The consent of parents is not required for councils to legally provide accommodation for their children, the Court of Appeal has ruled.
Section 20 of the Children Act 1989 states that:
“Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a)there being no person who has parental responsibility for him;
(b)his being lost or having been abandoned; or
(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”
Court of Appeal Judges examined an earlier ruling that the London Borough of Hackney had breached the human rights of a couple with no less than eight children by taking the latter into foster care without the parents’ consent.
The youngster had originally been taken into police protection for a period of 72 hours because social workers believed the father may have hit them. The parents were arrested and released on bail with a ban on unsupervised contact with the youngsters, meaning the Council needed to accommodate them under Section 20. The parents insisted that a “safeguarding agreement” they had signed at the time had been imposed on them and they hadn’t truly agreed to it.
The children eventually returned home and the parents launched a formal complaint, which culminated in court action. Hackney was ordered to pay the couple no less than £10,000 in compensation.
The Council successfully appealed. Sir Brian Leveson, President of the Queen’s Bench Division, concluded that there was no legal requirement for parental agreement for so-called ‘Section 20’ arrangements to be lawful.
“.. the continued existence of the bail condition had the twin consequence that [the parents], firstly, were ‘prevented … for whatever reason’ from providing suitable accommodation and care for their children (s 20(1) of the 1989 Act) and, secondly, were not ‘able’ to provide accommodation for them in order to trigger their statutory right to object (s 20(7) ibid). It is entirely understandable that [the earlier judge] felt constrained…to conclude that s. 20 of the 1989 Act required Hackney to prove informed consent to the continued separation of the children from their parents.”
Sir Brian continued:
“In my judgment, he was wrong to do so, not least because the statute does not require such consent to be established. In the circumstances, I would reverse his finding that the retention of the children after the period of 72 hours was unlawful and, equally, that such retention constitutes a breach of the parents’ Article 8 rights.”
Article 8 of the European Convention on Human Rights refers to respect for “private and family life”.
Consequently, “damages should not have been awarded” said Sir Brian.
Read the full judgement here.