Human Rights Act Claims: Section 20
On 18thJuly 2018, the Supreme Court handed down judgment in the long-awaited ‘section 20’ case: Williams and another v London Borough of Hackney  UKSC 37. It concerns the limits of local authority’s powers and duties under section 20 of the Children Act 1989 to provide accommodation for children in need.
One of the parents’ 8 children, who was aged 12 at the relevant time on 5thJuly 2007, was caught shoplifting. On speaking to the police that day, he made allegations that his father had hit him with a belt and further that he had no money for lunch. During a police visit to the home, the police exercised their powers of protection under s.46 of the Children Act 1989 and removed the children from the home. The parents were arrested, interviewed and subsequently placed on bail with the condition that they could not have unsupervised contact with the children. Meanwhile the local authority arranged foster places for the children.
On 6thJuly 2007 the parents were asked to sign an agreement that the children would remain in foster care, although were not informed of their rights under s.20(7) and s.20(8) to object to the accommodation or to remove the children at any time.
On 13thJuly, solicitors for the parents gave notice of their intention to withdraw consent. The local authority took the decision on 16thJuly to return the children as soon as practicable. However, it was not until 6thSeptember that the police bail conditions were varied to permit contact and it was not until 11thSeptember that the children were able to return home.
The parents issued a Human Rights Act 2008 claim in July 2013, which was heard by the High Court. Sir Robert Francis QC, sitting as a Deputy High Court Judge, upheld the Human Rights Act claim awarding the parents £10,000 each:  EWHC 2629 (QB). He determined that, after the 72 hours permitted by s.46 had expired, there was no lawful basis for the continued accommodation of the children and that therefore the interference with article 8 was not in accordance with the law.
The local authority appealed to the Court of Appeal:  EWCA Civ 26. That court, allowed the appeal with Sir Brian Leveson P stating: “The focus of the court in the present appeal is on the bottom-line legal requirements that are established by s 20 and within which a local authority must act.The guidance given in the family court, which has built upon that bottom-line in the period since the Williams’ children were removed, identifies clear, cooperative and sensible ways in which a voluntary arrangement can be made between a parent and a local authority when a child may need to be accommodated; it is, in short, good practice guidance and a description of the process that the family court expects to be followed. For reasons of good administration, the practice guidance should continue to be followed, notwithstanding the limits of the underlying legal requirements in s 20 that I have identified but a failure to follow it does not, of itself, give rise to an actionable wrong, or found a claim for judicial review.” [para 77]
Subsequently, the parents appealed to the Supreme Court.
The Supreme Court held that, because the parents did not unequivocally request the immediate return of the children, there was a lawful basis for the continued accommodation under section 20. The parents’ appeal was unanimously dismissed, with Lady Hale giving the court’s judgement:  UKSC 37.
Section 20 allows a local authority to provide accommodation to a child in need and a court order is not required for its operation. It is subject to specific safeguards:
- s.20(7) permits a person with parental responsibility to object if they are willing and able to provide or arrange for accommodation of the child;
- s.20(8) allows that any person with parental responsibility may remove the child from that accommodatio
The court refers to the relevant statutory materials in its judgement [paras 2-3] and provides a historical overview of the Children Act 1989 [paras 14-20]. Specifically dealing with section 20, the court sets out the previous case law [paras 21-37].
Lady Hale goes on to set out helpful guidance on the operation of s.20, condensed into 9 points, and practitioners are invited to read the judgment in full in this regard:
- The starting point must be parental responsibility (PR). A local authority cannot interfere with the exercise of parental responsibility against a person’s will unless it has obtained a court order [para 38].
- It is confusing to speak of parental “consent” to section 20. If a parent agrees to the accommodation, that parent is simply delegating PR to the local authority. This delegation must be “real and voluntary” and the best way to do this is to inform the parents fully of their rights under section 20, but the Supreme Court held that a delegation can be “real and voluntary” without being fully “informed” [para 39].
- Removing a child is different to stepping into the breach when a parent is not looking after a child. Active delegation from a parent who is not exercising PR is not required, but is of course subject to s.20(7) and (8) [para 40].
- Again subject to the safeguards in s.20(7) & (8), when a parent asks the local authority to accommodate the child: (a) if the circumstances fall under 20(1) there is a duty to do so; (b) if the circumstances fall under 20(4) there is a power to do so. While there is no requirement for “informed” consent, it is good practice that clear information about parents’ rights are provided [para 41].
- s.20(7) operates as a restriction on the powers and duties under s.20(1-5). Therefore, if there is an objection under s.20(7), the local authority will have neither the power nor duty to accommodate. If the authority considers the arrangements to be likely to cause significant harm, it can apply for an emergency protection order [paras 42-43].
- A parent with PR can remove the child at any time under s.20(8). There is no need to give notice. The only caveat to this is the right to take necessary steps to protect a person from being physically harmed raised. The local authority must either return the child or obtain the power to accommodate under an emergency protection order or by way of police protection [paras 44-46].
- S. 20(7) & (8) are qualified by s. 20(9) & (10) if there are orders in existence that restrict the exercise of PR; i.e. if there is a special guardianship order, or child arrangements order specifying with whom the child is to live, in force at the time or wardship is operating [para 47].
- Section 20 makes special provision for a child who is 16 or over. S.20(11) makes clear that a parent has no right to object if the child is willing to be accommodated [para 48].
- There is nothing in s.20 to limit the amount of time a child may be accommodated. While it may not be a breach of section 20 to accommodate a child for longer periods, it may be a breach of other duties and regulations or unreasonable in public law terms to do so [paras 49-52].
Having set out its general guidance, the court turned to the facts of the case. The court determined that the parents had not objected or unequivocally requested the children’s immediate return. While the bail conditions were not a reason to refuse return [para 57], the letters sent on behalf of the parents were not able to be read as requiring an immediate return and were instead trying to achieve a return as soon as possible on a collaborative basis [para 59]. Therefore, the breach as stated was not made out and the Human Rights Act claims ought to have been dismissed, although for different reasons than held in the Court of Appeal.
The court noted a caveat to this decision: questions may remain as to whether, although lawful, the local authority’s actions in any event amounted to proportional interference with article 8 rights. However, such was not fully explored in the courts below and was not raised as a point before the Supreme Court [para 62].
In summary, the court concluded that “there are circumstances in which a real and voluntary delegation of the exercise of parental responsibility is required for a local authority to accommodate a child under section 20, albeit not in every case (see para 40). Parents with parental responsibility always have a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child is to live). Section 20 gives local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it does. It is obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child is accommodated under section 20 or as soon as practicable thereafter.” [para 63].
Human Rights Act Claims: Costs
On 5th June 2018, Mr Justice Francis handed down judgement in Northamptonshire County Council & Anor v The Lord Chancellor (via the Legal Aid Agency)  EWHC 1628 Fam. No substantive judgement was needed as the parties had reached agreement following a clarification by the Legal Aid Agency (LAA) regarding to its position on recovering costs under the statutory charge. The judgement includes publication of the LAA’s position statementon the same, which is required reading for those undertaking HRA claims arising out of, or linked to, care proceedings.
This builds on the guidance provided by Mr Justice Keehan in H (A Minor) v Northamptonshire  EWHC 282 (Fam) and Mr Justice Cobb in Re CZ (Human Rights Claim: Costs)  EWFC 11 & Re W (Children) (Convention Rights Claim: Procedure): Practice Note  1 WLR 3451.While there can be no substitute for reading the judgement and position statement in full, the salient points are as follows:
- There ought to be attempts to resolve the claim without issuing proceedings.
- However, if contested proceedings are required, there ought to be a separate legal aid certificate for the HRA claim and proceedings ought to be issued under a separate Part 8 claim.
- An early confirmation should be sought from the LAA that the statutory charge will not apply, wherein the LAA will require undertakings that the parties will not and have not claimed HRA costs under the care proceedings legal aid certificate.
In short, the care proceedings and the HRA proceedings must be kept separate and distinct.