An important decision of the Court of Appeal was handed down in November 2015, which should help to guide local authorities and improve their practice in relation to the use of section 20 Children Act (CA from here-on-in) 1989 throughout the remainder of 2016 and beyond.
In this case, Sir James Munby, President of the Family Division, stated that the “misuse and abuse of section 20…is wrong (and) it will no longer be tolerated”. He commented on the unacceptable delay in proceedings. He suggested that local authorities which use section 20 “as a prelude to care proceedings for lengthy periods”, or which fail to follow the good practice identified by him in his judgment, which I will discuss later, can expect to be “subjected to probing questioning by the court”.
The present case
The case in which the judgment was made was an appeal brought by a local authority against a decision of HHJ Bellamy at the final hearing of care and placement order proceedings. It related to two Hungarian children whose mother was Hungarian and father was Hungarian/Roma. The children had been placed in foster care with an English family. The parents of the children had agreed to them being accommodated by the local authority under section 20 CA 1989. The mother applied for an order regarding jurisdiction. The court granted the mother’s application for an order requesting the Hungarian court to assume jurisdiction in the adoption proceedings, therefore transferring proceedings to Hungary, pursuant Article 15 of Council Regulation (EC) no 2201/2003.
The essential issue in the appeal was whether HHJ Bellamy was correct to proceed under Article 15. The Court of Appeal dismissed the appeal of the local authority, therefore confirming the initial judgment.
However, during the hearing, the issues explored by Sir James Munby broadened. One of the issues that arose, which I will be focusing on in this article, was the use of section 20 CA 1989.
Section 20 Children Act 1989
I will now concentrate on the misuse of Section 20 within this case, and indeed other cases, and how Sir James Munby not only highlighted the shortcomings of the local authority in this case, but also set out good practice which other local authorities should follow in the future.
The law reads as follows:
Section 20 – Provision of accommodation for children: general
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
Recently, there have been numerous cases where local authorities have been criticised for accommodating children under section 20 agreements for too long a time period before proceedings are issued. This inevitably causes delay and leaves the children’s future hanging in the balance, creating much uncertainty for them. It is thought that perhaps one reason why local authorities are delaying issuing proceedings is to use it as a tool to help keep within the 26 week timetable that begins from the time that proceedings are issued. It can be highly damaging for the children though, especially given that they are deprived of having a children’s guardian to represent their interests until proceedings are issued, and indeed goes against the very premise and purpose of attempts to limit proceedings to 26 weeks.
In the present case the children were placed in accommodation in May 2013 in accordance with section 20. However, care proceedings were not issued until January 2014, some 8 months later. Sir James Munby reasoned that although is some cases section 20 may be used effectively as a short-term measure to prevent the commencement of care proceedings, the use of it to delay proceedings being issued for as long as 8 months, as it was here, is “wholly unacceptable” and is a “misuse by the local authority of its statutory powers”.
He went on to highlight the recent case law in which local authorities were criticised for the misuse of section 20. Four discrete problems were set out:
- The failure of the local authority to obtain informed consent to accommodation from the parents at the outset of proceedings, going against section 20(7) which provides that a local authority cannot use its powers if a parent “objects”.
- The form in which the consent of the parents is recorded. Although the local authorities are not required by law to evidence the agreement in writing, a “prudent” local authority should ensure that parental consent is properly recorded in writing.
- The arrangements under section 20 are permitted to continue for too long, as focused on in this article.
- The apparent reluctance of local authorities to return the children to the parents immediately upon a withdrawal of parental consent. As a result of section 20(8) providing that “any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section”, a local authority which fails to allow a parent to remove a child in circumstances within section 20(8) acts unlawfully.
Guidelines for good future practice
Sir James Munby went on to provide guidance for future good practice in relation to procedure under section 20 to eradicate the shortcomings listed above:
- i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.
ii)The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.
iii)The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.
- iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).
- v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’
It is hoped that now that the above issues have been addressed, local authorities will take note and ensure good practice is carried out. Misuse of section 20 is a denial of the fundamental rights of both the parent and child and “must stop”. It is expected that local authorities will follow the good practice set out above from now on, or can be expected to be subject to serious questioning by the court and stringent criticism, with even potential claims against them for damages.
There have been signs of the courts already stepping up the efforts to ensure good practice is carried out to prevent the misuse of section 20. Recently, a West London Family Court local practice direction has been made, providing that all cases involving a “significant” section 20 delay will be listed before a circuit judge. Judge Rowe sitting at West London has awarded damages for over £3,000 in one case involving a 2 month period under section 20.
It will be interesting to see whether local authorities adapt their methods of practice in the coming months, and especially to see whether there is a general reduction in the time between accommodation under section 20 and the issuing of proceedings.
Please contact us regarding any of the issues in this article or if you would like further advice.
Ben Dos Santos
Paralegal to Jonquil Houghton