Accommodating Children: the use of Section 20 of the Children Act 1989 in light of Re S (A Child) and Re W (A Child) [2023] EWCA Civ 1

Section 20 of the Children Act 1989 can be a useful tool in the armoury of a Local Authority and can also provide welcome respite for struggling parents. In recent years, there has been much argument as to the use of section 20 which has received judicial scrutiny and determination by the (then) President of the Family Division, the Court of Appeal and the Supreme Court.?

Useful guidance has been given by the senior Courts as to the proper use of section 20 of the Children Act 1989 from the perspective of a Local Authority seeking such consent from parents or those with parental responsibility.

In possibly the first decision by the Court of Appeal in 2023, the Court of Appeal has just handed down judgment in?Re S (A Child) and Re W (A Child) [2023] EWCA Civ 1?in which further guidance has been given about the use of section 20 of the Children Act 1989, albeit from a different perspective from what we have had currently.

Whilst highlighting the parameters which exist within section 20 of the Children Act 1989, King LJ explored the Supreme Court authority of?Williams v London Borough of Hackney [2018] UKSC 37?as well as the report of the Public Law Working Group and its Best Practice Guidance on the use of section 20.?

In the Court of Appeal’s judgment in?Re S (A Child) and Re W (A Child), King LJ said:

-???????There is no inhibition on the use of section 20 accommodation for a longer period of accommodation provided that proper consideration is given to the purpose of the accommodation and that the regular mandatory reviews are carried out.

-???????If the person who holds a ‘lives with’ Child Arrangements Order in respect of the child agrees to section 20 accommodation, no other person with parental responsibility may object or remove the child.?

-???????Further judicial guidance on the proper use of section 20 would serve little purpose.

We can take it from the Court of Appeal that there will be little appetite to provide guidance over and above what we now have. A read through the exisiting case-law on the subject demonstrates, in my view, a comprehensive analysis of the powers and responsibilities of those seeking and giving consent for their child to be accommodated under section 20 of the Children Act 1989.

The majority of my practise sees me represent parents within care proceedings. I continue to hear from parents being asked for section 20 consent with the threat of police attendance if they refuse who will be asked to exercise their powers of protection. I continue to hear from parents who have no idea what section 20 consent is and yet are asked to give it without it being explained to them. In short, the guidance we have from the senior courts is not followed by many social workers on the ground.

I share the Court of Appeal’s view that further judicial guidance on the proper use of section 20 would serve little purpose: we have a lot of it. What we now need – almost 5 years after the Supreme Court judgment – is for that guidance to be implemented and followed ‘on the ground.’

As Children lawyers, we do not need further guidance or assistance with interpreting the guidance we have. We need Local Authority’s to ensure that they have proper and secure procedures in place for the obtaining of section 20 consent?and?management and review of those cases where section 20 consent is in place. We need Local Authorities to ensure that their social workers and staff are adequately trained and aware of the requirements placed upon them when seeking and receiving section 20 consent from parents (who are almost always in a vulnerable position and should be treated as such).

With the renewed focus on the Public Law Outline, it is possible that we will see an increase in the use of section 20 consent – especially if the Court of Appeal essentially endorse the long-term use of it in appropriate cases: it could never be a more appropriate time to ensure that?all?of those who work in this area of law – social work professionals and lawyers – know of the guidance we have and are following the guidance we have.?