Williams and another v London Borough of Hackney

A local authority cannot use section 20 of the Children Act 1989 compulsorily. Removing a child from a parent who is caring for the child requires a real and voluntary delegation of parental responsibility or lawful compulsory authority. Fully informed consent is good practice, but is not invariably a condition of lawful accommodation.

Where the authority steps into the breach because nobody is caring or offering to care for the child, active parental consent is unnecessary. A parent who is willing and able to provide or arrange accommodation may object. A parent may also require an accommodated child’s return at any time, subject to specified court orders. An unequivocal request must be honoured unless the authority promptly obtains lawful protective authority. Prolonged accommodation is not itself contrary to section 20, although it may breach other statutory, public law or Convention duties.

The parents’ eight children entered local authority foster placements after the police exercised protection powers. When police protection expired, the local authority continued accommodating them under section 20 of the Children Act 1989. The parents signed safeguarding and accommodation documents, later sought the children’s return and corresponded through solicitors. The children returned home after approximately two months.

The High Court held that the parents had not given informed consent and awarded damages for an interference with family life which was not in accordance with law: [2015] EWHC 2629 (QB). The Court of Appeal allowed the authority’s appeal, holding that the bail conditions prevented the parents from providing accommodation and that informed consent was not a universal legal requirement: [2017] EWCA Civ 26.

The issue before the Supreme Court was whether section 20 supplied a lawful basis for the continued accommodation after police protection expired.

1. The appeal was dismissed unanimously. Lady Hale, with whom Lord Kerr, Lord Wilson, Lord Carnwath and Lady Black agreed, held that the children’s continued accommodation had a lawful basis under section 20 of the Children Act 1989. The parents’ Human Rights Act claims therefore failed, although for reasons differing from those of the Court of Appeal.

2. Parental responsibility includes the fundamental right to look after and bring up one’s child. A local authority cannot remove a child from a parent who is caring for the child and wishes to continue doing so unless it obtains a court order. A parent may nevertheless delegate the exercise of parental responsibility. That delegation must be real and voluntary, but need not invariably be fully informed. Helpless submission to asserted state authority is not a voluntary delegation.

3. Active parental consent is unnecessary where the authority steps into the breach because the parent is not caring or offering to care for the child. Section 20 may then impose a duty, or confer a power, to provide accommodation. That duty or power remains subject to subsections (7)–(11).

4. Section 20(7) prevents accommodation where a person with parental responsibility objects and is willing and able personally to provide accommodation or arrange it. The provision does not permit the authority to adjudicate upon the suitability of the parent’s proposal. If the proposal creates a risk of significant harm, the authority should seek compulsory protective authority.

5. Section 20(8) permits a person with parental responsibility to remove the child at any time without notice. An unequivocal request for immediate or timed return must be honoured. The authority must return the child or obtain lawful authority through police protection or an emergency protection order. Reasonable immediate action may still be taken under section 3(5) to prevent physical harm.

6. On the facts, the solicitors’ letters did not constitute an unequivocal request for immediate return. They demonstrated a collaborative arrangement under which the parents continued delegating accommodation to the authority. The bail conditions did not enlarge the authority’s statutory powers, but the parents never unequivocally withdrew that delegation.

7. Section 20 places no express time limit on accommodation. Prolonged accommodation without care proceedings is not, by duration alone, a breach of section 20. It may nevertheless breach other statutory duties, be unreasonable in public law, or violate article 8. Authorities must not employ section 20 coercively and should give parents clear oral and written information about their rights and the authority’s responsibilities.

1. United Kingdom Supreme Court: Dismissed the parents’ appeal. It upheld the conclusion that the accommodation was lawful, although for reasons differing from those of the Court of Appeal: [2018] UKSC 37.

2. Court of Appeal: Allowed the local authority’s appeal, holding that section 20 supplied a lawful basis for the accommodation: [2017] EWCA Civ 26; [2017] 3 WLR 59.

3. High Court: Dismissed the negligence, misfeasance and discrimination claims, but upheld the article 8 claim and awarded each parent £10,000: [2015] EWHC 2629 (QB); [2015] All ER (D) 99 (Sep).