London Borough of Hackney v Williams & Anor

Section 20 of the Children Act 1989 does not require positive parental consent as a universal condition of accommodation. The statutory questions are whether the person caring for the child is prevented, for whatever reason, from providing suitable accommodation or care, and whether a parent with parental responsibility is willing and able to provide or arrange accommodation and objects. Lawful bail conditions may make a parent both prevented from caring and unable to object. Family-court guidance on obtaining section 20 agreements remains good practice, but failure to follow it alone is not a breach of statute or an actionable wrong. A parent retains the statutory right to remove a child from voluntary accommodation at any time. The appeal was allowed and the Article 8 damages award set aside.

Hackney took eight children into police protection after concerns about physical discipline, neglect and the condition of the family home. Following expiry of the 72-hour period, the children remained in foster care under section 20 of the Children Act 1989. The parents signed a safeguarding agreement but later withdrew consent. The children remained in care until police bail conditions preventing unsupervised contact were varied.

After a six-day trial, the High Court dismissed claims in misfeasance, discrimination and negligence but found unlawful retention, breach of Article 8 and breach of statutory duty. It awarded each parent £10,000. Hackney appealed on the legality of the section 20 accommodation, limitation and damages. The central issue was whether positive parental consent was legally required in the circumstances.

1. Appeal allowed. The High Court had erred in treating informed positive parental consent as a statutory prerequisite to continued accommodation under section 20 of the Children Act 1989. The section belongs to a voluntary part of the statutory scheme, but its wording is controlling.
2. Section 20(1)(c) applied because, after the expiry of police protection, the parents were prevented by lawful bail conditions from providing suitable accommodation or care. The family home was also initially unsuitable. Under section 20(7), a parent could object only if willing and able to provide or arrange accommodation. The parents were not legally able to accommodate the children while the bail conditions remained in force. Their formal consent was therefore not necessary to make the accommodation lawful.
3. Section 20(8) preserves a parent’s right to remove a child from voluntary accommodation at any time and without notice. If a local authority considers that removal would expose the child to significant harm, it must seek compulsory powers, such as an emergency protection order under section 44 or an interim care order in care proceedings.
4. The observations in R (G) v Nottingham City Council and Nottingham University Hospitals NHS Trust [2008] EWHC 400 (Admin), Coventry City Council v C [2013] EWHC 2190 (Fam), Re W (Children) [2014] EWCA Civ 1065 and Re N (Adoption: Jurisdiction) [2015] EWCA 1112 provide important good-practice guidance. They do not convert positive consent, informed consent or fairness requirements into additional statutory conditions applicable in every case. Failure to follow the guidance alone does not found a claim for damages or judicial review.
5. Because the retention was authorised by the statutory scheme and the lawful bail conditions, the interference with family life was in accordance with law and necessary for the protection of health or the rights and freedoms of others. There was no breach of Article 8 or section 6 of the Human Rights Act 1998. The limitation and damages issues were consequently academic, although the court expressed provisional reservations about extending time and about the level of damages.

1. Court of Appeal (Civil Division): On 26 January 2017, the appeal was allowed. The finding of unlawful retention, breach of Article 8 and entitlement to damages was reversed.
2. High Court of Justice, Queen’s Bench Division: On 17 September 2015, a deputy High Court judge dismissed the claims in misfeasance, discrimination and negligence but found breach of statutory duty and Article 8, awarding £10,000 to each parent.