One area expected to change further concerns Section 20 of the Children Act 1989. This provision established a duty upon a Local Authorities (LAs) to provide a child with somewhere to live when they lack someone with parental responsibility for them and/or are unable to live at home or their welfare is at risk.

Section 20 is used to facilitate a voluntary arrangement i.e. with the consent of the child’s parent(s). Often s.20 is used to temporarily accommodate a child for a period of time during which his or her family are struggling to cope (at their request). In this way s.20 can be used as a useful mechanism for swiftly accommodating children away from their family without the need for court proceedings. A s.20 arrangement comes to an end upon the objection of a person with parental responsibility for the child who is willing and able to provide suitable accommodation.

The quick and simple process of accommodating under s.20 is, however, both a blessing and a curse. The Courts are acutely aware of the lack of a Children’s Guardian to safeguard the child’s interests and the fact that s.20 procedures are without the strict timetable of proceedings can mean that the time-frame for the accommodation provided is rather open-ended. Case law establishes that the onus is therefore on LAs to be more vigilant than ever as to the child’s best interests both in the near and long term.

Until relatively recently the purpose of s.20 appears to have been ‘misinterpreted’ by LAs. In defence of LAs the section itself does not set out the gloss that the higher courts have now imposed upon it and, when reading the case-law in conjunction purely with the wording of the Act, one might be forgiven for thinking the two were entirely distinct.

N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 (at paragraphs 157-171) focuses on the misuse and abuse of s.20. According to Munby P “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated" and “steps must be taken as a matter of urgency to ensure that there is no repetition ever again”. A spate of case law around this time identified three main problems arising out of the use of s.20:

  1. Cases in which a ‘voluntary’ arrangement has been reached, but for some reason the consent to the arrangement was not valid (either by coercion or a lack of capacity);
  2. Cases involving poorly drafted voluntary arrangements;
  3. Cases where a child has been accommodated under a s.20 arrangement for a considerable length of time such that the accommodation becomes unlawful. 

Consent to Voluntary Accommodation

In Williams v London Borough of Hackney [2015] EWHC 2629 (QB) the ‘voluntary’ agreement was referred to as “compulsion in disguise”. LA’s must be entirely satisfied that the consent to accommodate is obtained without compulsion and with the full knowledge and understanding of the child’s parents who have the capacity to give such consent.

Each individual social worker’s professional duty is to be satisfied that the parent(s) act with capacity, and give properly informed consent.  The social worker must consider the issue of capacity, the physical and psychological state of the parent(s), their understanding of what is proposed, their access to advice and support, whether removal is necessary to ensure safety and whether it would be fairer for the matter to be dealt with by court order rather than agreement. A further concern is raised in circumstances where parents are not fluent in English and LA’s must explicitly ensure proper understanding in these cases.

Drafting of Agreements

At paragraph 170 of N (Children) Munby P offers guidance for future ‘good practice’ when drafting agreements and advised: “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.”

How Long is Too Long?

Extended accommodation under a s.20 arrangement is likely to result in a breach of either the child’s and/or parent’s Article 8 or Article 5 or Article 6 ECHR rights. This is because at the same time that the child/parent is deprived from access to his or her family life they are also deprived of the recourse to and protection of the Courts that comes with the commencement of care proceedings.

In Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam) regarding the serious abuse of s.20 where a newborn remained accommodated for 5½ months before proceedings were initiated, Keehan J stated: “I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most.”

As a general rule, as soon as it becomes clear that accommodation pursuant to s.20 is likely to be required in the longer term (steps should immediately be undertaken to determine this), and what is required is more than a temporary ‘emergency’ measure, then a decision must be made to either return the child to his or her family or to start care proceedings. For younger children it is likely that the length of time that is deemed to be acceptable will be shorter than for older children (in newborn babies the length of time is likely to be very short; a matter of hours or days only). In every case the maximum length of time should be no more than a matter of days or at most, weeks. LAs are advised to carry out urgent reviews of children being accommodated pursuant to s.20 arrangements and to act accordingly.

Valuing Claims

Medway Council v M &T (By Her Children's Guardian) [2015] EWFC B164, where HHJ Lazarus awarded mother and child each £20,000 damages for breach of Article 8 rights, includes a useful table of case law relating to the award of damages for such breaches.

Effect of CN v Poole BC / Armes v Nottinghamshire CC?

CN v Poole Borough Council [2017] EWCA Civ 2185 established (noting an appeal is on its way) that ‘failure to remove’ and ‘in-care’ claims are to be treated differently: In the former case there is likely to be no duty on LAs to act whereas in the latter there is likely to be a duty of care (both a non-delegable primary duty and, following Armes v Nottinghamshire County Council [2017] UKSC 60, the scope for vicarious liability for those entrusted with the child’s care).

This distinction poses a question as to whether there is a duty of care in respect of those children accommodated pursuant to s.20 arrangements and/or whether the LA might be vicariously liable for the actions of the carers with whom the child is placed?

Clearly, the control that the LA exercises over the child’s living arrangements is far greater when accommodated pursuant to s.20 than when the child resides with his or her family (and may be subject to social services monitoring), however, the control is far less than that provided where a care order is in place. Instead of a ‘general rule’ it is likely that the imposition of liability will depend upon whether injury suffered by the child can be said to have been caused by a failing in an aspect of the child’s care over which the LA can properly be said to have had control.

It is important to remember when considering a claim involving a s.20 arrangement that even if a common law negligence claim looks likely to fail for want of a duty of care, there remains the potential avenue to establish liability and financial compensation that flows from breach of the Human Rights Act 1998.