WILLIAMS V HACKNEY [2018] UKSC 37
FACTS:-
The Claimants were the mother and father of eight children. In July 2007, one of their children made an allegation of physical abuse against them. The police entered the family home and found it in an unhygienic and dangerous state unfit for habitation by children. The police exercised their powers under section 46 of the Children Act 1989 Act in respect of all eight children. Both the mother and the father were arrested and interviewed, but released the same day on bail. They entered in a “Safeguarding Agreement” with the local authority for their children to remain in care but the agreement itself did not say that it was entered into under Section 20 of the 1989 Act. After three days they asked through their solicitors for their children to be returned. A few days after their children were taken into care, the local authority decided that the children should be returned home as soon as possible, but there was a hold up because the police refused to vary the bail conditions. After around two months, the children were returned to their parents.
Legal proceedings against the local authority were begun in July 2013. This was following a complaint made by the parents which went to the Local Government and Social Care Ombudsman, which was not resolved until April 2013. The parents claimed damages for negligent breach of statutory duty, misfeasance in public office, religious discrimination and breach of their rights under article 8 of the ECHR. At first instance all of these claims were dismissed apart from the human rights claim, for which the court awarded £10,000 to each of the parents. On appeal to the Court of Appeal, it was held that there was a lawful basis for the children’s accommodation. That issue then came before the UK Supreme Court.
JUDGEMENT :-
The UK Supreme Court considered the Children Act 1989 and the origins of Section 20. The Court also considered the case law on section 20. These included the following :-
The Court also referred to four cases, apart from this one, in which damages had been awarded under the Human Rights Act:-
More recently there was the case of Keehan J in Herefordshire Council v AB and CD; Herefordshire Council v EF and GH [2018] EWFC 10.
The Court observed :-
In relation to this case, the parents not having objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under section 20. This meant that the ground on which the judge held their accommodation to have been in breach of the parents’ article 8 rights was not made out. Therefore, the parents’ Human Rights Act claims should have been dismissed.
In summary, there were circumstances in which a real and voluntary delegation of the exercise of parental responsibility was required for a local authority to accommodate a child under section 20, albeit not in every case. Parents with parental responsibility always had a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child was to live). Section 20 gave local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it did. It was obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child was accommodated under section 20 or as soon as practicable thereafter.
FACTS:-
The Claimants were the mother and father of eight children. In July 2007, one of their children made an allegation of physical abuse against them. The police entered the family home and found it in an unhygienic and dangerous state unfit for habitation by children. The police exercised their powers under section 46 of the Children Act 1989 Act in respect of all eight children. Both the mother and the father were arrested and interviewed, but released the same day on bail. They entered in a “Safeguarding Agreement” with the local authority for their children to remain in care but the agreement itself did not say that it was entered into under Section 20 of the 1989 Act. After three days they asked through their solicitors for their children to be returned. A few days after their children were taken into care, the local authority decided that the children should be returned home as soon as possible, but there was a hold up because the police refused to vary the bail conditions. After around two months, the children were returned to their parents.
Legal proceedings against the local authority were begun in July 2013. This was following a complaint made by the parents which went to the Local Government and Social Care Ombudsman, which was not resolved until April 2013. The parents claimed damages for negligent breach of statutory duty, misfeasance in public office, religious discrimination and breach of their rights under article 8 of the ECHR. At first instance all of these claims were dismissed apart from the human rights claim, for which the court awarded £10,000 to each of the parents. On appeal to the Court of Appeal, it was held that there was a lawful basis for the children’s accommodation. That issue then came before the UK Supreme Court.
JUDGEMENT :-
The UK Supreme Court considered the Children Act 1989 and the origins of Section 20. The Court also considered the case law on section 20. These included the following :-
- R (G) v Nottingham City Council [2008] EWHC 152 (Admin)
- Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam)
- re W (Parental Agreement with Local Authority) [2014] EWCA Civ 1065
- re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112
The Court also referred to four cases, apart from this one, in which damages had been awarded under the Human Rights Act:-
- re H (A Child: Breach of Convention Rights: Damages) [2014] EWFC 38 (29 October 2014).
- Northamptonshire County Council v S [2015] EWHC 199 (Fam)
- re AS, London Borough of Brent v MS, RS and AS [2015] EWFC B150, 7 August 2015
- Medway Council v M and T [2015] EWFC B164
More recently there was the case of Keehan J in Herefordshire Council v AB and CD; Herefordshire Council v EF and GH [2018] EWFC 10.
The Court observed :-
- The starting point must be parental responsibility. All mothers and (now) most fathers had it automatically.
- It might be confusing to talk of parental “consent” to the removal (or accommodation) of a child. If a parent did not agree to this, he/she was simply delegating the exercise of parental responsibility for the time being to the local authority. Any such delegation must be real and voluntary.
- Removing a child from the care of a parent was very different from stepping into the breach when a parent was not looking after the child.
- Parents might ask the local authority to accommodate a child, as part of the services they provided for children in need.
- Subsection (7) of Section 20 operated as a restriction on the powers and duties of the local authority under subsections (1) to (5). The authority could not accommodate a child if a parent with parental responsibility who was willing and able either to accommodate the child herself or to arrange for someone else to do so objected to the local authority doing so.
- Subsection (8) made it absolutely clear that a parent with parental responsibility may remove the child from accommodation provided or arranged by a local authority at any time.
- The right to object in subsection (7) and the right to remove in subsection (8) were qualified by subsections (9) and (10). These catered for court orders which had determined with whom a child is to live.
- Section 20 made special provision for children who had reached 16.
- Finally, there was nothing in section 20 to place a limit on the length of time for which a child might be accommodated.
In relation to this case, the parents not having objected or unequivocally requested the children’s immediate return, there was a lawful basis for the children’s continued accommodation under section 20. This meant that the ground on which the judge held their accommodation to have been in breach of the parents’ article 8 rights was not made out. Therefore, the parents’ Human Rights Act claims should have been dismissed.
In summary, there were circumstances in which a real and voluntary delegation of the exercise of parental responsibility was required for a local authority to accommodate a child under section 20, albeit not in every case. Parents with parental responsibility always had a qualified right to object and an unqualified right to remove their children at will (subject to any court orders about where the child was to live). Section 20 gave local authorities no compulsory powers over parents or their children and must not be used in such a way as to give the impression that it did. It was obviously good practice in every case that parents should be given clear and accurate information, both orally and in writing, both as to their own rights and as to the responsibilities of the local authority, before a child was accommodated under section 20 or as soon as practicable thereafter.