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  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  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)  EWCA Civ 1065 (25 July 2014) ; and in N (Children : Adoption: Jurisdiction)  EWCA Civ 1112 (02 November 2015) . 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  EWCA Civ 26 (26 January 2017) where Sir Brian Leveson took the opportunity to classify the detailed provisions in “N (Children: Adoption: Jurisdiction)  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.  EWHC 2191)
– Parent insufficiently informed of rights (Williams v LB Hackney  EWHC 2629)
– Parent hospitalised due to mental ill health (Re AS (unlawful removal of child)  EWFC B150)
– Contrary plan agreed, accommodation immediately post-birth (G v Nottingham CC  EWHC 152)
– Parent unaware of accommodation (Medway Council v M&T  EWFC B164)
– Parent subject to disproportionate force (E (A Child), Re  EWFC 42)
– Parent lacking capacity (Newcastle CC v WM & Ors  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.