Case Update – Williams v London Borough of Hackney06.09.18
Ashley Lord summarises the recent Judgment in the appeal of Williams v London Borough of Hackney which involving the return of children under s.20 of the Children Act 1989 where the Local Authority perceived there were obstacles in doing so.
Williams v London Borough of Hackney
Court of Appeal: Lady Hale, President; Lord Kerr; Lord Wilson; Lord Carnwath; Lady Black
The focus of this appeal was on the limits of local authority powers and duties to provide accommodation of children under s.20 of the Children Act 1989 and specifically what local authorities are to do if parents seek the return of their accommodated children but a local authority perceive there are obstacles in doing so.
The family in this case became known to the Local Authority following the exercise of police powers of protection in respect of eight children on 05 July 2007. One of the children had been caught shoplifting. He had explained that he had no money for lunch and that his father hit him. Upon a social worker attending at the family home it became clear that the home was unhygienic and was unfit for habitation by children. The parents were arrested, interviewed and ultimately bailed with a bail condition being that they should have no unsupervised contact with any of their children so as to prevent possible interference with possible victims of crime.
On 06 July 2007 a safeguarding agreement was signed which, in part, had the parents agreeing to the children remaining in foster care for the present time. The Court later found that the agreement of the parents had not be obtained fairly and their agreement had not been informed.
Following expiration of the period of police protection the parents went to the council offices on 09 July 2007 and asked for their children to be returned to them. They were told that they could not take their children home. The parents engaged legal representatives who wrote to the Local Authority indicating that Mr Williams was giving formal notice of his withdrawal of consent to accommodation of the children under s.20.
The Local Authority held a meeting on 16 July 2007. A visit to the family home on 18 July 2018 where it was noted that improvements to the home had been made and that it was clean. A further meeting took place on 23 July 2007 where the local authority noted the obstacle of the bail conditions preventing unsupervised contact with the children meant that despite the local authority having decided that they would not be bringing care proceedings, they could not provide a date for children to be returne. A child protection case conference was scheduled for 31 July 2007.
The police refused to vary the bail conditions. Bail was continued until 17 August 2007 on the same conditions. The Local Authority were invited to write a letter of support to the police in respect of varying the bail conditions, but the Local Authority took the view that it was for the parents to apply for the variation. Eventually on 06 September 2007 a senior officer of the Local Authority telephoned the police and arranged for the bail conditions to be varied with a view to the children returning home. The children returned home on 11 September 2007 following more than two months in foster homes.
At first instance the Court upheld the parent’s complaint for a breach of article 8 of the ECHR on the basis that the interference in the family life of the parents and the children was not in accordance with eh law because there was no lawful basis for the accommodation of the children.
On appeal the Court of Appeal held that there was a lawful basis for accommodation and allowed the Local Authority’s appeal.
The Supreme Court highlighted that as a matter of good practice a safeguarding agreement should be drafted in all cases, whether s.20 accommodation follows compulsory emergency measures, or whether s.20 is initial mechanism by which the children are accommodated. Further general guidance is given at paragraph 55 of the judgment.
The Supreme Court concluded that the exercise of s.20 powers was in essence a delegation of parental responsibility by parents for the time being and section 20(8) permitted parents to withdraw that delegation. The Court described the use of the term “parental consent” as potentially confusing.
The Supreme Court further analysed the effect of s.20 and concluded that in circumstances where parents exercise their rights under s.20(8) by unequivocally requesting the return of children to their care, continued accommodation by a local authority under s.20 will be unlawful and other measures must be pursued by a local authority in order to continue to accommodate the children; measures may include the instigation of care proceedings where EPO’s or ICO’s are sought or, alternatively police powers of protection may be exercised. At paragraph 45 the Court said this:
“It follows that, if a parent unequivocally requires the return of the child, the local authority have neither the power nor the duty to continue to accommodate the child and must either return the child in accordance with that requirement or obtain the power to continue to look after the child…”
The effect of the decision of the Supreme Court in this case is that if parents make an unequivocal request for the return of a child under s.20(8), irrespective of the obstacles a Local Authority must return the child or seek power through the Family Court to continue to accommodate.
Finally, the Supreme Court clarified that it is not a breach of s.20 to keep a child in accommodation for a long period, but long-term accommodation under s.20 may cause a Local Authority to be in breach of other duties under the Act and Regulations, or indeed it may be considered unreasonable in public law terms to do so.