S (A Child) and W (A Child) (s 20 Accommodation), Re

Section 20 accommodation has no statutory time limit and may be used for a longer or long-term period where it remains voluntary, its purpose is considered, and mandatory reviews are carried out. The fact that the threshold for a care order is satisfied does not require the court to make one. The court must apply the welfare checklist, the section 1(5) no-order principle and proportionality, making the least interventionist order justified by the evidence. A care order is disproportionate where the asserted need for statutory parental responsibility rests on speculative future difficulties or a risk that does not materially threaten the child’s placement.

These were conjoined appeals from care orders made by the Croydon Family Court and the Family Court at Dartford. In Re S, the child had remained settled in residential accommodation under section 20 of the Children Act 1989, with the parents supporting the placement. In Re W, the child had remained settled with foster carers under a collaborative arrangement supported by her parents. In both cases the threshold under section 31 was accepted on the basis that the child was beyond parental control, and agreed care plans provided for long-term placements.

The central issues were whether section 20 accommodation could continue on a long-term basis and whether care orders were necessary and proportionate despite the agreed arrangements.

1. The appeals against the care orders were allowed. Both children were to remain in their long-term placements under section 20 of the Children Act 1989. The threshold findings were not challenged, but satisfaction of the threshold did not automatically require a care order.

2. Section 20 is a voluntary, partnership-based service. The statute contains no limit on the duration of accommodation. Longer-term accommodation may therefore be appropriate where proper consideration is given to its purpose and the statutory reviews are conducted. The approach was consistent with Williams v Hackney LBC [2018] UKSC 37 and the Public Law Working Group guidance. The guidance was persuasive only and could not alter the clear statutory scheme.

3. A care order is more interventionist because it gives the local authority parental responsibility and power to restrict the parents’ exercise of it. Even where section 31 threshold criteria are met, the court must apply the welfare checklist, the section 1(5) no-order principle and the requirement to make the least interventionist proportionate order. The assessment must address both the nature and likelihood of the risk and the consequence if harm occurred, as explained in In the matter of H-W (Children) [2022] UKSC 1451.

4. In Re S, the judge materially overstated the risk that the father would withdraw consent or disrupt the placement. The evidence showed, at most, a risk of disengagement from contact. It did not justify restricting the mother’s parental responsibility or making a care order. Section 20(9)(a) could also have addressed the identified concern if a child arrangements order had been made in the mother’s favour.

5. In Re W, the judge erred by treating section 20 as essentially short-term and by speculating that future behavioural difficulties would require the local authority to have statutory parental responsibility. The parents’ collaboration with the foster carers, delegated parental responsibility and the review regime provided substantial safeguards. If cooperation failed, the local authority could issue proceedings and seek an interim care order.

6. The appeal concerning the recitals in Re W was dismissed on that ground. Recitals should not dictate or fetter the local authority’s exercise of parental responsibility after a care order. They either repeat existing statutory or regulatory duties or risk maintaining judicial control. The court endorsed the relevant principle in In Re T (A Child) (Care Proceedings: Court’s Function) [2018] EWCA Civ 650.

• Court of Appeal (Civil Division): [2023] EWCA Civ 1. Both appeals against the care orders were allowed. The children remained in long-term section 20 placements.
• Croydon Family Court: HHJ Atkins made a care order for S on 24 June 2022.
• Family Court at Dartford: HHJ Coffey made a care order for W on 16 June 2022.