Local Authority Accommodation: Consent is not required!

The Court of Appeal has recently clarified the boundaries for local authority action in accommodating children without a legal order.

The President of the Family Division, Sir James Munby, has in recent years been vocal in judgments concerning the actions of Local Authorities when accommodating children under s.20 of the Children Act 1989. He has maintained that consent is required for such an action.  The origin of this position is to be found in his judgment R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin) in which he stated:

‘The law is perfectly clear but requires re-emphasis. Whatever the impression a casual reader might gain from reading some newspaper reports, no local authority and no social worker has any power to remove a child from its parent or, without the agreement of the parent, to take a child into care, unless they have first obtained an order from a family court authorising that step: …’ 

This was, over a series of judgments, translated into a requirement that “active consent” of the parents be obtained before such a step is taken. Guidance was provided in Coventry City Council v C [2013] EWHC 2190 (Fam) by Hedley J, stating this in terms. Statements to this effect were made by Sir James in his role as President of the Family Division, in judgments not relating to s.20 accommodation, in W (Children) [2014] EWCA Civ 1065 (25 July 2014) [34]; and in N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015) [163]. Such statements have had a marked effect in curtailing Local Authority willingness to use s.20 accommodation prior to initiation of care proceedings.

Given that these judgments were obiter dicta, it remained to be clarified whether consent was required from those holding parental responsibility before children could be accommodated under s.20. A suitable case, where s.20 accommodation was central, came before the Court of Appeal in the form of London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017) where Sir Brian Leveson took the opportunity to classify the detailed provisions in “N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112  as “guidance”, but not legally binding.

I do not think it is an accident that the President of the Queens Bench sat on this case. He appears, politely but firmly, to have stated that Sir James Munby’s views on s.20 are not the law. Relegating them to the realm of “guidance” means that social workers now have a framework to deal with issues of consent, but that no action will lie against the Local Authority for accommodation under s.20 without consent where a parent does not positively object.

This has implications for parents seeking to take Local Authority decisions to judicial review on this point. While consent is not required, the statute prohibits accommodation where parents object. Given this requirement, Children Act 1989 s.20(7)(b) necessarily implies, I submit, that in order for an accommodation by the Local Authority to be lawful, an opportunity to object must to be accorded to every available person holding parental responsibility.

As I see it, the distinction between consent and lack of objection may be illustrated by a situation where a parent is told by social workers that emergency powers will be sought if the child is not accommodated and, having had their rights explained, is given the choice to object to the accommodation or not. Assent would not be seen as consent (as the decision is taken under duress) but the accommodation would still be lawful under s.20. This should, of course, be followed by immediate initiation of proceedings or swift rehabilitation, and would only be appropriate in exceptional circumstances. If this is correct, Hackney v Williams substantially narrows the range of circumstances under which non-consenting parents may pursue local authorities under judicial review as a result of s.20 accommodation.

Judicial review would, I suggest, come into play at the point where the parent is either incapable of objecting or not given the chance to object, making the decision to accommodate under s.20 unlawful. Scenarios include:

– Parent lacking capacity (Coventry CC v C.B. [2012] EWHC 2191)

– Parent insufficiently informed of rights (Williams v LB Hackney [2015] EWHC 2629)

– Parent hospitalised due to mental ill health (Re AS (unlawful removal of child) [2015] EWFC B150)

– Contrary plan agreed, accommodation immediately post-birth (G v Nottingham CC [2008] EWHC 152)

– Parent unaware of accommodation (Medway Council v M&T [2015] EWFC B164)

– Parent subject to disproportionate force (E (A Child), Re [2013] EWFC 42)

– Parent lacking capacity (Newcastle CC v WM & Ors [2015] EWFC 775)

Drift following s.20 accommodation and prior to issuing proceedings would, I suggest, be a separate consideration.

Thanks go to @CelticKnotTweet for highlighting and discussing this judgment in his excellent blog https://celticknotblog.wordpress.com/2017/01/27/presedent-revisited-section-20-may-not-require-consent/  The majority of this post appeared as my comments to that blog, in dialogue with the author. Any errors in this post are, of course, entirely my responsibility.

Mixed Messages

Public service in the UK this winter is being battered by policy crosswinds. Threatened criminalisation of failure coupled with the undermining of practical regulation and removal of checks and balances are a triple blow to social work’s re-professionalisation.

Analogously, commenting on the collapse of a criminal case against an NHS trust and an anaesthetist following a death, John de Bono QC comments in The Times that;

‘[t]he strong public interest in maintaining high standards of care and accountability is better achieved through professional regulation and the availability of damages in the civil courts.’

Children’s social workers have been threatened by the Prime Minister with criminalisation for poor standards, howeer last month we learned that the professional regulator will again change, from the HCPC, the successor of the hapless General Social Care Council, to another (as yet unnamed) professional body. This comes after the College of Social Work, with its emphasis on standards, received its quietus last year (due to its ‘unsustainable’ financial model) after funding withdrawal. The fact that they received less support than Kids Company appears to bother nobody.

Now we learn that Practice Guidance has been published indicating that Guardians ad Litem in childcare proceedings must justify their attendance at routine hearings in public law Children Act 1989 care cases, as their role appears to duplicate that of the solicitor for the child. As the professionals most likely to take social workers to task over their analysis of family situations (as opposed to their procedural correctness or their evidential coherence) this is yet another appropriate, multiagency strand of accountability removed. If Cafcass is cut, does the whole family court system not bleed? As the Court of Appeal noted, Children’s Guardians are ‘pivotal to the whole scheme’ and hence best outcomes for children. ( R & Ors v Cafcass [2012] EWCA Civ 853 [23]) Meanwhile, the stigma of criminality (and hence unemployability) is dangled before ‘failing’ social workers pour encourager les autres and to appease a public schooled in increasingly reactionary response to perceived failure.

Never mind that the prisons are bursting or that the Justice Secretary has suggested using Town Halls as courts to save costs and address case numbers. John de Bono’s solution of fixed costs for prosecution, with respect, merely transfers the issue to civil rather than criminal courts where (except in the most egregious cases) regulatory justice, properly funded and supported, could and should operate instead. Thus  professional shortcomings may be efficiently addressed, doubly so as its free nature would ensure greater access to justice. This, however, can only operate to maximum effect within a system where all components ensure best practice and oversight and, crucially, where there is a sense of policy coherence to support an embattled profession.

 

Access To Justice: More for Less

The new Access to Justice Commission has cast people’s need for advice and representation in terms of ‘public entitlement’.  On his blog outlining the initial phase of its work, Sir Henry Brooke writes;

“There is widespread acceptance that there must be decent standards of health care or education provided by the State. The same should be true of access to justice.”

The next logical step, he asserts, is to consider whether state funding should target particular areas of necessary justice such as social welfare or domestic abuse, or whether in the alternative a basic standard of provision should be secured across a wider spectrum.

There are more parallels with health provision than merely expectation of consumer right to service. Healthcare providers, the victims of their own success, have created ever-greater demand. Financial and time pressures could be lifted from GPs and A&E departments by disseminating basic knowledge of first aid and encouraging public assumption of responsibility for low-level health needs, supported by greater public education and buttressed by assertive withdrawal of service for minor injuries and ailments and greater reliance on less qualified staff. Likewise, as the public’s awareness of the law’s power to assist them in more areas has grown, demand has increased beyond the system’s capacity to deliver. Access to justice could and should be broadened by clearer, more available information on legal self-help without the need for expensive professional representation, enabling scarce resources to be channelled to more complex cases befitting lawyers’ skill. Wholesale withdrawal of legal aid is clearly inappropriate, but litigants in person could be more widely supported in straightforward cases by clearer information and rights of audience granted to accredited lay representatives.

When reflecting upon public services, Sir Henry does not answer the begged question of whether ‘widespread acceptance’ extends to those holding the purse strings. Thankfully the commission has a personnel of wide and varied experience within and outside the legal field. Representation from health, local government and the voluntary sector is necessary to share experience of managing diminishing resource. In the current climate, the question was always going to be how the shrinking pie was sliced, not whether there would be second helpings. One glance at the current pattern of health and education funding makes that clear.

Keeping it brief

Welcome to Skeleton Arguments, a blog that seeks to strip the flesh from happenings in the legal world, serving them up in easily-gnawable morsels.

Inspiration for this blog has flowed from two legal teams experiencing the wrath of the judiciary; firstly in C&S Associates UK Ltd v Enterprise Insurance Company Plc [2016] EWHC 67 (Comm) where 80% costs of litigation were ordered against a party due to excessive bundles (29 files) also costs of preparing expert evidence due to commissioning and  inclusion of irrelevant material therein. Well do I remember the wise words of my Equity tutor, “Less is more”, when discussing the preparation of essays on proprietary estoppel. What is required, he reminded us, is the minimum necessary to do justice in the situation.

Likewise, the salutary words of Mr Justice Edwards-Stewart, presiding in Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd & Anor [2016] EWHC 76 (TCC) will be long remembered here. His afternote to the judgment includes the pithy reminder;

“… once a skeleton argument runs to more than about 25 pages it is usually because it is over discursive, making it difficult for the reader to identify the real issues and to follow the argument.”

Ensuring that posts subsequent on this blog do not exceed 70 pages, as did the argument of the unfortunate advocate in question, will not be difficult. Alongside the general wish to inform and sometimes to entertain, there are two self-imposed challenges in these articles; the brief is to be brief, and to the point.

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