Use of section 20 Children Act 1989 for the voluntary accommodation of children has long been subject to controversy. Critcisms of practice have ranged from alleged coercion of parents into agreeing and lack of fully informed consent, through to allowing children to drift in the care system with no court oversight. We published an updated guidance note on s 20 last year, which mainly focuses on situations where parents want to understand the implications of agreeing to s 20 – or not.

The provisions of s 20 in Wales are now found in section 76 Socal Services and Wellbeing (Wales) Act 2014. The same principles apply.

A new judgment from the Court of Appeal deals with the position where it is the parents who want a s 20 placement to continue long term, but the local authority feel they need to appy for a care order. It is helpful in clarifying that in certain circumstances, s 20 can be more than a temporary arrangement and that a local authority should not feel under pressure to issue proceedings where s 20 is meeting the child’s needs.

In Re S (A Child) and Re W (A Child) (s 20 Accommodation) [2023] EWCA Civ 1, King LJ, Arnold LJ and Warby LJ heard two appeals from Dartford and Croydon Family Courts respectively. A total of eight barristers appeared before them. A case note from Coram Chambers is published here.

S is aged nine and W is aged 14. S has a younger brother who has serious disabilities and S had developed behavioural problems. W (adopted at one year old) is herself disabled, with a complex psychological and physical diagnosis. S’s mother and W’s parents had sought local authority help when the children became too difficult for them to care for without support. Each child was now in a successful placement agreed under s 20 but eventually both S and W had been made subject to care orders under section 31.

S’s mother appealed against the care order on the following grounds:

• The judge wrongly concluded that a section 31 CA 1989 order was necessary and proportionate on the basis that there was a ‘significant risk’ that S’s father may withdraw his support for section 20 accommodation in the future. S’s father has been difficult to contact and communicate with and there have been contact difficulties in the past.
• The judge erred* when stating that the issue was ‘do the local authority need to share parental responsibility?’.
• The judge attached excessive weight to the certainty that would be provided by a care order. He failed to express a view as to whether section 20 CA 1989 orders could be used for long term accommodation.
• Judicial guidance would be of benefit as to the test to be applied where it is submitted that the section 1(5) CA 1989 ‘no order’ principle should be adopted in preference to section 31. [para 23]

W’s parents appealed on the following grounds:

• The judge erred* in determining that the proper use and purpose of section 20 CA 1989 is for short-term and temporary accommodation when the provisions of the CA 1989 do not restrict or qualify the use of section 20 CA 1989 accommodation in such a way.
• Having determined the above, the judge erred in attaching substantial weight and reliance on that determination as the primary reason for making a care order.
• The judge erred in considering that she was able to influence or fetter the local authority’s exercise of its parental responsibility during the care order or, in the alternative, placed weight on this consideration as part of her welfare and decision-making evaluation.
• The judge erred in concluding that the no order principle and least interventionist approach was rebutted in the circumstances of this case and in failing to identify, or identify properly, the welfare benefits to the child of her parents retaining sole parental responsibility. [para 37]

* ‘erred’ means that the judge was wrong about the law

At the date of the hearing, S had been settled in a residential placment for 18 months and had regular, positive contact with both parents. He had been assessed as requiring a ‘specialist residential unit with a high staff-child ratio in order to reduce the compassion fatigue that would be associated with caring for a child with such complex needs’. [para 11] However the local authority were concerned that because she could not ‘commit’ to S returning home, they needed to apply for an order.

With regard to W, King LJ explained that her placement was intended to be long term because she was settled and happy there. She said, ‘The foster carers have the day-to-day responsibility for W. Over the ensuing 14 months, W’s parents and the foster carers have worked together with considerable success and greatly to W’s benefit.’ [para 28]. However the local authority had applied for a care order, whereas W’s parents wanted W to remain in s 20 care. They wanted to continue to ‘parent at a distance’.

All the evidence in this judgment describes S’s mother and W’s parents as having made enormous efforts to cope with impossible circumstances, feeling guilty about having to ask for help, and demonstrating continuous support for their children.

The court analysed the distinctions between s 20 and s 31. King LJ went on to consider guidance on the use of s 20.

Case law

Consdering Williams v Hackney LBC [2018] UKSC 37,  H-W (Children), Re [2022] UKSC 17, and Worcestershire CC v AA (A Child) [2019] EWHC 1855 (Fam), the Court confirmed that a s.20 order addressed the needs of parents, who were not at fault, to secure longer term support and services by way of accommodation without the need for a s 31 order, while they worked in partnership with the local authority, 

Meeting the threshold criteria for a care or supervsion order under s 31 did not automatically mean that such an order would be made. The court would also consider the section 1(5) ‘no order’ principle.

Public Law Working Group practice guidance

This guidance, issued in March 2021, stated that there was no fixed time limit on the use of s 20. There had been earlier case law that suggested s 20 should not be allowed to continue long term, that had led to a decline in its use and may have led to an increase in unnecessary care proceedings.

It is perhaps surprising that the PLWG guidance had not been given more weight in the family court judgments that were being appealed, as it has been in place for nearly two years.

Decision

The Court decided that making a care order with regard to S had been disproportionate. There was no real risk of S’s father withdrawing his consent or any other justification for restricting S’s mother’s parental responsibility. In W’s case, the judge had been too heavily influenced by the idea that s 20 was only suitable in the short term. There was no evidence that W’s parents would stop cooperating with the local authority but if they did, orders could be applied for in the future. King LJ concluded:

… It follows therefore that both of these children will remain in the long-term placements provided by the respective local authorities under section 20.

I would simply conclude by saying that each of these two cases must be viewed in the context in which they have come before this court, that is to say in relation to children who are settled in long-term placements which are meeting their respective needs in circumstances where both the placements and the accompanying care plans are supported by the parents. As the judge in Re W observed, no court has hitherto considered the use of a section 20 order in this type of situation and it is hoped that this appeal will have served to fill that gap… [paras 83-84]

Added 20 January 2023: there’s quite a lengthy report on the judgment in Local Government Lawyer.

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