An interesting judgment has been published, which says that voluntary accommodation for children engaging with child protection services can be provided and used instead of care orders, and for as long as needed.

Lady Justice King’s judgment should be read with caution, because while it says that families are able to use this form of accommodation long-term instead of a care order, it also suggests that local authorities could use these agreements to move a child across to a care order – which when done a certain way is illegal.

Section 20 agreements allow children to stay in local authority accommodation for a variety of reasons, including needing a break from their parents (or respite for the parents), and in situations where a professional takes a legitimate view that a child may need to be removed temporarily from her or his parents for their emotional and physical wellbeing.

The agreements came under fire in 2015 after councils were found to have been using them illegally to secure care orders: councils were telling parents that they could not remove their children from the accommodation, and that they had to sign the agreement by law, which was incorrect. The then president of the Family Division, James Munby, issued guidance on the agreements to try and stop the malpractice.

Furthermore, parents were not being told that the agreements were voluntary, required their full and informed consent, and that children could leave the accommodation whenever they wanted and without notice. They were also not being told that they had a right to get the agreement reviewed by a lawyer or trusted friend before signing. Parents can remove their children whenever they want from the accommodation, also without notice.

An additional section of the judgment seems to imply that whenever a disagreement between parents and the LA arises prior to an adoption order being made, the LA has an automatic right to “trump” the parents – but this is not correct.

Parents keep parental responsibility for their child throughout care proceedings and child protection investigations, and only lose it when an adoption order is made. If a care order is made in court, parents and the LA share PR, EQUALLY. Any critical disagreement about a child that cannot be resolved has to be resolved by a judge in court. The LA doesn’t have a blanket “trump” card.

The misunderstanding seems to stem from Section 33(3)(b)(i) of the Children Act 1989, which says the following about instances where a child becomes the subject of a care order:

(3) While a care order is in force with respect to a child, the local authority designated by the order shall—
(a) have parental responsibility for the child; and
(b) have the power (subject to the following provisions of this section) to determine the extent to which [F1—
(i) a parent, guardian or special guardian of the child; or
(ii) a person who by virtue of section 4A has parental responsibility for the child,] may meet his parental responsibility for him.
(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.

While case law has confirmed that issues like vaccination are generally in the hands of the LA in this context, there are clearly exceptions to the LA’s power, particularly where a disagreement about whether a proposal by the LA is in the best interests of a child, which can be challenged under Subsection (4) above.

And while the section says the LA has parental responsibility for a child in this context, it doesn’t clarify that it SHARES that PR equally with the parents.

There is a helpful summary of the case on Local Government Lawyer, (LGL), an extract of which we’re adding below:

The Court of appeal has allowed two appeals which concerned the interplay between care orders and the voluntary accommodation of children under section 20 of the Children Act 1989.

In Re S (a child) and Re W (a child) [2023] EWCA Civ 1, Lady Justice King, with whom Lord Justice Warby and Lord Justice Arnold agreed, considered whether and in what circumstances, the threshold criteria having been established and there being in place an agreed care plan, the court should decline to make an order under section 31 CA 1989 and instead make no order in accordance with the ‘no order’ principle.

Re S was an appeal against the order of HHJ Atkins of 24 June 2022 whereby he ordered that a child S, aged 9 years, should be made the subject of a care order in favour of a London borough.

Re W was an appeal against the order of HHJ Coffey dated 16 June 2022 whereby she ordered that a girl W, aged 15 years, should be made the subject of a care order in favour of a county council.

The children in each case were beyond parental control, a finding which Lady Justice King noted “does not necessarily mean that the parents are culpable in any way”.

The appellants argued that the children could be accommodated on a long-term basis under section 20.

In Re S, the grounds of appeal filed following the making of the care order by HHJ Atkins were summarised by Lady Justice King as follows:

i) The judge wrongly concluded that a section 31 CA 1989 order was necessary and proportionate on the basis that there was a ‘significant risk’ that S’s father may withdraw his support for section 20 accommodation in the future, S’s father has been difficult to contact and communicate with and there have been contact difficulties in the past.

ii) The judge erred when stating that the issue was ‘do the local authority need to share parental responsibility?’.

iii) The judge attached excessive weight to the certainty that would be provided by a care order. He failed to express a view as to whether section 20 CA 1989 orders could be used for long term accommodation.

iv) Judicial guidance would be of benefit as to the test to be applied where it is submitted that the section 1(5) CA 1989 ‘no order’ principle should be adopted in preference to section 31.

In Re W, the grounds of appeal against the order of HHJ Coffey were summarised as follows:

i) The judge erred in determining that the proper use and purpose of section 20 CA 1989 is for short-term and temporary accommodation when the provisions of the CA 1989 do not restrict or qualify the use of section 20 CA 1989 accommodation in such a way.

ii) Having determined the above, the judge erred in attaching substantial weight and reliance on that determination as the primary reason for making a care order.

iii) The judge erred in considering that she was able to influence or fetter the local authority’s exercise of its parental responsibility during the care order or, in the alternative, placed weight on this consideration as part of her welfare and decision-making evaluation.

iv) The judge erred in concluding that the no order principle and least interventionist approach was rebutted in the circumstances of this case and in failing to identify, or identify properly, the welfare benefits to the child of her parents retaining sole parental responsibility.

Lady Justice King said it was helpful to understand not just the limits of a section 20 order, but also how it differs from a care order.

Deirdre Fottrell KC, acting on behalf of the appellant in Re S, had summarised it by saying that a section 31 care order is the more “draconian order” and more “interventionist”.

“This is undoubtedly the case as not only does a local authority acquire parental responsibility pursuant to section 33(3)(a) CA 1989 when a care order is made, but also under section 33(3)(b)(i) CA 1989 the local authority may ‘determine the extent to which a parent may meet his or her parental responsibility’ for the child in question,” Lady Justice King said.

Lady Justice King summarised the parameters of section 20 accommodation:

i) Parents may ask the local authority to accommodate a child as part of the services they provide for children in need: Williams & Another v London Borough of Hackney [2018] UKSC 37, [2018] AC 421 at para. [41].

ii) A local authority cannot provide accommodation if any person who has parental responsibility and is able to provide or arrange for accommodation to be provided for the child objects: section 20(7).

iii) There is no statutory limit upon the duration of an order for accommodation made under section 20. That this is the case was confirmed in Williams v Hackney LBC at para.[49].

iv) Whilst a person with parental responsibility may not surrender or transfer any part of their parental responsibility, they may delegate it by arranging for some or all of it to be met by one or more persons on their behalf: section 2(9) CA 1989. In agreeing to the making of a section 20 order a parent is ‘simply delegating the exercise of her parental responsibility to the local authority for the time being’: Williams v Hackney LBC at para. [39].

v) Any person with parental responsibility may at any time remove the child from the accommodation: section 20(8).

vi) If there is a child arrangements order naming a person with whom the child is to live and that person agrees to the child being accommodated, then no other person with parental responsibility may either object to the placement under section 20(7) or remove the child from the accommodation under section 20(8).

Lady Justice King went on to consider the leading authority on the use of s.20 CA 1989, Williams & Another v London Borough of Hackney [2018] UKSC 37, [2018] AC 421, in which Baroness Hale had set out nine points in relation to the proper use and effect of orders under section 20 [see paras 38 and 49].

Baroness Hale had concluded her analysis by saying that:

“50. Thus, although the object of section 20 accommodation is partnership with the parents, the local authority have also to be thinking of the longer term. There are bound to be cases where that should include consideration of whether or not the authority should seek to take parental responsibility for an accommodated child by applying for a care order”.

On the improper use of section 20, Baroness Hale had emphasised at para [51], that ‘section 20 must not be used in a coercive way; if the state is to intervene compulsorily in family life, it must seek legal authority to do so’.

Researching Reform has written extensively about Section 20 agreements, so anyone looking for more information can type Section 20 into the site’s search bar, and everything pops up. We are adding a checklist we published below, for anyone wanting a quick recap:

  • Section 20 arrangements are voluntary – this means that the local authority cannot place a child in alternative accommodation unless parents agree to the arrangement.
  •  You are entitled to be fully informed – the local authority must offer you as much information as you need, in a clear and accessible format
  • If you have parental responsibility for a child, you can remove your child from accommodation provided by or on behalf of the local authority at any time
  • If a child is 16 or 17, they can leave the accommodation without parental consent
  • Always ask for a S.20 arrangement to be put into writing – something this important shouldn’t be set up on word of mouth. If anyone refuses to put this agreement in writing, tell them you have the support of the President Of The Family Division
  • Children have a right to be heard – any child who wants to express their wishes and feelings in writing is entitled to do so under a S.20 agreement, and to have those views taken on board by the local authority
  • A S.20 arrangement should never be used to secure care proceedings – local authorities do not have the right to put you off terminating a S.20 by giving you the impression that it’s final or compulsory