Council had lawful basis for accommodating children under section 20 of the Children Act 1989
Foster children can continue to receive accommodation where their parents have not requested their return.
The Supreme Court’s decision in Williams & anor v Hackney LBC  UKSC 37
In a keenly-awaited decision, the Supreme Court has found that there was a lawful basis for the continued accommodation of eight children in foster care under section 20 of the Children Act 1989 (‘the Act’), where their parents had not objected or unequivocally requested their immediate return. However, there were circumstances in which a real and voluntary delegation of the exercise of parental responsibility was required for a local authority to accommodate a child under section 20.
Mr & Mrs Williams, the parents of eight children retained in foster care under the Act appealed against a decision that the council did not require their positive consent to the children's accommodation.
The children were aged between eight months and 14 years. They were removed into police protection for 72 hours under section 46 of the Act and were provided with foster placements by the respondent council. The parents were arrested on suspicion of assault and bailed on condition that they would not have unsupervised contact with their children. The council obtained the parents' signatures to a safeguarding agreement under section 20 which authorised the council's continued accommodation of the children. Mr & Mrs Williams were not told of their right to object to the children's continued accommodation under section 20(7) or of their right to remove them at any time under section 20(8).
When the 72 hours of police protection expired, the parents asked for the children to be returned to them. That request was denied and solicitors acting for them gave formal notice of the Williams' withdrawal of consent. The council decided that the children should be returned home as soon as possible but this did not happen until after the bail conditions were varied two months later. The criminal proceedings against the Williams were later dropped.
Six years later, in 2013, Mr. & Mrs. Williams issued a number of applications, including one for damages for breach of their Article 8 European Convention right to respect for family life, claiming that the accommodation after 72 hours had no lawful basis. At first instance, a judge concluded that the council had failed to comply with its statutory duty under the Act, and was liable to pay damages to the parents for breach of Article 8 of the European Convention on Human Rights. The judge's conclusions were overturned on appeal, with the Court of Appeal instead finding that there had been a lawful basis for the children's accommodation.
The Supreme Court’s decision
The court concluded that if a parent delegated the exercise of their parental responsibility for a child to the local authority under section 20, that delegation had to be real and voluntary. The best way to ensure that was by informing the parent fully of their rights under section 20, but delegation could still be real and voluntary without being informed. Where a council exercised its section 20 powers in circumstances where there was no-one with parental responsibility for the child, the child was lost or abandoned, or the parent was not offering to look after the child, active consent or delegation was not required.
If a parent with unrestricted parental responsibility objected at any time under to section 20(7), the council could not accommodate the child under section 20 regardless of the suitability of the parent or of the accommodation which the parent wished to arrange. The court also found that, although it was not a breach of section 20 to keep a child in accommodation for a long period without bringing care proceedings, it could be a breach of other duties under the Act or unreasonable in public law terms to do so, and might also breach the child's or the parents' Article 8 rights.
In this case, the council began looking after the children because they had been taken into police protection. It was not a case in which the council used their section 20 powers to take charge of children who were then in the care of their parents which meant that the section 20 arrangements replaced the compulsory arrangements under section 46 without the children returning home in the meantime. The focus, therefore, was not on the parents' voluntary delegation of parental responsibility but on their rights under section 20(7) and (8). Entering into a safeguarding agreement was a matter of good practice, although it was important that it did not give the impression that the parents had no right to object or to remove the children.
The lawfulness of the section 20 accommodation depended on whether the parents' actions after the expiry of the police protection order amounted to an unequivocal request for the children to be returned. The bail conditions were not an insurmountable barrier to the request and were not a reason to refuse but the letters from the parents' solicitors could not be construed as an unequivocal request for immediate return: the solicitors were sensibly trying to achieve the children’s return as quickly as possible without care proceedings. Even of the council had acted more quickly in supporting an application to vary bail, this might not have been successful in view of the concerns of the police at the time.
Conclusions and implications
Lady Hale, who gave the Supreme Court’s judgment, concluded that it followed that, the parents not having objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under section 20. This case may not materially alter the way in which the legislation works, but it is useful in terms of the commentary around the key provisions, particularly the court’s dismissal of the claim being based on its conclusion that the letter from Mr & Mrs Williams’ solicitors did not meet the section 20 criteria for the children’s immediate return, rather than the Court of Appeal’s argument that it was the bail conditions which nullified the requirement for parental consent.