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.