Section 20 of the Children Act 1989 concerns the LA’s duty to provide a child with somewhere to live when he or she has no home, or no safe home. It ensures a child is provided for when no-one holds parental responsibility; or the child has been lost or abandoned; or the person who has been caring for the child can’t provide a suitable home, for whatever reason and regardless of whether this is short term or long term problem.

We most commonly encounter s20 when parents are asked by the LA to consent to “voluntary” accommodation. Perhaps the family are struggling to cope; or need a break; in which case s20 provides a good mechanism for children to be cared for whilst problems are solved, without the pressure of court proceedings.

But in most cases, how voluntary is “voluntary”? We all know the reality – parents face the pressure of being told that refusal will trigger proceedings. Perhaps they struggle to understand what s20 really means, and the implications of agreeing to it. In advance of the PLO process, there’s no funding for access to legal advice, so parents face a crucial decision without anyone “in their corner”. And most parents would be forgiven for thinking that doing things by agreement, and not rocking the boat, will result in the best outcome – right?

Wrong. We must all have experienced cases where a glimpse at the chronology causes a sharp intake of breath – what on earth was going on for all those months? Often, nothing apparently useful. Perhaps the urgency of the case is met by the child now being (physically) safe. Perhaps change in social work personnel gets in the way of decent planning. Perhaps the workload in the team is just too great and slippage is inevitable. All the while, the parents lack legal advice to know how best to act. The child has no Children’s Guardian to safeguard their position, and the IRO review process is no real substitute.

Why does delay matter so much? Attachments between parent and child begin to be compromised. Parents lose touch with their children’s development. Evidence, which may be crucial to the eventual resolution of issues in court, disappears or becomes stale. Families are needlessly kept apart, or children delayed in achieving permanence where each day makes a difference to their long term outcomes. And on another level, it matters because it’s an abrogation of the state’s responsibility to some of its most vulnerable citizens to allow needless harm to flow from administrative lapse or failure to make decisions.

There’s been a feeling that the 26 week timetable for proceedings may have encouraged use of s20 as a “holding mechanism”. At 31^st March 2015, of 69,540 looked after children, 19,850 were voluntarily accommodated. According to the Government’s statistics, the number and percentage has “increased steadily” since 2013.

Thankfully, none of this has escaped the attention of the judiciary. There has been a spate of case law concerning the misuse and abuse of s20 – everything from an LA exercising “compulsion in disguise” in Williams & Anor v London Borough of Hackney [2015] EWHC 2629 (QB) to an “almost comical” recording of an agreement under s20 in Re W (Children) [2014] EWCA Civ 1065. There has equally been increased focus the award of damages for breach of human rights; examples include Northamptonshire County Council v AS and Ors [2015] EWHC 199 (Fam) regarding the serious abuse of s20 where a newborn remained accommodated for 5 ½ months before proceedings were initiated. According to Keehan J, “I cannot conceive of circumstances where it would be appropriate to use those provisions to remove a very young baby from the care of its mother, save in the most exceptional of circumstances and where the removal is intended to be for a matter of days at most“, and Medway Council v M &T 2015, where HHJ Lazarus awarded mother and child each £20,000 damages for breach of Article 8 rights. This careful judgment includes a useful table of case law relating to the award of damages for such breaches.

And now, the gimlet eye of the President of the Family Division is on all local authorities. In N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112. Whilst the judgment also pertains to issues concerning adoptions with a foreign element, paragraphs 157-171 which focus on the misuse and abuse of s20 are essential reading.  According to Munby P “There is, I fear, far too much misuse and abuse of section 20 and this can no longer be tolerated” and “steps must be taken as a matter of urgency to ensure that there is no repetition ever again“.

In this case there was a seven month delay between the children being placed in accordance with s20 and proceedings being issued. Whilst Munby P endorsed the role of s20 as a short term measure in some cases, he deplored its use for this duration as a prelude to care proceedings as ‘wholly unacceptable’.

In a castigating judgment, he maps his way through recent case law on the topic of misuse of s20. He identifies four particular problems that arise, often in combination:

1. Failure of the LA to obtain fully and properly informed consent from the parent(s) at the outset. Munby J endorses the guidance of Hedley J in Coventry City Council v C, B, CA & CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987 at para 46, which addresses the individual social worker’s personal duty to be satisfied that the parent(s) act with capacity, and give properly informed consent. The social worker must consider the issue of capacity, the physical and psychological state of the parent(s), their understanding of what is proposed, their access to advice and support, whether removal is necessary to ensure safety and whether it would be fairer for the matter to be dealt with by court order rather than agreement. To these considerations, Munby P adds concern for parents who are not fluent in English and the need to ensure proper understanding;
2. Serious deficiencies in the drafting of s20 agreements – poor choice of language, and lack of clarity;
3. Arrangements under section 20 being allowed to carry on for far too long; and
4. The apparent reluctance of LA’s to return a child immediately upon a withdrawal of parental consent. Failure to do so is unlawful, and according to Munby P, perhaps even criminal.

At paragraph 170, as well as endorsing the guidance of Hedley J above, Munby P offers the following guidance for future “good practice”:

1. Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.
2. The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.
3. The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.
4. The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).
5. Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.

It will be well worthwhile being mindful to pursue appropriate disclosure to ensure this guidance has been followed in all cases that follow s20 accommodation.

Another important issue, which may well have a direct impact on all our practices, arises where Munby P expresses himself to be ‘exceedingly sceptical’ as to whether a parent can lawfully contract out of s.20(8) in advance by agreeing to give a specified period of notice before exercising their right to remove the child from voluntary accommodation.

Gone is the ability safely to negotiate that, say, 72 hours’ notice will be given to the LA before removal, so that appropriate steps can be taken to set up a contested hearing. Instead, the LA must return a child immediately – whether “out of hours”, or on Christmas Eve – or deliberately breach the law and face the consequences. The alternatives of EPO or PPO are not apt for the purpose of continuing potentially necessary protection in all such cases.

Often, this kind of negotiation has made the difference between a “door of the court” agreement for a child to be accommodated versus an interim contested hearing for removal. I expect we will find ourselves conducting considerably more of the latter; and presenting clients with a narrower range of options at the outset.

The issue in local practice

More locally, our own (recently retired ) HHJ Bond, then designated Family Judge for Dorset, was ahead of the game. In a Notice dated 22^nd June 2015, having roundly criticised a case where it was apparent that s20 accommodation had continued “in an unstructured way for an excessive period of time”, which was “unprincipled and wrong”, he indicated as follows:  

“In any case before District Judges or magistrates in this area where there is any significant suggestion that accommodation under section 20 has been misused in the manner that I have described, the case should be listed before a Circuit Judge following a case management hearing. Circuit Judges are encouraged to give judgments on any such issues that arise before them on referral or on a CMH listed before them. Where possible and appropriate the judgment shall be place upon Bailli in accordance with the transparency provisions. I consider it to be in the public interest that any such misuse of accommodation under section 20 should be made public.”

Such case management seems worthy of application across the Circuit – what’s good for Dorset cases must surely be good elsewhere. It will prove very useful in ensuring all local cases of potential misuse of s20 are properly scrutinised and brought to public attention.