Vardags Family Law Essay competition 2023/24 | Pavlos Andreou

Pavlos Andreou - University of Law

Introduction to Section 20 of the Children Act of 1989

Section 20 of the Children Act of 1989 (s20), also known as ‘voluntary accommodation’, has been the subject of the Supreme Court and academics, such as Masson, have debated its voluntary nature. The evolving case law in this area establishes that the local authority (LA) often misinterprets s20 regarding good social work practice. This misinterpretation led the LA to misuse or abuse s20 by accommodating children without obtaining the required parental consent or accommodating them for a long time without a clear plan for their future. This essay will demonstrate that the LA’s current use of s20 is incompatible with the aim of section 1(1) of the Children Act of 1989 (s1(1)). Before arguing this, s1(1) and s20 will be examined to illustrate their deteriorating common aim.

Local Authority’s Misinterpretation of Section 20

S1(1) is the welfare principle, in which the usual approach of considering the rights and responsibilities of both parties, typically the parents, is not followed by the court, nor is past conduct assessed when reaching a decision. Rather, the welfare principle looks to the future and focuses solely on the child. According to s1(1), the child’s welfare must be prioritised when making decisions regarding the child’s upbringing or property. For example, when courts determine where children should live, with whom they should have contact, and whether they should be placed in care, s1(1) seeks to promote the child’s present and future development, including their physical, moral, and religious welfare. Thus, as in J v C, the welfare-related decision must consider the child as ‘‘first and paramount’’ and be made immediately.

Incompatibility of Section 20 with Section 1(1) Goals

Under s20, the LA must provide voluntary accommodation for children in need. When parents are in crisis, this duty is enacted to help. Under s20(1), ‘‘children in need’’ may be lost, or abandoned, or without housing or care if a person cannot provide it. Such children may be ‘‘seriously prejudiced’’ if not accommodated. If the child meets the aforementioned criteria, social workers and parents must reach an agreement without court involvement to arrange whether the child will be placed in kinship, residential, or foster care which will fundamentally be a short-term arrangement. This can occur if the LA partners with the parents to exercise day-to-day management powers by considering the parents’ and the child’s wishes after the LA specifies any financial repercussions to the parents. If done correctly, this will allow them to retain parental responsibility (PR) while the child is accommodated and the right to remove it without notice. Thus, s20 must foster mutual trust and unity between the social workers, families, and children to meet the child’s placement, training, and rehabilitation needs. Therefore, the LA can use s20 to achieve the s1(1) welfare aim, as its aim is ‘‘widely understood’’. However, if the arrangements are not court-supervised, it must be questioned whether the voluntary multi-agency interventions under s20 serve the child’s welfare through the LA’s professional loyalty to supportive approaches and, consequently, the s1(1) aim.

Issues with Parental Consent and Capacity Fluctuations

The courts have criticised the use of s20 by the LA for failing to ensure that parents have the capacity to provide the necessary consent. Hedley J stated in Coventry City Council v C that whatever the context, the s20 agreement is invalid unless the parent giving consent has the capacity to do so. In this case, the mother consented to having her child accommodated under s20 despite having learning difficulties, raising the argument of whether she was in the right state of mind to make this decision. Should it be deemed that the mother was too ill to consent to having her child removed, an unlawful situation will have occurred under s20. Furthermore, in Re CA, a mother was rendered incapable of consenting after morphine was used to assist a difficult birth. Thus, capacity fluctuates, and a parent’s consent obtained by the LA without conducting a capacity assessment renders the s20 agreement for accommodating a child unlawful, pointing out that such use by the LA diverts from the s1(1) aim. As a result, Hedley J advised the LA to use s20 to consider section 3 of the Mental Capacity Act 2005 or Chapter 4 of its Code of Practice when relying on a parent’s decision to obtain informed consent to avoid unlawful accommodation. In emergencies, the parent should be reviewed within 72 hours.

Coercion in Parental Consent

Furthermore, Tomlinson LJ’s ‘‘almost comical’’description of the LA’s s20 agreements with parents uncovers that the LA often coerces parental consent, which blurs the boundary between voluntariness and coercion As observed, the LA uses ‘‘soft coercion’’ to convince parents to accept s20 accommodation. The LA warns parents that if they do not consent to the s20 ‘‘voluntary’’ agreement, they will seek an Interim Care Order (ICO) to share PR, posing the risk of losing it altogether. In Re W the parents felt s20 was their only option to avoid being labelled uncooperative after an LA threatened to use police protection to remove the child. However, because the courts view the LA as knowledgeable, a ‘‘backdoor’’ ICO is likely. In Williams v Hackney (Williams), the Supreme Court noted that the parents were advantaged because the experienced solicitors had written to the LA to arrange the children’s return in a further ten days, making the parents seem cooperative. In turn, this prevented the LA from fabricating evidence for their purposes. Therefore, academics have suggested that parents should be entitled to independent advice and representation better to understand the implications for themselves and their children, although s20 does not provide this.

Thus, Hedley J advised the LA not to obtain consent by ‘‘compulsion in disguise’’, which would put parents under duress; instead, it would promote a welfare discussion to comply with the s1(1).

Parental Rights: Need for independent advice and affirmative parental consent

The LA’s improper use of s20 was compounded by the lack of a statutory provision requiring affirmative parental consent of understanding s20. The word ‘object’, rather than consent, appears in the statutory language of s20(7), which states that the person with PR must be ‘‘willing and able’’ to arrange accommodation. However, the term ‘object’, despite having to be ‘‘real and voluntary’’ perplexes the LA as this eradicates the need for positive consent. This raises the question of whether silence can be taken as such, as in Williams, the reluctance of the parents’ to object to their children’s accommodation was lawful. Further, as a result of consent being given in Re C despite the absence of an interpreter to assist a deaf father and a mother with cognitive and speech issues, the ‘‘Best Guidance’’ has suggested that a written and signed document for explanation of what is being consented to is essential, alongside the assistance of an interpreter, should this be required. Although the opinion of elevating the requirement of consent to a rule of law would be incorrect because each case is decided on its own facts, the LA should obtain positive consent, not silence, submission, or acquiescence, to ensure compatibility with s1(1).

Unnecessary Delays in Child Accommodation under Section 20

Aside from the issue of lack of consent that renders the current use of s20 by the LA incompatible with the aim of s1(1), as demonstrated above, another major issue is the unnecessary delay that is permitted due to the lengthy periods of time children are housed for under s20. As Lady Hale explained in a Supreme Court ruling, there is no limit on how long a child can be accommodated under s20, but it has a variety of duties towards the children they are accommodating In Re N, where children were housed for eight months, it was deemed ‘‘unacceptable’’ for an LA to abuse s20 by extending the placement to one month as a prelude to care proceedings. In Herefordshire Council v AB, where two children were separated from their families for eight and nine years, this was deemed ‘‘intolerable.’’ Therefore, these prolonged periods of accommodation for children under s20 deprive the child of the benefit of having their best interests protected and good future planning, which conflicts with the aim of s1(1) because the children are left in legal limbo. Consequently, although it was mentioned above that s20 is a fundamentally short-term measure in family crises, it appears that s20 has the effect of delaying court proceedings, and when it is used for more than a brief period, Masson believes its purpose must be strictly considered.

Section 20(8) and Delays in Child Protection Responsibilities

In addition, subsection 8 of s20 also causes delay, as in various cases it was difficult to be reconciled with an LA’s child protection responsibilities, which Lady Hale emphasised above, are owed despite the absence of a time limit. Although the s20(8) allows any person with PR to remove a child from s20 accommodation at any time and without notice to an LA, the LA frequently fails or refuses to immediately return the child to the parents. To emphasise this, the author Louise Tickle titled her article, ‘‘The State has a terrible secret: it kidnaps our children’’ However, if an LA refused the return of a child to intoxicated parents wishing to drive the child home, s20 would be compatible with the aim of s1(1) because the child’s safety would be adequately protected. For example, in Williams, the parents were reasonably refused their children by the LA, due to them being on police bail. These refusals, despite parents’ claims that they violated their and their children’s human rights, occur after the LA considers whether a child’s removal poses a substantial risk of harm, and they are observed conducting child protection investigations. However, in the latest conjoined HXA and YXA cases, Baker LJ held that an LA accommodating a child under s20 is capable of amounting to ‘‘something more’’ to give rise to an assumption of responsibility such as a duty of care which can only be answered on a case-by-case basis. Thus, for an LA to exercise good social work practice of s20, it would be safer to provide a specific period of notice of their intention to withdraw consent.

Conclusion

In conclusion, the above arguments highlight that s20’s current use is incompatible with the aim of s1(1) for persons with PR who face coercion to agree, not being in the right capacity when agreeing, not being adequately informed of their rights and the LA’s responsibilities, and unnecessary delays due to the LA’s reluctance, violating their rights and putting the children at risk, glossing over the black letter of the law. However, the current use of s20 would be deemed compatible in cases where the LA refused the immediate return of children due to ongoing investigations and risk assessments to protect the children’s physical, emotional, and mental health.

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Bibliography

Primary sources:

Legislations:

1. Children Act of 1989
2. Human Rights Act 1998

Cases:

1. Coventry City Council v C, B, Children Act & CH [2012] EWHC 2191
2. Herefordshire Council v AB [2018] EWFC 1
3. HXA v Surrey CC; YXA v Wolverhampton CC [2022] EWCA Civ 1196
4. J v C [1970] AC 668
5. Medway Council v M & T [2015] EWFC B164
6. Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam)
7. R (S) v Sutton London Borough [2007] 2 FLR 849
8. R v London of Barnet [2009] 2 FLR 725
9. R v Tameside Metropolitan Borough Council, ex parte J [2000] 1 FCR 173
10. Re C (A Child) [2015] 1 FLR 521
11. Re CA (A baby) [2012] EWHC 2190
12. Re McGrath (Infants) [1893] 1 Ch 143
13. Re N (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 1 FLR 621
14. Re S (Adult Patient: Sterilisation) [2001] Fam 15 (CA)
15. Re W (Children) [2014] EWCA Civ 1065
16. London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26
17. Williams v The London Borough of Hackney [2018] UKSC 37

Secondary sources:

Books:

1. Lamont R, Family Law (1st edn, Oxford University Press 2018) 347
2. Masson J, McGovern D, Pick K, Oakley M W, Protecting Powers: Emergency Intervention for Children’s Protection (NSPCC 2007) 90 and 151

3. Miles J, George R, Harris-Short S, Family Law: Text, Cases, and Materials (4th edn, University Oxford Press, 2019) 842

Journal articles:

1. Herring J, ‘Farewell Welfare?’ [2011] JSWL 159, 168
2. Sloan B, ‘Voluntary or compulsory intervention in family life?’ (2019) 78(3) CLJ 477, 478

Newspaper article:

1. Tickle L, ‘The state has a terrible secret: it kidnaps our children’ The Guardian (London, May 3 2018) 1 accessed 7 January 2024

Online articles:

1. Gomersall H, ‘Section 20: Abused, or Just Not Used?’ (Family Law, 17 August 2015)accessed 7 January 2024
2. Masson J, ‘Emergency Intervention to Protect Children: Using and Avoiding Legal Controls’ (2005) Child and Fam Law Quarterly 75 at 82
3. Masson J, ‘Understanding the Current Use of s20’ [2018] Fam Law, 1289
4. Phillmore S, ‘What Does ‘‘Section 20” Mean? And When Should It Be Used?’ (Child Protection Resource, February 2014) accessed 7 January 2024
5. Pitt L, ‘How Voluntary is Voluntary Accommodation?’ (Family Law Week, 8 August 2015) accessed 7 January 2024
6. Stevenson L, ‘Keeping children in section 20 without proceedings for long periods may breach the law’ (Community Care, 10 July 2018) accessed 7 January 2024