Another Supreme Court victory for Ely Place

The Supreme Court has today handed down judgment in Williams v Hackney ([2018] UKSC 37), ending a long running dispute which started over 10 years ago. In a unanimous decision given by Lady Hale (with whom Lord Kerr, Lord Wilson, Lord Carnwath and Lady Black agreed), the Court has dismissed the Claimants’ human rights appeal, holding that the local authority did not breach their Article 8 ECHR right.

In July 2007, the Claimants were arrested on suspicion of child abuse and their 8 children were placed with Hackney by the police under emergency powers. The Claimants were released on bail, but a condition of their bail was that they were prohibited from having unsupervised contact with any of their children. The local authority sought the Claimants’ written consent to accommodate the children with foster parents under section 20 of the Children Act 1989. The bail conditions were eventually relaxed in September 2007, and the children returned home.

The Claimants thereafter complained that their consent for section 20 accommodation was not fairly obtained, relying on a set of obiter guidelines given by the Family Court requiring parental consent to be positively and fairly obtained with full information. The Claimants also argued that they in had in any event withdrawn their consent under section 20(8) and the children ought to have been returned to them regardless of the bail conditions. The Claimants were not satisfied with Hackney’s internal complaint procedure, and so referred the matter to the local government Ombudsman. After that procedure concluded, they issued a claim in the High Court in 2013 and the trial Judge (Sir Robert Francis QC) dismissed the claims in negligence and misfeasance He held however that the parents’ consent had not been fairly obtained with full information and ordered Hackney to pay £20,000 in damages for breach of Article 8. In January 2017, the Court of Appeal (Leveson, McFarlane and Burnett LJJ) allowed Hackney’s appeal ([2017] 3 W.L.R. 59), holding that the local authority had a duty under section 20(1) to accommodate the children given that the parents were “prevented” from providing such accommodation, and that their duty was not discharged because the parents were not “able” to provide accommodation for the purposes of section 20(7). The Court of Appeal also held that whilst the guidelines of the Family Court were good practice, there was no requirement under section 20 to obtain the parents’ positive expression of consent prior to providing accommodation.

The Supreme Court reiterated that the duty under section 20(1) is not discharged where parents are not able to provide suitable accommodation, and also held that accommodation can be provided without full information and consent, for example where the child is abandoned. But the Court has placed the emphasis on the parents’ unfettered right under section 20(8) to remove their children from local authority accommodation, and held that a parent’s request for removal must be observed unless returning the children risks their welfare. In such cases, any debate about the children’s welfare and the parents’ ability to provide suitable accommodate is best had in care proceedings. In dismissing the Claimants’ appeal, the Supreme Court held that their request for the return of their children was not unequivocal and did not come under section 20(8).

Ali Reza Sinai represented Hackney at first instance and in the Court of Appeal, and was led by Nicholas Stewart QC in the Supreme Court, in each case instructed by Dawn Carter-McDonald of Hackney’s in-house legal department.