It takes courage for parents to turn to Local Authorities for help when things are going wrong.
A Local Authority may suggest “accommodating” children for a period of time. But what happens if parents don’t agree? And what happens if parents agree for a short time but then Children’s Services refuse to return their children? Who determines how long is long enough where there are no Court proceedings, no Judge and crucially no Guardian or representation for the child? What rights do parents and children have in these situations?
What is Section 20?
Section 20 Children Act 1989 places a duty on local authorities to provide accommodation for children in need. However, s20(8) is very clear that “a person who has parental responsibility for a child may at any time remove the child …”. The reality is that in practice, this fundamental right of parents is often ignored by local authorities.
Following judicial concern in recent cases where children have been accommodated for in excess of 2 years and where there have been questions over whether a parent has truly “consented”, the President of the Family Division, Sir James Munby, set out guidance in Re N  EWCA Civ 1112 [paras 157-171] - http://www.bailii.org/ew/cases/EWCA/Civ/2015/1112.html.
The President highlights four problems:
- The failure of local authorities to obtain informed consent from parents [para 163-164]. Does the parent have capacity to consent? Does the parent understand the consequences of consenting? Is removal actually necessary? Particular care should be taken in seeking consent from a Mother directly after birth.
- Care should be taken over the form of consent, which ought to be in writing, translated if necessary and ought not to be “compulsion in disguise” [para 165].
- Far too often, s20 arrangement are allowed to continue for far too long [para 166].
- The reluctance of local authorities to return a child to its parents immediately upon request:
Regarding the fourth point, the President is clear:
“This means what it says. A local authority which fails to permit a parent to remove a child in circumstances within section 20(8) acts unlawfully, exposes itself to proceedings at the suit of the parent and may even be guilty of a criminal offence.
A parent in that position could bring a claim against the local authority for judicial review or, indeed, seek an immediate writ of habeas corpus against the local authority.
I should add that I am exceedingly sceptical as to whether a parent can lawfully contract out of section 20(8) in advance, as by agreeing with the local authority to give a specified period of notice before exercising their section 20(8) right”
The message to local authorities is clear
“The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop”.
We Can Help
At MW, our mission is to make quality legal services accessible to everyone including families affected by Section 20 misuse and abuse. We have a team of specialist family solicitors waiting to help.