This judgment
was
handed down
remotely
at 10.30am on 5 January
2023
by circulation to the parties or their
representatives
by e-mail and by
release
to the National Archives.
.............................
Lady Justice King:
- These appeals concern the interplay between care orders
which
have been made pursuant to
section
31 Children Act 1989 ('CA 1989') and the voluntary accommodation of children in need under
section
20 CA 1989 ('
section
20'). The issue is
whether
and in
what
circumstances, the threshold criteria having been established and there being in place an agreed care plan, the court
should
decline to make an order under
section
31 CA 1989 and instead
should
make no order in accordance
with
the 'no order' principle as
set
out in
section
1(5) CA 1989.
Re
S
is an appeal against the order of HHJ Atkins of 24 June 2022
whereby
he ordered that a child
S,
aged 9 years,
should
be made the
subject
of a care order in favour of the London Borough of
Sutton
('LBS').
Re
W
is an appeal against the order of HHJ Coffey dated 16 June 2022
whereby
she
ordered that a girl
W,
aged 15 years,
should
be made the
subject
of a care order in favour of Kent County Council ('KCC').
Background Facts in
Re
S
S,
a boy, is now aged 9 years and is one of two children of GSt ('
S's
mother') and GSs ('
S's
father').
S
has a younger brother, M.
S
has a number of complex needs including ASD, ADHD and a lack of awareness of danger together
with
significant
behavioural issues.
- In June 2017, the parents
separated
after an incident
when
S's
father
spat
and grabbed
S's
mother
whilst
he
was
drunk. In
September
2017, he turned up at the family home drunk and banging on the door and the police
were
called. Thereafter,
S's
mother has had exclusive care of
S
and M
without
the necessity of a court order in her favour. On 5 August 2020 there
was
a further incident
when
the father banged and kicked the door and dented
S's
mother'
s
car door. This incident
resulted
in a conviction for damage to property.
S's
father
suffers
from low mood, anxiety and depression and misuses alcohol and drugs. He has also been assessed to have a low average full
scale
IQ of 80.
S's
father
struggles
to engage in assessments and is unreliable in exercising contact
with
S,
although he has never
sought
to interfere
with
or undermine
S's
mother'
s
care of either
S
or M.
- Over time,
S's
behaviour became increasingly challenging and on 20 January 2021
S's
mother called the child practitioner
saying
she
was
struggling
to cope and
would
like
S
to be accommodated. In
response
to this, LBS'
s
support
for
S's
mother
was
increased to 59 hours a
week.
On 10 March 202, both
S
and M
were
made
subject
to Child Protection Plans under the category of emotional harm, the harm anticipated being that to
S
in the event that he became
separated
from his family as a consequence of being accommodated by the local authority.
- Notwithstanding this additional daytime
support,
S's
mother
reached
the
stage
where
she
knew
she
could no longer manage to look after
S
at home. A phased transition of
S
to LH a
residential
unit
started
on 28 April 2021 and on 9 May 2021
S
moved there entirely.
S
has
remained
at LH ever
since.
He is
settled
and making excellent progress
within
the confines of his disabilities. LBS initially approached this placement as one of
respite
care
with
a view to
S
returning
to the care of his mother in due course.
S's
mother, having done all
she
possibly could to care for
S
for the previous 8 years, had made
what
she
described as the 'agonising decision' to
request
accommodation for
S
and
she
knew that
rehabilitation
was
simply
not an option, guilty and distressed though
she
felt about having
reached
that conclusion.
S's
mother accordingly told LBS on 18 May 2021 that
she
could not envisage caring for
S
as he grows older and
stronger,
but that
she
did not
want
LBS to issue care proceedings.
- Unfortunately,
S's
father
was
not told until 4 May 2021 that
S
was
moving to a
residential
placement. He
was
initially against
such
a placement and put forward
what
was
clearly an unrealistic proposal, that he
should
care for
S
with
support.
The father
soon
realised
that
S
had
settled
well
at LH and that his needs
were
being met. Therefore, a few
weeks
later he filed a
statement
in the care proceedings
saying
that he understood the need for and
would
now
sign,
a
section
20 agreement. This he did on 2 July 2021.
S's
father has not, at any time in the intervening 16 months,
sought
to
withdraw
that agreement, nor has he given anyone cause to think that he may do
so.
- LBS issued care proceedings on 22 June 2021. This
was
said
to be as a
result
of their concern that
S's
mother
was,
as they perceived it, unable to 'commit' to
S's
return
home or alternatively to a timescale for his
rehabilitation.
For
reasons
that are unknown, the care proceedings
were
issued in
relation
to both
S
and his younger brother M. The care plan
was
for an interim
supervision
order
with
a view to
rehabilitation
of
S
to his mother'
s
care or alternatively, an interim care order. No interim care order
was
made and
S
has continued to be accommodated under
section
20 throughout the proceedings. On 17 August 2021, LBS
sensibly
withdrew
the proceedings in
relation
to M.
Within
the ensuing care proceedings, Dr Tammy
Surgenor,
an independent clinical psychologist,
was
appointed by the court to assess
S
and each of the parents. Dr
Surgenor
set
out
S's
complex presentation, highlighting his
significant
needs in terms of his emotional and behavioural
regulation.
Dr
Surgenor's
expert opinion
was
that
S
is 'extremely challenging' to parent and that it
was
difficult to envisage how a lone carer, even
with
a high level of
support,
would
be able to meet his needs.
She
concluded that it
was
difficult to envisage how those needs could be met by an individual person or
within
an environment
where
carers
were
not
specifically
trained to understand and manage his needs.
S,
she
said,
'
requires
a
specialist
residential
unit
with
a high
staff-child
ratio in order to
reduce
the compassion fatigue that
would
be associated
with
caring for a child
with
such
complex needs'.
- Dr
Surgenor
recommended
weekly
contact
with
S's
mother moving to overnight
stays
and monthly
supervised
contact
with
S's
father,
with
that level of contact to be
reviewed
if he could demonstrate that he could attend consistently.
- LBS filed its final
statement
in the care proceedings on 4 April 2022.
Within
the
statement
is a balance
sheet
which
considered the factors for and against
S
remaining
accommodated under
section
20. One of the factors against
such
an outcome
was
said
to be that '
section
20 is not an effective or appropriate mechanism for children
requiring
long term care and care planning and does not provide adequately for emotional or practical
security
or
stability
needs of a child or those caring for that child on a day-to-day basis and into the future'.
- The court also had the benefit of a Cafcass
report.
The Cafcass officer, Ms Bedu, considered the totality of the evidence
which
included a parenting assessment carried out by an independent
social
worker,
Ms Cole. It is
recorded
that Ms Cole had told Ms Bedu that had it not been for the case law
regarding
the misuse of
section
20,
she
would
not have been certain about the need for a care order. Ms Cole'
s
ambivalence
was
doubtless due to her view that
S's
mother
was
an 'extraordinary mother
who
has fought for many years to get the
support
her
son
needs'.
She
was,
she
said,
confident that
S's
mother
would
not act in any
way
that
would
undermine
S's
placement.
So
far as
S's
father
was
concerned, Ms Bedu had observed that despite his inconsistent contact
with
S,
when
contact did take place, it
was
of good quality and loving and that
S
responded
well
to his father'
s
care. Dr
Surgenor,
who
had also observed a contact
session,
referred
to
S's
father as being 'patient and tolerant, affectionate' and 'accepting of feedback' as to how best to connect
with
S.
Ms Bedu concluded that 'quite possibly' the main risk from
S's
father
would
be that 'he
would
disappear from his life altogether'. Ms Bedu
sounded
a proper note of caution, however,
saying
that just because
S's
father had not undermined the placement
so
far, that did not mean that he
would
not do
so
in the future.
- LBS accepted the
recommendation
of Dr
Surgenor
and no longer
sought
the
rehabilitation
of
S
to his mother. Nevertheless, they continued
with
the care proceedings. The case
summary
prepared for the judge by LBS argued that
section
20
was
not appropriate on a long-term basis for the child. Given that neither parent felt able to assume
S's
care in the foreseeable future and given
S's
age, it
was,
the case
summary
said,
'essential' that the local authority
share
parental
responsibility.
- Unfortunately, the balanced and moderate assessment by the Cafcass officer, as
set
out above, unaccountably became
significantly
elevated in the position
statement
filed on behalf of the Guardian and
was
expressed in terms
which
were
then adopted by and undoubtedly influenced the judge. The analysis in the Guardian'
s
report
had identified that (i) the father, far from undermining the placement, had been
wholly
supportive
of it, but this did not mean his position
would
not change in the future and (ii) the contact,
whilst
taken up erratically,
was
of good quality
when
it took place. The position
statement
elevated this assessment, inaccurately
saying
that the Guardian considered that there
was
a '
significant
risk' that
S's
father might 'disrupt the placement' in the future.
- The matter came before the judge on 24 June 2022. The care plan
was
agreed, namely that
S
would
remain
at LH. The parents argued that the threshold criteria
were
not
satisfied,
but that in any event there
should
not be a care order made in favour of LBS.
- The judge found the threshold to be
satisfied
on the basis that
S
was
beyond parental control. There is no challenge to that decision.
- The judge thereafter
went
on to make a care order. The judge rightly
reminded
himself that the fact that the threshold has been met does not mean that it is necessarily appropriate to make an order. The judge proceeded to go through the
welfare
checklist noting that neither parent
was
putting themselves forward to care for
S.
- The judge then moved on to consider the 'no order' principle found at
section
1(5) CA 1989, namely that the judge
shall
not make an order 'unless it considers that doing
so
would
be better for the child than making no order at all'.
- Although the judge noted the
submission
made on behalf of the mother that there
was
no evidence to
suggest
that either parent
would
withdraw
their consent to the
section
20 order, he
went
on to
say,
'that is not
really
quite right because
what
the Guardian
says,
actually, is that
she
considers there is a
significant
risk that [
S's
father] might
withdraw
his
support
in the future'. The judge continued to
refer
to the fact that the father is 'unpredictable' and that given his unreliability in attending contact, 'it may be that the local authority
will
need to have parental
responsibility
in order to
regulate
that looking ahead'. The judge concluded that it
was
in the best interests of
S
to make a care order and not in his best interests
simply
to
say
that matters
should
continue as they have under
section
20.
- The grounds of appeal can be
summarised
as follows:
i) The judge
wrongly
concluded that a
section
31 CA 1989 order
was
necessary and proportionate on the basis that there
was
a '
significant
risk' that
S's
father may
withdraw
his
support
for
section
20 accommodation in the future,
S's
father has been difficult to contact and communicate
with
and there have been contact difficulties in the past.
ii) The judge erred
when
stating
that the issue
was
'do the local authority need to
share
parental
responsibility?'.
iii) The judge attached excessive
weight
to the certainty that
would
be provided by a care order. He failed to express a view as to
whether
section
20 CA 1989 orders could be used for long term accommodation.
iv) Judicial guidance
would
be of benefit as to the test to be applied
where
it is
submitted
that the
section
1(5) CA 1989 'no order' principle
should
be adopted in preference to
section
31.
Background facts in
Re
W
W
was
adopted by KW ('
W's
mother') and GW ('
W's
father') in 2008
when
she
was
a little over a year old.
She
has a complicated diagnosis of ASD, ADHD, ARND (alcohol
related
neurodevelopmental disorder), FASD (foetal alcohol
spectrum
disorder), attachment disorder, dyspraxia, dyslexia,
sensory
processing difficulties and bladder bowel dysfunction.
Whilst
her early years
with
her parents largely
went
well,
W's
behaviour began
significantly
to deteriorate
when
she
entered puberty. There
were
a number of incidents of aggressive and violent behaviour by
W
towards her family members, but most particularly towards her mother.
- The devotion and dedication of
W's
parents, both at this time and continuing, has been commented upon by all
who
have had dealings
with
them. Both parents have been courageous in facing the challenges presented to the family as a consequence of
W's
various disabilities, exemplified by their engagement in various forms of family therapy. In 2020, in order to give her
space
away from the family,
W
was
enrolled in a
residential
school,
coming home at the
weekends.
- Unhappily for all concerned, the
relationship
between
W
and her mother continued to deteriorate and it became clear to both the parents and to
W
that they could no longer live under the
same
roof. On 7
September
2021,
W's
father,
with
the agreement of both
W's
mother and
W,
signed
a
section
20 agreement and on 8 October 2021,
W
was
placed
with
her current foster carers.
W's
placement is intended to be long term.
She
is
settled
and happy there. The foster carers have the day-to-day
responsibility
for
W.
Over the ensuing 14 months,
W's
parents and the foster carers have
worked
together
with
considerable
success
and greatly to
W's
benefit.
- Following her
reception
into care, contact
was
initially arranged only between
W
and
W's
father (and grandparents) due to the conflict between
W
and her mother.
W
has now
started
to
see
her mother again and on 11 June 2022
she
had overnight contact
with
both parents.
- The parents initially agreed to the making of a care order but, having had the opportunity to take legal advice and having
spoken
to other adopters, they notified the local authority that they
would
object to the making of a care order. They
wished,
they
said
to 'parent from a distance' under a
s20
arrangement.
- On 9 March 2022, KCC made an application for a care order. The first hearing took place on 4 April 2022. KCC did not apply for an interim care order. The parents accepted, and the court agreed, that the threshold criteria in
section
31
were
met on the limb of 'beyond parental control'. The care plan put before the court
was
one
which
had been agreed between KCC, the parents and
W's
Children'
s
Guardian in advance of the hearing.
- On 16 June 2022, the final hearing came before HHJ Coffey. KCC'
s
application for a care order
was
supported
by the Guardian. Both parents opposed the making of a care order on the basis that the arrangements under the
section
20 CA 1989 agreement
should
continue and that a
section
31 order
was
neither necessary nor proportionate.
- The judge made a care order
saying
in
summary
that
section
20 CA 1989 orders
should
not be used as a long-term tool and that
where
W
was
to be in foster care 'in the medium to longer term' 'there is a need for a care order and that in
such
circumstances it is necessary and proportionate to make a care order notwithstanding the very positive
way
everyone concerned in this case has been
supporting
[
W]
in her placement'.
- The judge could
see
the 'positives' in KCC having parental
responsibility
from the perspective of
W
'testing boundaries'.
- The judge
was
mindful of the fact that there had been a number of changes of
social
worker
and
wished
to protect the role of the parents
saying:
"I
suggested
at the outset…
setting
out
really
clearly in terms of a
recital
to any order made today as to how parental
responsibility
should
be exercised
so
that both the local authority and any future
social
worker
and the parents are
really
clear on how that
will
be managed in circumstances
where
there are collaborative, cooperative and engaged parents".
- In the light of this, counsel agreed the terms of the order
which
included the
recitals
set
out below.
When
the
recitals
were
drafted and agreed by Counsel they
were,
this court
was
told, conscious of the need to
respect
the authority of the local authority once a care order has been made and therefore to avoid purporting (by
way
of the
recitals)
to impose conditions on KCC as to its exercise of its parental
responsibility
(
see
In
Re
T (A Child) (Care Proceedings: Court'
s
Function) [2018] EWCA Civ 650; [2018] 4
WLR
121).
"E. The Court, in making a Care Order for [
W],
wishes
the parents to be
reassured
as to how the Local Authority
will
exercise parental
responsibility
and the following matters are
recited:
F. The Local Authority
remains
committed to
working
collaboratively and in partnership
with
the parents.
G. [
W]
will
be
subject
to 6 monthly CLA
Reviews,
to
which
the parents
will
continue to be invited.
H. The parents
will
be consulted in
respect
of all aspects of care planning (including education and health) for [
W]
and invited to meetings.
I. The parents
will
receive
periodic updates
regarding
[
W]
and are able to access
weekly
reports
by the foster carer'
s
social
worker.
J. [
W]
will
continue to have the oversight of her Independent
Review
Officer.
K. In the event of disagreement as to decision-making for [
W],
the parents are able to contact the Team Manager and/or Independent
Reviewing
Officer or utilise the formal complaint process".
- The grounds of appeal filed following the making of the care order can be
summarised
as follows:
i) The judge erred in determining that the proper use and purpose of
section
20 CA 1989 is for
short-term
and temporary accommodation
when
the provisions of the CA 1989 do not
restrict
or qualify the use of
section
20 CA 1989 accommodation in
such
a
way.
ii) Having determined the above, the judge erred in attaching
substantial
weight
and
reliance
on that determination as the primary
reason
for making a care order.
iii) The judge erred in considering that
she
was
able to influence or fetter the local authority'
s
exercise of its parental
responsibility
during the care order or, in the alternative, placed
weight
on this consideration as part of her
welfare
and decision-making evaluation.
iv) The judge erred in concluding that the no order principle and least interventionist approach
was
rebutted
in the circumstances of this case and in failing to identify, or identify properly, the
welfare
benefits to the child of her parents
retaining
sole
parental
responsibility.
The comparative roles of
section
31 care orders and
section
20 accommodation orders
- Before moving on to consider the merits of each of the two appeals, it is helpful to understand not just the limits of a
section
20 order, but also how it differs from a care order. Miss Fottrell KC
summarised
it by
saying
that a
section
31 care order is the more draconian order and more interventionist. This is undoubtedly the case as not only does a local authority acquire parental
responsibility
pursuant to
section
33(3)(a) CA 1989
when
a care order is made, but also under
section
33(3)(b)(i) CA 1989 the local authority may 'determine the extent to
which
a parent may meet his or her parental
responsibility'
for the child in question. In other
words,
as it
was
put in argument,
when
a care order is made, the local authority may (by
section
33(4) CA 1989), in order to '
safeguard
or promote the child'
s
welfare',
'trump' the parents
whenever
there is an issue between them. By contrast, as Ms Fottrell
says,
a
section
20 accommodation order facilitates partnership and
where
it is functioning
well
under an agreed care plan, not only is the making of a care order not necessary but it is disproportionate. To make a care order in
such
circumstances
would
not
she
submitted,
pursuant to
section
1(5) CA 1989, be 'better for the child than making no order at all.'
- In deciding
whether
to make a care order, the
section
1 CA 1989 paramountcy principle applies and the court must also have
regard
to the
welfare
checklist found at
section
1(3) CA 1989. Finally, the court must carry out a proportionality cross check before making a care order.
- The
reasons
for the difference between the two orders is plain to
see;
unlike a
section
20 accommodation order, a court cannot make a care order unless the threshold criteria are
satisfied
under
section
31(1) CA 1989:
a. "That the child concerned is
suffering,
or is likely to
suffer,
significant
harm; and
b. That the harm, or likelihood of harm, is attributable to –
i. The care given to the child, or likely to be given to him if the order
were
not made, not being
what
it
would
be
reasonable
to expect a parent to give to him; or
ii. The child'
s
being beyond parental control."
- A finding that the threshold criteria are
satisfied
does not automatically lead to the making of a care order (or a
supervision
order) and in conducting its
welfare
analysis the court has to have in mind the 'no order principle'
which
applies under
section
1(5) CA 1989.
- Further, the fact that the threshold criteria are
satisfied
does not necessarily mean that the parents are culpable in any
way.
In each of the two appeals
with
which
the court is concerned, the threshold
was
satisfied
on the basis that the 'harm or likelihood of harm'
was
attributable to 'the child'
s
being beyond parental control' in the circumstances
set
out above.
Section
17 CA 1989 is concerned
with
the 'provision of
services
for children in need, their families and others'.
Section
17 CA 1989 has played no part in the
submissions
made in these appeals. It is
worth
noting, however, that care proceedings do not necessarily provide the only route by
which
children
such
as
S
and
W
may be assisted. Under
Schedule
2 para.7(a)(i) every local authority is
required
to take all
reasonable
steps
to
reduce
the need to bring proceedings for care or
supervision
orders and by
section
17(6) the
services
provided may, in certain circumstances, include the provision of accommodation.
Section
20 CA 1989,
with
which
this appeal is concerned, provides for the provision of accommodation:
"(1) 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–
…
(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.
(2)…
(3)…
(4) A local authority may provide accommodation for any child
within
their area (even though a person
who
has parental
responsibility
for him is able to provide him
with
accommodation) if they consider that to do
so
would
safeguard
or promote the child'
s
welfare."
- The parameters of
section
20 are found
within
the
section
itself and can be
summarised
as follows:
i) Parents may ask the local authority to accommodate a child as part of the
services
they provide for children in need:
Williams
& Another v London Borough of Hackney [2018] UKSC 37, [2018] AC 421 at para. [41].
ii) A local authority cannot provide accommodation if any person
who
has parental
responsibility
and is able to provide or arrange for accommodation to be provided for the child objects:
section
20(7).
iii) There is no
statutory
limit upon the duration of an order for accommodation made under
section
20. That this is the case
was
confirmed in
Williams
v Hackney LBC at para.[49].
iv)
Whilst
a person
with
parental
responsibility
may not
surrender
or transfer any part of their parental
responsibility,
they may delegate it by arranging for
some
or all of it to be met by one or more persons on their behalf:
section
2(9) CA 1989. In agreeing to the making of a
section
20 order a parent is '
simply
delegating the exercise of her parental
responsibility
to the local authority for the time being':
Williams
v Hackney LBC at para. [39].
v) Any person
with
parental
responsibility
may at any time
remove
the child from the accommodation:
section
20(8).
vi) If there is a child arrangements order naming a person
with
whom
the child is to live and that person agrees to the child being accommodated, then no other person
with
parental
responsibility
may either object to the placement under
section
20(7) or
remove
the child from the accommodation under
section
20(8).
Williams
and another v London Borough of Hackney
- The leading authority on the use of
section
20 CA 1989 is
Williams
v Hackney LBC in
which
Baroness Hale'
s
judgment considers the limits of a local authority'
s
powers and duties to provide accommodation for children in need under
section
20 CA 1989.
- Baroness Hale
set
out the critical distinction at para [1] of her judgment
saying
that
whilst
in practice the distinction between various categories of
service
is not always clear, it is in law: 'Compulsory intervention in the lives of children and their families
requires
the
sanction
of a court process. Providing them
with
a
service
does not'.
- In her judgment, Baroness Hale conducted a comprehensive
review
of the
scheme
of
section
20, in particular at para [15] quoting from the Government
White
Paper, The Law on Child Care and Family
Services
(1987) (Cm 62),
which
said:
"…the provision of a
service
by the local authority to enable a child
who
is not under a care order to be cared for away from home
should
be
seen
in a
wider
context and as part of the range of
services
a local authority can offer to parents and families in need of help
with
the care of their children.
Such
a
service
should,
in appropriate circumstances, be
seen
as a positive
response
to the needs of families and not as a mark of failure either on the part of the family or those professionals and others
working
to
support
them. An essential characteristic of this
service
should
be its voluntary character, that is it
should
be based clearly on continuing parental agreement and operate as far as possible on a basis of partnership and co-operation between the local authority and parents". [My italics]
- Baroness Hale
went
on to
review
the case law in
relation
to
section
20 commenting at para. [32] that in the cases
she
was
considering 'the main focus of the court'
s
criticism
was
that the local authority had delayed for a long time after accommodating the child under
section
20 before issuing proceedings for a care order'. Baroness Hale
went
on to identify the various problems
which
had arisen in these types of case before going on at para [34] to quote
with
approval Hedley J'
s
observation in Coventry City Council v C [2013] 2 FLR 987 at paras [25] and [26]:
"the emphasis in Part III is on partnership … any attempt to
restrict
the use of
section
20 runs the risk both of undermining the partnership element in Part III and of encroaching on a parent'
s
right to exercise parental
responsibility
in any
way
they
see
fit to promote the
welfare
of their child."
- Having
set
out a total of nine points in
relation
to the proper use and effect of orders under
section
20 between paras [38] and [49] Baroness Hale concluded her analysis by
saying
that:
"50. Thus, although the object of
section
20 accommodation is partnership
with
the parents, the local authority have also to be thinking of the longer term. There are bound to be cases
where
that
should
include consideration of
whether
or not the authority
should
seek
to take parental
responsibility
for an accommodated child by applying for a care order".
Reverting
to the improper use of
section
20, Baroness Hale emphasised at para [51], that '
section
20 must not be used in a coercive
way;
if the
state
is to intervene compulsorily in family life, it must
seek
legal authority to do
so'.
- It is common ground between the parties to this appeal that cases concerning the operation of
section
20 in place of a
section
31 care order have to date emphasised the provision of accommodation for a child under
section
20 as a
short
term or temporary
solution.
In
Worcestershire
County Council v AA [2019] EWHC 1855 (Fam), Keehan J
suggested
the following as a (non-exhaustive) list of examples of cases in
which
it may be appropriate for the local authority to accommodate a child under
section
20
without
making an application under
section
31 CA for a care order (at [12]):
i) a young person
where
his/her parents have
requested
their child'
s
accommodation because of behavioural problems and
where
the parents and
social
services
are
working
co-operatively together to
resolve
the issues and to
secure
a
return
home in early course;
ii) children or young people
where
the parent or parents have
suffered
an unexpected domestic crisis and
require
support
from
social
services
to accommodate the children or young people for a
short
period of time;
iii) an unaccompanied asylum-
seeking
child or young person
requires
accommodation in circumstances
where
there are no grounds to believe the threshold criteria of
section
31 CA 1989 are
satisfied;
iv) children or young people
who
suffer
from a medical condition or disability and the parent or parents
seek(s)
respite
care for a
short
period of time; or
v) a
shared
care arrangement between the family and the local authority
where
the threshold for
section
31 care is not met, yet
where
support
at this intensive level is needed periodically through a childhood or part of a childhood.
Whilst
none of the examples given by Keehan J match precisely the facts in the two appeals before this court, the common thread (
save
with
regard
to asylum
seekers)
is the need by parents
who
are not a fault to
secure
longer term
support
and
services
by
way
of accommodation
without
the need for a
section
31 order in circumstances
where
they
will
work
in partnership
with
the local authority.
Recently,
in In the matter of H-
W
(Children) [2022] UKSC 1451, Dame
Siobhan
Keegan considered an appeal concerning the proportionality of care orders. The family
with
whom
she
was
concerned
were
opposing the making of a care order
with
a care plan
which
would
lead to the
removal
of three children from the family home
with
a view to placing them in
separate
long term foster placements. Dame
Siobhan's
observations at para.[45] are equally apposite to these appeals:
"45. The effect of a care order is to vest parental
responsibility
for the child in the local authority:
section
33 Children Act 1989. Thereafter, the parents can exercise their parental
responsibility
only to the extent that the local authority determines. As this court explained in In
re
B, that intrusive power clearly engages the article 8 rights of the parents and children. It follows that a care order can only be made, even if the
statutory
threshold criteria under
section
31(2) are met, if
such
an order is necessary in a democratic
society
for the protection of the child(
ren)'s
right to grow up free from harm. That means that the order can be made only if it is proportionate to the needs of the
situation.
See
especially Lord
Wilson
at paras 32-34, Lord Neuberger of Abbotsbury at paras 73-79 and Baroness Hale of Richmond at paras 194-198. And it follows also that, as Lord
Wilson
put it at para 45, a judge considering a care order has an obligation not to act incompatibly
with
the article 8 rights involved. In truth, the obligation under article 8 ECHR,
so
clearly
recognised
in In
re
B does no more than
re-state
the longstanding proposition of English childcare law that the aim must be to make the least interventionist possible order, but the emphasis given to the issue in In
re
B
was
overdue".
- This court must therefore consider in each case
whether
the judge, in granting the applications for a care order in
respect
of each of these two children, did indeed 'make the least interventionist order possible'.
The Public Law
Working
Group
- In March 2021 the Public Law
Working
Group,
which
was
established by the President of the Family Division
Sir
Andrew McFarlane ('the President') and
which
was
chaired by Keehan J published its
report
('PLWG
report').
The
report
not only analysed current issues but also gave best practice guidance concerning, inter alia,
section
20 orders.
Simultaneously
with
the publication of the
report,
the President issued a 'message' on 1 March 2021 in
which
he expressed the view that the
recommendations
made
were
'both
sound
and necessary'.
- In its analysis of the current use of
section
20 orders, the PLWG
report
first
referred
to the judgment of
Sir
James Munby P in
Re
N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2
WLR
713 ('
Re
N'). This
was
a
substantial
appeal about adoption.
Sir
James at para. [157] under the heading of 'Other matters:
section
20 of the 1989 Act',
said
that too often arrangements under
section
20 are allowed to continue for far too long and, having
set
out future good practice in
relation
to the obtaining of consent, he
went
on at para [171] to
say:
"171. 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.
Judges
will
and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities
which
use
section
20 as a prelude to care proceedings for lengthy periods or
which
fail to follow the good practice I have identified, can expect to be
subjected
to probing questioning by the court. If the answers are not
satisfactory,
the local authority can expect
stringent
criticism and possible exposure to
successful
claims for damages."
- The PLWG
report
concluded that these trenchant observations had '
significantly
contributed to the decline in the (appropriate) use of
s20'.
In
summarising
the current
situation,
the PLWG
report
went
on at para [232] to
say:
"In
summary,
s20,
contains important
statutory
provisions and the (appropriate) use of these provisions has
sharply
declined. This may have contributed to the increase in public law applications in circumstances
where
the use of
s20
may have better met the needs of the
subject
children and their families. There is an urgent need to
reverse
the trend in the decline of the appropriate use of these provisions"
- This analysis
was
followed up by a number of
recommendations,
the first of
which,
at para [234],
said:
"There
should
be no imposition of time limits for the use of
s20.
There are no legal time limits in place. The imposition of time limits
will
be counterproductive. However, it is
recommended
that,
where
possible, the purpose and duration of any
s20
accommodation is agreed at the outset and
regularly
reviewed".
- The accompanying 'Best Practice Guidance' is found at Appendix G of the PLWG
report.
Of
relevance
to the present appeal is para [18]
which
repeats
the need to identify the context and purpose for
which
section
20 is being considered and goes on to
say
that 'this may be
short
term accommodation during a period of assessment or
respite;
alternatively, it may be a longer period of accommodation, including the provision of education or medical treatment'.
- I am conscious of the need to be cautious of the use made of
such
guidance as a guide to the interpretation of the
statute
and
remind
myself that it can only ever be of '
some
persuasive authority' (Ellis v Bristol City Council [2007] EWCA 685; [2007] 1
WLR
1407 at [27]). The guidance
with
which
we
are concerned is not however
strictly
in
relation
to
statutory
interpretation. The
statute
is unambiguous; there is no time limit on the length of a
section
20 order. Rather, the guidance goes to the proper use of
section
20 orders by building on and fleshing out, the observations of Baroness Hale in
Williams
v Hackney LBC. For my part, I can
see
no inhibition on a
section
20 order being made in appropriate circumstances 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.
- Finally, I am of the firm view, in common
with
Ms Fottrell
who
appears on behalf of
S's
mother, that judicial guidance from this court
would
be of little benefit. In my judgement, the
statute
is clear in its terms; the
Supreme
Court have given careful consideration to the role of
section
20 in
Williams
v Hackney LBC and the PLWG has only
recently
given detailed consideration to
section
20 against the backdrop of public law proceedings as a
whole.
These
strands
together
should
serve
to disabuse all those involved
with
the provision of
services
for children in need of continuing
support
of the notion that a
section
20 order can only properly be utilised to provide
short
term accommodation for a child.
- Turning then to the approach and consequent decisions of the two judges in the appeal
with
which
the court is concerned.
Discussion of the decision in
Re
S
- In his judgment, the judge
said
at para.[25] that the Guardian considered that there
was
a '
significant
risk' that the father
would
withdraw
his consent in the future, the judge also
relied
on the father'
s
initial
reluctance
to
sign
the
section
20 accommodation papers in order to conclude that there
was
a
significant
risk that the father
would
withdraw
his consent:
"It is because I consider the Local Authority do need to
share
parental
responsibility
that I am making this order. I consider they do need to
share
parental
responsibility
because I accept that there is a
significant
risk, on the evidence, that the father may
withdraw
his
support
in the future. I accept that the father is
somebody
who
is unpredictable and has been difficult to contact and communicate
with.
Thirdly I accept that there have been
real
difficulties in the past and it may be necessary to
regulate
contact in the future".
- The judge did not fall into the trap of proceeding on the basis that a
section
20 order
should
only be made for a limited duration and carefully considered
whether
an order
should
or
should
not be made on the facts of the case. He did however, in my judgement, fall into error in his assessment of the risk presented by the father to the
stability
of
S
and to his placement. This in turn
resulted
in his making
what
was
in my view, a disproportionate order.
- As
was
rehearsed
by Dame
Siobhan
Keegan in In the matter of H-
W
at para.[52], 'It is necessary as a matter of law for the court
when
asked to decide
whether
to make a care order to consider: (a) the nature and likelihood of risk of harm arising; and (b) the consequence of harm, if
suffered'.
- In my judgement,
whilst
the father'
s
mental health and addiction issues
would
undoubtedly have presented considerable risk factors had
S
been living at home and/or
S's
mother failed to demonstrate an ability to protect
S
from the consequences of those difficulties, the
situation
here is very different. The father has never interfered in the care of
S
both
when
he
was
living at home and
since
he has lived at LH. True it is that, for a period of
some
weeks
after
S
went
to live at LH and in circumstances
where
on their own admission, LBS had failed properly to keep him informed,
S's
father unhelpfully declined to
sign
the
section
20 accommodation forms.
Since
he
signed
the forms, however, there has never been any hint that he may
withdraw
his consent. It
should
be
recollected
that the Guardian, far from
saying
there
was
a '
significant
risk' that the father
would
withdraw
his consent, felt the most likely risk
was
that the father
would
disappear from
S's
life altogether (although
she
realistically
said
in
relation
to the risk that he might
withdraw
his consent in the future, 'never
say
never').
- The judge also
relied
on the father'
s
unpredictability and the fact that he is difficult to contact. Both of these observations are undoubtedly the case, but
when
thinking of the consequences of these features, in
reality
they
relate
to the risk of the father disengaging from the LBS and failing to come and visit
S
as opposed to disrupting his placement.
- In my judgement, the risk identified by the Guardian in her
report
(as opposed to that as categorised in the Guardian'
s
position
statement)
does not lead to the making of a care order being a proportionate
response
to the identified risk. Even
when
taken together
with
the father'
s
unpredictability in
relation
to attending contact. This is all the more the case
when
considered against the backdrop of the mother'
s
unimpeachable behaviour and the fact that
S
is
secure
in
residential
care. There is nothing in the evidence to justify
restricting,
as a care order inevitably
would,
the mother'
s
exercise of parental
responsibility.
- It is common ground that the attention of the judge
was
not drawn to
section
20(9)(a) CA 1989
which
would
have had the effect of depriving the father of the ability to
withdraw
his consent to the accommodation order in the event that there
was
a 'lived
with'
order made in favour of
S's
mother.
- The court
was
told that the father always has been and
still
would
be prepared to consent to the making of
such
an order if it
would
provide LBS
with
additional
reassurance.
Counsel on behalf of LBS
submitted
that
such
an order could not be made in circumstances
where
a child
was
already in
residential
care. For my part, I do not
see
why
not.
What
if for example, the
residential
unit
was
a
specialist
residential
unit
where
the child in question
returned
to a parent at
weekends
or during
school
holidays? If the parents
subsequently
separated,
surely
then a lived
with
order could be made to determine
with
whom
the child lived
when
not at the unit? This point
was
not however fully argued before the court and it is unnecessary for the purposes of the appeal to go beyond this preliminary view.
Discussion of the decision in
Re
W:
- The focus of the appeal in
relation
to
Re
W
is
whether
the judge
was
wrong
to approach the use of
section
20 on the basis that it is intended to be used on a 'more
short-term
basis'. The judge carefully noted that there is, to date, no authority on the long-term use of
section
20 cases '
where
there is full collaboration'.
She
considered the PLWG
report
but concluded that it
was
looking at a different type of case. The judge
was
reinforced
in that view by the fact that the Independent
Reviewing
Officer from KCC also believed that a
section
20 order
was
a
short-term
order. The judge also had in mind that, given
W's
history of 'very troubling behaviours', there
was
likely to be challenging times ahead in her teenage years
which
would
require
'the ongoing exercise of parental
responsibility
and boundary
setting'.
Reading
the judgment as a
whole,
it is clear that the judge
was
heavily influenced by her belief that
section
20 orders
should
only be used as a
short-term
measure. That error led the judge to approach the risk and proportionality exercises
with
the balance too heavily
weighted
in favour of the making of a care order. The judge'
s
discomfort
with
making
such
an order against a factual background
so
very
removed
from the earlier case law
was
clearly
reflected
in her
request
that the
recitals
set
out above
should
be included in the order. These
recitals,
even after having been 'carefully crafted by counsel', came perilously close to purporting to dictate the manner in
which
the local authority'
s
care plan
was
to be implemented (
see
Re
T para.[38]).
- In my view,
recitals
of this nature have no place in an order as they either
simply
rehearse
the local authority'
s
duties as prescribed by
statute
and
regulation
or, if they go further, are in danger of
seeking
to maintain control after the care order is made. In
saying
that, I
should
be clear that I
wholly
endorse the observations of Peter Jackson LJ in
Re
T that it is not open to a local authority to decline to accept a court'
s
assessment of risk and
welfare.
- In her
short
ex-tempore judgment, the judge,
whilst
referring
to the no order principle, did not
refer
to the
welfare
checklist. Had
she
done
so,
it may be that a more detailed analysis of the
welfare
benefits for and against the making of a care order
would
have been in
sharper
focus.
- The judge in effect used as a makeweight the behavioural difficulties
which
she
suggested
may
well
arise during
W's
teenage years. I have thought carefully
whether,
notwithstanding the judge'
s
error of law in
relation
to the use of
section
20 orders, it
would
nevertheless be proportionate to make a care order to provide the local authority
with
the power under
section
33 CA 1989
which
would
allow it to limit the extent to
which
the parents might utilise their parental
responsibility
in the event that issues in
relation
to
setting
boundaries or challenging behaviour
should
arise in future.
- In my judgement, this concern
would
not justify the making of a care order. Upon the making of a
section
20 order the parents delegate the exercise of their parental
responsibility
to the local authority (
see
Coventry City Council v C, and
Re
N (Adoption Jurisdiction) above). In
reality,
in this case that delegation is to the foster carers. The
relationship
between the parents and the foster carers has been tried and tested over many difficult and challenging months. There is no evidence to
support
the judge'
s
speculation
that, given
W's
history, trouble may lie ahead of a type
which
will
necessitate the local authority having parental
responsibility
in order for her behaviour to be managed. The evidence before the judge
was
that
W's
mother has at every
stage
accepted advice, particularly in
relation
to the distressing issue of the
reintroduction
of contact as between herself and
W.
- Further, the Care Planning, Placement and Case
Review
(England)
Regulations
2010 rule 33(2) ('CPPCR')
requires
the local authority to
review
W's
case at intervals of not more than
six
months
regardless
of
whether
the placement is by
way
of a care order or under a
section
20 order. There is also power under CPPCR rule 33(3)(a) to carry out a
review
before
six
months if the Independent
Reporting
Officer
so
requests.
The considerations to
which
the local authority must have
regard
when
reviewing
a child'
s
case are
set
out in detail in CPPCR
Schedule
7. Those extensive
requirements,
which
include consideration of placement and contact arrangements, apply equally to
section
20 placements as to placements under a care order.
- It follows that,
whilst
KCC have delegated parental
responsibility
under
section
20 rather than
statutory
parental
responsibility
under
section
33 CA 1989, they do have delegated parental
responsibility
together
with
significant
input into the arrangements for a child in their care through the
review
process. Taken together, this allows them to be highly influential in any decisions
which
relate
to the
welfare
of
W.
In the unlikely event that these parents cease to co-operate or
wish
to act in a
way
which
is
regarded
as contrary to the best interests of
W,
KCC can issue care proceedings and apply for an interim care order
so
as to maintain her placement.
- In my judgement, the judge, through the use of the
recitals
recorded
on the face of the order, did her level best to protect the role of these irreproachable parents
within
what
she
regarded
as the confines of her jurisdiction. Had
she
not felt
so
constrained, it
seems
likely that
she
would
not have
regarded
a care order to have been a proportionate outcome. In order to have done
so,
she
would
have had to decide that, notwithstanding the excellent
working
relationship
between the foster carers and the parents, the risk of behavioural challenges on the part of
W
in the future
were
of a nature and extent that the local authority
would
need the
statutory
power under
section
33 CA 1989 to limit the parent'
s
use of their parental
responsibility.
- It follows that, in my judgement, the appeal on the ground that the judge had
sought
by the use of the
recitals
to influence or fetter the local authority'
s
exercise of parental
responsibility
will
be dismissed. The judge however fell into error in her approach to the use of
section
20
which
in turn impacted on her approach to the 'no order' principle. In those circumstances, the appeal against the making of a care order is allowed.
Conclusion and outcome
- In each of the appeals I have concluded that appeals against the making of a care order
should
be allowed. No party in either case have
suggested
that the matter
should
be
remitted
for
reconsideration.
It follows therefore that both of these children
will
remain
in the long-term placements provided by the
respective
local authorities under
section
20.
- I
would
simply
conclude by
saying
that each of these two cases must be viewed in the context in
which
they have come before this court, that is to
say
in
relation
to children
who
are
settled
in long-term placements
which
are meeting their
respective
needs in circumstances
where
both the placements and the accompanying care plans are
supported
by the parents. As the judge in
Re
W
observed, no court has hitherto considered the use of a
section
20 order in this type of
situation
and it is hoped that this appeal
will
have
served
to fill that gap. Nothing I have
said
should
on any view be taken to
seek
to undermine or dilute the
Supreme
Court'
s
decision in
Williams
v Hackney LBC.
Lord Justice Arnold:
- I agree.
Lord Justice
Warby:
- I also agree.