Earlier this month, the Court of Appeal reached an important decision which clarified the use of section 20 of the Children Act 1989 as a long-term care solution in circumstances where there is ‘full collaboration’ between the parent/s and the local authority, and where the child’s needs clearly require this. Reflecting on the interplay between voluntary accommodation under section 20 and the local authority assuming parental responsibility of a child under section 31 (through the family court making a care order), including by reference to crucial case law, the judgment will be of relevance to anyone supporting children in need and children in care.
Court of Appeal confirms use of section 20 of the Children Act 1989 as a long-term care option
This Court of Appeal judgment concerns the interplay between care orders, provided by section 31 of the Children Act 1989, and the voluntary accommodation of children in need, which falls under section 20 of the Children Act 1989. Specifically, the Court of Appeal was asked to decide whether it’s possible and, if so, in what circumstances, for a court to decline to make an order under section 31 despite the statutory criteria being met, in order to comply with the ‘no order’ principle set out in section 1(5) of the Children Act 1989.
The question arose because care orders were disputed by two families who wanted their children to be looked after under section 20 instead. The first appeal concerned a 9 year-old boy, referred to as ‘S’, and the second a 15 year-old girl, referred to as ‘W’.
Background
S’s situation: In early 2021, S’s mother approached her local authority asking for S (then aged 7) to be accommodated as she was “struggling to cope” with his behaviour.
S has autism spectrum disorder and attention deficit hyperactivity disorder. His parents separated in 2017 following S’s father attacking his mother. In response to S’s mother’s request, the local authority increased support for S and his mother and placed S and his younger brother on a child protection plan. The situation worsened and S moved to a residential unit in May 2021 where he settled well and was “making excellent progress”.
S’s mother told the local authority she could not envisage caring for S at home in the future due to his needs, but she did not want care proceedings to be pursued. S’s father signed an agreement for S to be accommodated and he did not seek to withdraw it or challenge S’s living arrangements in any way after that point. Despite this, the local authority issued care proceedings in June 2021 because it did not consider section 20 “an effective or appropriate mechanism for children requiring long term care”, security or stability. During the proceedings, an independent clinical psychologist assessed S as having significant emotional and behavioural needs which would be unlikely to be met by a lone carer. The judge made S the subject of a care order on the basis that S was beyond parental control and after concluding that an order was necessary because of the risk of S’s father disrupting the section 20 arrangement in the future.
W’s situation: W was adopted in 2008 when she was aged one. W has complex needs, including autism spectrum disorder, attention deficit hyperactivity disorder, alcohol related neurodevelopmental disorder, foetal alcohol spectrum disorder, attachment disorder and bladder bowel dysfunction. In adolescence, W’s behaviour began to deteriorate and included physical aggression, especially towards her mother. In 2020, W was enrolled in a residential school and, the following year, went to live with a foster family under a section 20 agreement. W was settled and happy there, and her parents and foster carers “have worked together with considerable success and greatly to W’s benefit”.
The local authority applied for a care order based on W being beyond parental control and because it was concerned that that W’s behaviour was likely to deteriorate in the future and the local authority would need parental responsibility. W’s parents objected to the making of a care order wishing instead to “parent from a distance” under a continued section 20 arrangement.
Grounds for appeal
There were several grounds for appeal in both S’s and W’s situation (see paragraphs 23 and 37 of the judgment for full details), including the following:
- It was an error to conclude that the proper use and purpose of section 20 of the Children Act 1989 is for short-term and temporary accommodation only because the Children Act 1989 does not restrict or qualify its use in this way.
- Judicial guidance would aid future decisions in similar circumstances and clarify whether the Children Act 1989’s ‘no order’ principle means voluntary accommodation should be given preference over a care order.
The legal framework
- Children Act 1989 (primary legislation)
Care orders
Section 31 of the Children Act 1989 (Care and supervision) gives the family court the power to make a care order (or a supervision order) with respect to a child under the age of 17 if two conditions (‘threshold criteria’) are met:
a) The court is satisfied that the child is suffering, or is likely to suffer, significant harm; AND
b) The harm, or likelihood of harm, is attributable to
– inadequate care being given to the child (i.e., care is not what would be reasonably expected of a parent) OR
– the child being “beyond parental control”.
If a care order is made then, for the duration of that order, the local authority designated in the order to look after the child has parental responsibility for that child (section 33(3)(a)) and has the power to determine the extent to which other persons with parental responsibility can exercise parental responsibility for the child (section 33(3)(b)). This means that local authorities have the power to limit the use of parental responsibility by others, including the child’s parents. This can involve, for instance, overriding parental objections to a specific decision (unless the law states otherwise). This power is not absolute, however, and section 33(4) prohibits local authorities from limiting the exercise of parental responsibility by others unless it is necessary to safeguard or promote the child’s welfare. (Other exclusions also apply, such as changing a child’s name or their religion, taking them out of the country or consenting to adoption – see section 33(6)-(7)).
In deciding whether to make a care order, the court must: – Follow the paramountcy principle, i.e., the child’s welfare must (‘shall’) be the court’s paramount consideration (section 1(1) of the Children Act 1989). – Have regard to the welfare checklist in section 1(3) of the Children Act 1989. – Carry out a proportionality assessment, i.e., decide if a care order is proportionate to the needs of the individual situation (see lower down for more information about relevant case law). – Follow the ‘no order’ principle set out in section 1(5) of the Children Act 1989, i.e., “Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all”.
Support for children in need and statutory duty to reduce the need for care proceedings Section 17 of the Children Act 1989 defines the criteria that determine whether a child is ‘in need’ and places a general duty on local authorities to safeguard and promote the welfare of children in need in their area, and to promote their upbringing by their families. The services provided by a local authority under Section 17 can include providing accommodation and assistance in kind or in cash, and assistance can entail provision of services to the child’s family if it is provided with a view to safeguarding or promoting the child’s welfare. Local authorities must also facilitate the provision of relevant services by others, including voluntary organisations. Importantly, Schedule 2 paragraph 7(a)(i) of the Children Act 1989 requires local authorities to take all reasonable steps to reduce the need to bring care (or supervision) proceedings.
Provision of accommodation for children in need / voluntary accommodation under section 20
Section 20(1) of the Children Act 1989 places a duty on local authorities to provide accommodation for any child in need in their area who appears to require accommodation because there is no person with parental responsibility for the child, because the child is lost or abandoned or because the person caring for the child is prevented from providing suitable accommodation or care.
Section 20(4) additionally gives local authorities the power (“may”) to provide accommodation for any child within their area even if a person who has parental responsibility is able to do so if the local authority considers that this would safeguard or promote the child’s welfare.
- Case law
Case law relating to the use of section 20 of the Children Act 1989
The Court of Appeal judgment references a 2018 Supreme Court judgment, Williams & Anor v London Borough of Hackney [2018] UKSC 37, in which Lady Hale considered the limits of local authorities’ powers and duties to provide accommodation for children in need. In her judgment, Lady Hale referenced the government’s White Paper, The Law on Child Care and Family Services (1987), which preceded the Children Act 1989. This said:
“…the provision of a service by the local authority to enable a child who is not under a care order to be cared for away from home should be seen in a wider context and as part of the range of services a local authority can offer to parents and families in need of help with the care of their children. Such a service should, in appropriate circumstances, be seen as a positive response to the needs of families and not as a mark of failure either on the part of the family or those professionals and others working to support them. An essential characteristic of this service should be its voluntary character, that is it should be based clearly on continuing parental agreement and operate as far as possible on a basis of partnership and co-operation between the local authority and parents”. [para 15]
The duration of arrangements under section 20 and the corresponding duties are also addressed in the Supreme Court judgment:
“…there is nothing in section 20 to place a limit on the length of time for which a child may be accommodated. However, local authorities have a variety of duties towards the children whom they are accommodating. Their general duties towards looked after children in section 22 of the 1989 Act include a duty to safeguard and promote their welfare, in consultation with both the children and their parents. This is reinforced by the Care Planning, Placement and Case Review (England) Regulations 2010…which require local authorities to assess a child’s “needs for services to achieve or maintain a reasonable standard of health or development” and prepare a care plan for her, to be agreed with the parents if practicable… The care plan has to record, inter alia, the arrangements made to meet the child’s needs and the long term plan for (their) upbringing…”. [para 49]
Citing a different, relevant judgment, CA (A Baby) [2012] EWHC 2190 (Fam), Lady Hale also drew attention to the importance of working in partnership with parents:
“The emphasis in Part III (of the Children Act 1989) is on partnership … any attempt to restrict the use of section 20 runs the risk both of undermining the partnership element in Part III and of encroaching on a parent’s right to exercise parental responsibility in any way they see fit to promote the welfare of their child.” [paras 25-26]
Case law relating to the proportionality of care orders
In the matter of H-W (Children) [2022] UKSC 17 considered the proportionality of a care order:
“…a judge considering a care order has an obligation not to act incompatibly with the article 8 [of the European Convention on Human Rights] rights involved. In truth, the obligation under article 8 ECHR, …does no more than re-state the longstanding proposition of English childcare law that the aim must be to make the least interventionist possible order…” [para 45]
The Court of Appeal’s decision
In relation to S’s situation, the Court of Appeal concluded that the making of a care order was not proportionate to S’s needs and that too much weight was placed on the potential risk of S’s father disrupting arrangements in the future. Moreover, there was no evidence to justify restricting S’s mother’s exercise of parental responsibility, which would happen if a care order remained in place.
In relation to W’s situation, the Court of Appeal concluded that the decision to make a care order “was heavily influenced by (the Family Court’s judge’s) belief that section 20 orders should only be used as a short-term measure”, which tipped the proportionality assessment in favour of the making of a care order. Based on the strong, collaborative and “tried and tested” relationship between W’s parents and her foster carers, there was no basis to speculate that future difficulties with W’s behaviour would “necessitate the local authority having parental responsibility in order for her behaviour to be managed”.
Crucially, the Court of Appeal pointed to the statutory requirement set out in The Care Planning, Placement and Case Review (England) Regulations 2010 to review the child’s case at intervals of not more than six months (regulation 33(2)) regardless of whether the placement is by way of a care order or under section 20. Additionally, the 2010 Regulations give the child’s independent reviewing officer the power to request a review before six months (regulation 33(3)(a)). Finally, there are prescribed considerations, set out in Schedule 7, to which the local authority must have regard when reviewing the child’s case and which apply equally to section 20 placements as to placements under a care order.
Consequently, the Court of Appeal decided that both S and W should remain in their respective local authorities’ long-term care placements under section 20 of the Children Act 1989.
You can read the full judgment here: [2023] EWCA Civ 1
Learn more about: The scope of local authorities’ parental responsibility for children in care: January 2022 issue. Local authorities’ duties towards children in need: February 2021 issue (bottom of the page). Section 20 duties: - January 2021 issue (landmark House of Lords judgment); - February 2022 issue (application of section 20 to homeless 16 and 17 year-olds); - November 2021 issue (application of section 20 to unaccompanied children).