

The facts of Re S and Re W are set out in a concise summary below.

Re S

• S is a 9 year old boy who has complex needs including ASD, ADHD and a lack of awareness of danger together with significant behavioural issues. Furthermore, domestic abuse has been a feature of the relationship between S’s parents.
• S’s behaviour became increasingly challenging and S’s mother indicated to the Local Authority she was struggling to cope. S was accommodated by the Local Authority (London Borough of Sutton) and made a phased transition to a residential unit where he has remained ever since.
• The Local Authority issued care proceedings following the transition to the residential unit on the basis that they perceived S’s mother was unable to commit to S’s return home or alternatively to a timescale for his rehabilitation. No interim care order was made.
• The Local Authority sought for a care order and argued that section 20 was not an appropriate mechanism for caring for S in the long term. The parents opposed the making of a care order and argued that threshold was not satisfied.
• The Court found threshold to be satisfied on the basis that S was beyond parental control and thereafter, made a care order.

Re W

• W is a child who has significant and complex needs who later developed behavioural issues when reaching adolescence.
• W’s father, with the agreement of W and her mother, signed a Section 20 agreement and was placed with foster carers.
• The parents initially agreed to the making of a care order but, having had an opportunity to take legal advice, they informed the local authority that they would oppose the making of a care order and sought to continue the section 20 agreement.
• The Local Authority (Kent County Council) issued care proceedings. It was agreed by the parents and the local authority that the threshold for a care order was met on the basis of ‘beyond parental control’.
• The Local Authority’s application for a care order was supported by the Guardian. The parents opposed the making of a care order on the basis it was neither necessary nor proportionate and that the section 20 agreement should continue.
• The Court determined that a care order should be made
• HHJ Coffey also stated in that judgment that section 20 agreements should not be used as a long term tool and that where W was to be in foster care ‘in the medium to long term’ ‘there is a need for a care order and that in such circumstances it is necessary and proportionate to make a care order notwithstanding the very positive way everyone concerned in this case has been supporting [W] in her placement’.

The appeal

Lady Justice King had set out a thorough analysis of the legal authorities when considering the parameters of section 20. Practitioners should have in mind the leading authority on the use of Section 20 Children Act 1989 is the Supreme Court decision of Williams & Another v London Borough of Hackney [2018] UKSC 37, [2018] AC 421.

The fundamental principles arising from Lady Justice King’s analysis can be found at Paragraph 45 of the judgment and can be summarised as follows:

1. Parents may ask the local authority to accommodate a child as part of the services they provide for children in need (confirmed in Williams v LBH – para 41)

2. There is no statutory limit on how long a child can be in section 20 accommodation. (confirmed in Williams v LBH – para 49)

3. A local authority cannot provide accommodation under section 20 if any person with parental responsibility, who can provide or arrange for accommodation to be provided for a child, objects. (s 20(7) CA 1989)

4. Whilst a person with parental responsibility may not surrender or transfer any part of their parental responsibility, they may delegate it by arranging for some or all of it to be met by one or more persons on their behalf. (s2(9) CA 1989)

5. By agreeing to the accommodation of their child under section 20, a parent is delegating parental responsibility to make day-to-day decisions to the local authority. (confirmed in Williams v LBH – para 39)

6. Any person with parental responsibility may remove a child at any time from the accommodation (s 20(8) CA 1989).

7. If there is a child arrangements order naming a person with whom a child is to live and that person agrees to the child being accommodated under section 20, no other person with parental responsibility may object or remove the child (s 20(9) CA 1989).

It perhaps bares emphasis that Lady Justice King also considered the authority of Re HW (Children) [2022] UKSC 1451 and focused on the observations of Dame Siobhan Keegan at paragraph 45 which noted:

“The effect of a care order is to vest parental responsibility for the child in the local authority: section 33 Children Act 1989. Thereafter, the parents can exercise their parental responsibility only to the extent that the local authority determines. As this court explained in In re B, that intrusive power clearly engages the article 8 rights of the parents and children. It follows that a care order can only be made, even if the statutory threshold criteria under section 31(2) are met, if such an order is necessary in a democratic society for the protection of the child(ren)’s right to grow up free from harm. That means that the order can be made only if it is proportionate to the needs of the situation.”

The key message being taken from this observation being that even though the threshold criteria can be met for the making of a care order, it doesn’t follow that a care order is automatically made. The Court still has to consider whether the order is necessary and proportionate.

At the conclusion of the judgment, the Court of Appeal allowed both appeals in Re S and Re W. While the reasoning for each decision is fact-specific, the common thread is that the making of a care order was not a proportionate step to the risks that were identified in the respective judgments in the lower courts. The Court of Appeal determined that in both cases, the least interventionist approach was in fact no public law order being made and the children continuing to be cared for by the local authority under s.20 Children Act 1989.

As a final point, Lady Justice King had said this at Paragraph 84:

“I would simply conclude by saying that each of these two cases must be viewed in the context in which they have come before this court, that is to say in relation to children who are settled in long-term placements which are meeting their respective needs in circumstances where both the placements and the accompanying care plans are supported by the parents. As the judge in Re W observed, no court has hitherto considered the use of a section 20 order in this type of situation and it is hoped that this appeal will have served to fill that gap. Nothing I have said should on any view be taken to seek to undermine or dilute the Supreme Court’s decision in Williams v Hackney LBC.”

The PLWG Report

As part of the judgment, the Court of Appeal had also explored the best practice guidance that had been set out in the Public Law Working Group Report (March 2021) which was established by the President of the Family Division, Sir Andrew McFarlane.

Practitioners should note that the report highlighted the observations of Sir James Munby, who was the President of the Family Division at the time, in Re N: (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 and can be located at paragraph 171 of that case:

“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”

The President’s observations had the intention of reducing the number of cases in which section 20 had been misused by the local authorities however, when analysing this further, it could be suggested that these strong words had instilled such a high level of caution amongst local authorities that it led to reducing the total number of cases in which section 20 could be used as an appropriate measure. 

Furthermore, it may have had the unintended effect of instilling a view amongst the family justice system that section 20 is to be used as a short-term measure only. Indeed, the PLWG Report had commented on this further at Paragraph 232:

 “In summary, s20, contains important statutory provisions and the (appropriate) use of these provisions has sharply declined. This may have contributed to the increase in public law applications in circumstances where the use of s20 may have better met the needs of the subject children and their families. There is an urgent need to reverse the trend in the decline of the appropriate use of these provisions”

On a final note, for those who are local practitioners in Cheshire and Merseyside, these issues of section 20 set out above had recently been considered by our circuit’s designated family judge, HHJ Parker, in the case of A and B (a child by his litigation friend) and a local authority [2023] EWFC 98.

The relevant passage to keep in mind can be found at Paragraph 18 of the judgment:

“I wholeheartedly and respectfully agree with the observations that were made by Lady Justice King about the move that has taken place in the family justice system, away from appropriate use of section 20 Children Act 1989 provision, local authorities choosing instead to launch into care proceedings.  The previous Court of Appeal and High Court decisions relating to what was then perceived to be the overuse of section 20 were in cases where children were perceived to be languishing without proper provision, pursuant to section 20, without the oversight of a children’s guardian and where their welfare needs were not being met. They were simply drifting.  Rather than moving towards a situation of proper balance in meeting the welfare needs of children, in my judgment, the pendulum has swung too far, and it is now time to redress the balance in the use of section 20 which can in appropriate cases be for longer rather than shorter periods.”

It shouldn’t be lost on practitioners that there has been a strong emphasis placed on the need to change current practices in the family justice system which have led to strain on court resources. Indeed, the emphasis from the judiciary has been the need to implement the relaunch of the Public Law Outline so as to reduce the number of hearings in public law cases. 

Having that in mind, it could perhaps be taken from the observations in the judgment set out above that local authorities need to consider whether care proceedings are justified if a child is already being accommodated under Section 20 and for all intents and purposes, that placement is doing very well and is supported by the parents.

Conclusion

Having consideration for the above, the key takeaway points are:

1. Section 20 arrangements are not just short-term measures, they can be long-term measures as well and therefore, care proceedings may not even be needed in any event.

2. Satisfying the threshold criteria for a care order does not automatically mean a care order should be made. The Court still needs to consider what is the least interventionist option for the child and, in the right case, that could be a Section 20 arrangement.

3. If a child’s needs are being met under a Section 20 placement which is supported by the parents then the Court may be less persuaded that the Local Authority sharing parental responsibility under a care order is a proportionate step.

Written by Consultant Barrister, Amjad Kadhim.