A recent ruling in the Court Of Appeal suggests that local authorities do not have to get parents’ permission before placing children in accommodation under S.20 of the Children Act 1989.
The Court took this view because the law addressing S.20 arrangements is silent on the issue of parental consent and because both parents in this case were subject to bail conditions, and so not legally able to mount an objection around consent. The Court of Appeal also went on to say that a failure to get consent may not necessarily constitute negligent or actionable behaviour on the part of the local authority.
Whilst the Children Act 1989 doesn’t mention whether or not consent is required, S.20 arrangements are meant to be collaborations between parents, children and the local authority, so whilst the Children Act doesn’t expressly state consent is required, it is implied.
The entire provision is based upon understanding and agreement – what could be a more basic condition than consent in this context? Consent in a legal sense too, is the most fundamental element in any agreement, and should never be waived by a court.
And in the case of S.20 arrangements consent is incredibly delicate and presents a Catch 22 for parents. That is because S.20 is used as a measure of co-operation by local authorities, to see whether parents are willing to work with them. This practice has resulted in local authorities using S.20 to secure care proceedings where parents were thought to be un-co-operative because they did not consent to the arrangement being offered. This is not how the legislation intended S.20 to be used, but it is this kind of culture creep inside the system which both directly and indirectly wears away at family and child rights.
It’s also officially poor practice not to get consent from parents in the first instance. President Of The Family Division James Munby has made it clear in guidance that consent is necessary when putting together S.20 arrangements. Moreover, a failure to do so could still result in legal action against the local authority involved.
In spite of all that, this ruling does not affect a parent’s right to remove a child from council accommodation under S.20 – so if an arrangement is made and you or your child don’t like it, if you have parental responsibility or your child is 16 or over, they can leave at any time. Children are also entitled to have their say over S.20 accommodation plans – this legal right is set out under S.20(6).
At a time when councils are looking to cut costs, this judgment is a reckless one and it sustains the myth that families’ rights are somehow subservient to local authority obligations. Councils could now take the view that they don’t have to spend their already limited time and resources getting parents to agree to S.20 accommodation arrangements for their children. We would suggest councils think twice before bypassing parental consent – any future legal action will be far more costly.
finolamoss said:
So what the courts/law is saying. is a child can be accommodated without consent, yet the parent still retains parental responsibility, this is a nonsense.
I have read a case, where a mother sued successfully for breach of her s8 HRA to a family and s6 HRA to a fair hearing, when the adoption/care of her baby was put in her leaving care pathway plan, as she had not given express consent just assumed social workers could take her baby. How do such cases fit in with this ?
It would appear courts are supporting the successive governments policy of adoption/fostering industry.
LikeLiked by 2 people
Forced Adoption said:
Sadly I reckon the Court of Appeal was right in their interpretation of the law as it stands.The parents alas were intimidated into signing a safeguarding agreement .Never sign anything Under duress or if you do sign add “Signed under extreme duress” beneath your signarure !
If the parents had refused to accept bail conditions and objected to the section 20 the outcome would have been very different !
By the way it is NOT an offence to breach bail conditions !
LikeLike
finolamoss said:
There is an offence of abscontion s6? And if they breach they risk being put in jail remanded in custody.
It still begs my two points ie they could sue for breach of HRA ?
And how does decision accord with their continuing parental responsibility ?
LikeLike
Forced Adoption said:
Breach of conditions of Bail
Revised Practice and Procedure
Breach of conditions of bail is not a Bail Act Offence, nor is it a contempt of court unless there is some additional feature (Ashley [2004] 1 Cr App R 23).
Pre Charge
The police have a power of arrest where conditions imposed on pre-charge bail have been breached (see section 46A PACE 1984 as inserted by CJPOA 1994 Section 29 (2)). Where a person has been re-arrested, section 37 C (2) (b) PACE gives the police the power to release (again) “without charge, either on bail or without bail”. Section 37 C (4) states explicitly that if a person is released on bail under section 37 C (2)(b), then that person shall be subject to whatever conditions applied before the ‘re-arrest’. It appears that there is no power to change conditions of bail at this point.
Post Charge
Section 7 of the Bail Act 1976 confers power upon the Police to arrest a person if the Constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions.
A person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before a Justice of the Peace of the Petty Sessions for the area in which he was arrested.
Prosecutors are reminded of R v Culley [2007] EWHC 109 which states that where a person has breached their bail, they must not only be brought before the court ‘as soon as is practicable’ but also be dealt with within 24 hours of arrest (see s7 (4) Bail Act 1976).
LikeLike
finolamoss said:
Yes, as I said it is not an offence under Bail Act unless s 6 absconsion, but if breach then ‘changes in circumstances’ and most likely be taken back to court and remanded in custody. Is this a big issue in the case?
I’m more concerned about my other points .
LikeLiked by 1 person
daveyone1 said:
Reblogged this on World4Justice : NOW! Lobby Forum..
LikeLike
keith said:
This a bad bad ruling.
Leveson is a absolute disgrace to the british justice system and should be struck off the bench.
how this man got a knighthood is beyond me.
this family clearly had their human rights violated yet he rules in favor of this LA.
i wonder if Sir James Munby would have the same view as Leveson.
this is a seriously bad ruling and thats putting it mildly.
LikeLiked by 2 people
maureenjenner said:
Reblogged this on Musings of a Penpusher.
LikeLike
Forced Adoption said:
Why not ask the President of the family courts?………..
“Munby P considered that the recent case-law illustrated to an alarming degree four separate problems, all too often seen in combination:
i.The failure of the LA to obtain informed consent from the parent(s) at the outset. LAs must heed the guidance set out by Hedley J in Coventry City Council v C, B, CA and CH [2012] EWHC 2190 (Fam), [2013] 2 FLR 987 at para 46 (cited at [164]). Where a parent is not fluent in English it is vital to ensure the parent has a proper understanding of what precisely they are being asked to agree to.
ii.The form in which the consent of the parent(s) is recorded. A feature of recent cases has been the serious deficiencies apparent in the drafting off too many s.20 agreements.
iii.Far too often the arrangements under s.20 are allowed to continue for far too long.
iv.The seeming reluctance of LAs to return the child to the parent(s) immediately upon a withdrawal of parental consent. A LA which fails to permit a parent to remove a child in circumstances within s.20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even by guilty of a criminal offence. Munby P was ‘exceedingly sceptical’ as to whether a parent can lawfully contract out of s.20(8) in advance by agreeing with the LA to give a specified period of notice before exercising their s.20(8) right to remove the child.
Munby P stated that for the future good practice requires the following, in addition to proper compliance with the guidance given by Hedley J:
i.Wherever possible the agreement of a parent to the accommodation of their child under s.20 should be properly recorded in writing and evidenced by the parent’s signature.
ii.The written document should be clear and precise as to is terms, drafted in simple and straight-forward language that the particular parent can readily understand.
iii.The written document should spell out, following the language of section 20(8), that the parent can ‘remove the child’ from the LA accommodation ‘at any time’.
iv.The written document should not seek to impose any fetters on the exercise of the parent’s right under s.20(8).
v.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’.
Misuse and abuse of s.20 is a denial of the fundamental rights of both the parent and child, ‘it will no longer be tolerated’ and ‘it must stop’.
Summary by Victoria Flowers, barrister, Field Court Chambers
LikeLike
keith said:
“Why not ask the President of the family courts?”
i agree Ian, it would seem that Sir Munby is saying one thing while other judges are saying the opposite.
its time for a British justice Revolution in favor of the people.
LikeLike
Alastair Patterson said:
S.20 is intended when parents are unwilling or unable to accommodate the child. The issue of choice doesn’t arise. It is a measure of last resort.
LikeLike
keith said:
“S.20 is intended when parents are unwilling or unable to accommodate the child. The issue of choice doesn’t arise. It is a measure of last resort.”
we were more than willing and perfectly able to look after our children as we had done for over 12yrs but they still insisted on us signing a S20 or they would call the Police.
We feel the are abusing this for the purpose of seeking an Adoption order at a later date. usually after they have built their case against the parents.
its nothing less than organized Crime.
LikeLike
Pingback: Infamous Section 20 Arrangements To Be Investigated – Have Your Say | Researching Reform
Pingback: Question It! | Researching Reform
Pingback: HOLLIE GREIG JUSTICE
Pingback: More Councils Using Section 20 Arrangements To Keep Children In Care Illegally | Researching Reform
Pingback: BREAKING: Supreme Court Rules Parents Must Be Informed About Their Rights Under Section 20 Agreements | Researching Reform