Section 20 Damages Curtailed for Local Authorities

Court of Appeal rules that local authorities do not need to positively obtain fully informed and fair parental consent before accommodating children under section 20 of the Children Act 1989 and any such failure will not render them liable for human rights damages

The Court of Appeal (Leveson, McFarlane & Burnett LJJ) has today delivered an important judgment ([2017] EWCA CIV 26) on the duties placed on local authorities by section 20 of the Children Act 1989 towards parents, reversing the lower Court’s judgment and finding that it was not bound by its own previous decisions on the issue.

On 5 July 2007, all 8 of the Claimants’ children were removed by the police under a police protection order and placed with Hackney who arranged foster care. The Claimants were arrested on suspicion of child abuse and neglect, and released on bail. The conditions of bail were that no unsupervised contact was allowed with any of the children. In practice, visits were undertaken with the presence of social workers. On the following day, the Claimants signed a written section 20 agreement, consenting to continued accommodation and fostering provided by Hackney. Within days, the Claimants had instructed solicitors who wrote to Hackney giving notice that consent was revoked with effect from 23 July 2007. However the Claimants did not make any applications to vary the bail conditions which were eventually removed in September 2007. The children were returned to their parents after a period of approximately 9 weeks in care.

The Claimants thereafter initiated internal complaints, and a subsequent complaint to the LGO, claiming that Hackney had not obtained their consent fairly or informed them of their rights to remove their children. The LGO complaint concluded in April 2013 and the HR claim was issued in July 2013, some 5 years out of time. The High Court ruled that the consent of the parents had not been obtained fairly, and awarded each parent damages of £10,000 for the period of separation. The Court relied heavily on guidelines given by the Family Division in Coventry City Council v C [2013] EWHC 2190 (Fam), where the Court stated that every social worker must be satisfied that the person giving consent has capacity to do so, and that even if the person does not lack capacity that the social worker must be satisfied that the consent is fully informed (meaning that the parent must understand the consequences of giving consent, the range of choices available, the consequences of refusal and of giving consent, and must be in possession of all the facts and issues material to the giving of consent), fair and proportionate, and where possible parents must obtain legal advice before consenting.

Hackney appealed the decision on the basis that there is no requirement in the statute itself to obtain fully informed and fair consent, since the parent only has the right to object and remove the child. Hackney had exercised its duty under section 20(1) as the parents were “prevented” from providing accommodation, and the section states that parents may only object if they are “willing and able” to provide or arrange accommodation. In the present case, the Claimants’ objection did not discharge Hackney’s duty because they were not “able” to provide accommodation by reason of the bail conditions. Hackney also argued the limitation period should not be extended for long periods to allow dispute resolutions procedures to conclude, and that the amount of damages was in event excessive for the period of separation.

The Court of Appeal allowed the appeal, holding that Hackney had a duty to accommodate the children and objection from parents who are not able to provide accommodation does not prevent the exercise of this duty. The Court held that it was not bound by its previous decisions and held that whilst the guidance of the Family Division is good practice and should be followed, there is no requirement in the statute to positively obtain fair and informed consent and therefore failure to do so will not give rise to a damages claim.

The Court held that it did not need to determine the other issues, but stated that it would not have extended limitation for the period in this case so as to allow the conclusion of the extra-judicial complaints, and would not have awarded anything nearing £10,000 in damages.

Ali Reza Sinai was instructed by Hackney’s Legal Department and represented the local authority at first instance and in the Court of Appeal.

26th January 2017