Watering down parental consent in use of section 20 accommodation

The use by local authorities of the power under section 20 of the Children Act 1989 to accommodate and look after a child, rather than to seek an order of the court, has long been problematic.  Section 20, at least in principle, leaves the responsibility of the parents entirely intact.  To that end, it cannot be used if the parent 'objects' (s.20(7)), and the parent can remove the child from the s.20 accommodation at any point.  In practice, however, it can often be the case that  parents faced with the offer of their children being taken to s.20 accommodation are vulnerable, and may often feel compelled to comply for fear of losing parental responsibility.  A line of cases have sought to emphasise a requirement of informed consent (see e.g.  R(G) v Nottingham CC [2008] EWHC 400 (admin) and Coventry City Council v C[2013] EWHC 2190 (Fam)).  The courts have stressed that s.20 must not be compulsion in disguise and consent must be properly obtained.

However, the issue recently came before the Court of Appeal in a civil claim for damages brought by two parents, who claimed that their children had been accommodated under s.20 without informed consent, and in breach of their Article 8 rights: see LB of Hackney v Williams [2017] EWCA Civ 26 (26th January 2017).

Sir Brian Leveson, giving the leading judgment of the court, considered that the actual wording of the s.20(7), in referring only to a parent who objects, and not one who consents, did not in fact require a local authority to obtain consent.  The previous statements made in various judgments to the opposite effect were merely statements of good practice, and not bottom line legal requirement.

Sir Brian Leveson does urge that the 'good practice' guidance should be followed.  The difficulty, surely, is that those protections previously in place will, if they are guidance only, become toothless.  The incentives for local authorities in avoiding the requirement for court proceedings by using s.20 are significant.  It might be thought that a requirement of consent is more in keeping with what appears to be the purpose of section 20, that is, to provide a power to look after a child where to do so is consistent with the wishes of those with parental responsibility.