Williams & Anor v London Borough of Hackney

A local authority cannot rely on Children Act 1989, section 20 to accommodate a child where a person with parental responsibility objects, or without that person's genuine, informed and fairly obtained consent. Submission in the face of asserted state authority is not consent. A parent’s distress does not necessarily remove capacity, but the authority must address capacity, explain the consequences and alternatives, and avoid compulsion in disguise.

Where consent is absent or withdrawn, the authority must return the child or obtain judicial authorisation. Continued separation without lawful authority breaches Article 8. The common-law negligence claim failed because the protective decisions involved the conflict of interest recognised in the higher authorities, and because the alleged economic loss was too remote and speculative.

The claimants’ eight children were removed from their home under police protection after allegations of physical abuse and serious concerns about the condition of the home. The police protection lasted no more than 72 hours. The parents then signed a purported safeguarding or section 20 agreement, but later instructed solicitors to withdraw any consent and request the children’s return.

The children remained in foster care until September 2007 without an emergency protection order, interim care order or other judicial authorisation. The parents claimed for misfeasance, negligence, breach of statutory duty, religious discrimination and breach of Article 8. The central issues were whether the section 20 consent was valid, whether the later retention was lawful, whether the pleaded causes of action were established, and what remedy was appropriate.

1. Section 20 consent. The court held that section 20 requires positive and informed parental consent, not merely the absence of objection or acquiescence. The parent must have capacity, understand the nature and consequences of consent and refusal, and give consent fairly and proportionately. The parents had capacity, but the information given was inadequate. The agreement did not explain its legal basis, the parents’ right to object or withdraw consent, or the available alternatives. Its threatening terms amounted to “compulsion in disguise”.
2. Withdrawal and judicial authorisation. The solicitors’ letters of 13 July 2007 expressly withdrew any consent. Their willingness to allow a short period for investigations was submission in the face of state power, not consent. The local authority therefore had no lawful authority to retain the children. It should have returned them or applied promptly for an emergency protection order or other appropriate order. The police bail condition did not supply that authority.
3. Negligence. The negligence claim was not sustainable. The protective decisions involved a continuing assessment of risk and a potential conflict between the interests of the children and their parents. The exception relied on by the claimants did not apply. In any event, the claimed loss of a speculative commercial opportunity was neither sufficiently proximate nor reasonably foreseeable.
4. Other claims. The officers honestly, though mistakenly, believed that lawful authority existed, so misfeasance was not established. The religious discrimination allegation lacked evidential foundation. The initial removal was lawful and proportionate, but retention after the expiry of police protection was not in accordance with law and therefore breached Article 8.
5. Limitation and remedy. It was equitable to extend the one-year period under section 7(5) of the Human Rights Act 1998, having regard to the Ombudsman process, the documentary evidence and the continuing prejudice. Judgment was entered for the claimants at £10,000 each.