No damages for parents of children accommodated under the Children Act 1989 (Williams and another v London Borough of Hackney)
Deirdre Fottrell QC and Louise MacLynn of 1GC, and Christine Cooper of Field Court Chambers, examine the Supreme Court’s rejection of the appellant parents’ claim that, following the removal by police of their children under section 46 of the Children Act 1989 (ChA 1989), the respondent local authority’s accommodation of them under ChA 1989, s 20 had been unlawful.
Williams and another v London Borough of Hackney  UKSC 37,  All ER (D) 106 (Jul)
What was the background?
The case concerned the appellant’s claim for damages under the Human Rights Act 1998 (HRA 1998) on the basis that the respondent had unlawfully accommodated their children under ChA 1989, s 20. The appellants had eight children, aged from eight months to 14 years old. When their 12-year-old son alleged, after being caught shop-lifting, that his father had hit him with a belt, the police went to the family home, which they found to be ‘unfit for habitation by children’. The police therefore exercised their powers of protection under ChA 1989, s 46, and removed all eight children from the appellants’ care. This power could only be exercised for a maximum of 72 hours.
The appellants were arrested, interviewed and released on police bail. The bail conditions prevented them from having unsupervised contact with any of their children, to prevent interference with victims of crime.
The appellants attended the respondent’s offices with a view to the children returning home and signed a safeguarding agreement which did not set out their right, under ChA 1989, s 20(7), to object to the children’s accommodation or their right, under ChA 1989, s 20(8), to remove the children at any time.
At the end of the 72-hour period, the appellants asked the respondent to return their children but were told that they could not take them home. The appellants then gave the respondent formal notice of their intention to withdraw consent to the children’s accommodation. They agreed to a further ten days of accommodation so that plans could be made to return the children. The respondent confirmed that the appellants had improved the conditions of the family home and had formed a plan for the children to return. However, the bail conditions remained in place and the respondent formed the view that it could not return the children until the bail conditions were varied, which took some two months.
No care proceedings were ever commenced, and although the police initially charged the appellants, they later discontinued the criminal proceedings.
After pursuing complaints internally and with the Local Government Ombudsman, the appellants made a number of claims against the local authority and in particular claimed damages for breach of their rights un-der Article 8 of the European Convention on Human Rights (ECHR).
At first instance, the Article 8 ECHR claim was successful on the basis that the respondent’s interference with the appellants’ rights was not in accordance with the law and they were awarded £10,000 in damages each. The trial judge found that ‘the circumstances, combined with the inadequacies of the information conveyed, were such as to amount to the ‘compulsion in disguise ‘and that ‘such agreement or acquiescence as took place was not fairly obtained’. The accommodation of the children after the initial 72-hour period was therefore unlawful.
The respondent successfully appealed, the Court of Appeal finding that there had been a lawful basis for the children’s accommodation. The court held that there was no legal requirement for a local authority to obtain informed consent of parents to accommodation of children under ChA 1989, s 20, and that in any event, the bail conditions prevented the appellants from providing suitable accommodation for the children whether or not they consented to the children being accommodated by the respondent.
The appellants then appealed to the Supreme Court, the central issue being whether there was a lawful basis for the children’s accommodation under ChA 1989, s 20.
What did the Supreme Court decide?
The Supreme Court unanimously upheld the decision of the Court of Appeal, although for different reasons.
Giving the leading judgment, Lady Hale set out nine points of guidance in relation to the use of ChA 1989, s 20:
the starting point was parental responsibility (PR)—persons with PR could arrange for some or all of their PR to be met by others acting on their behalf, but their helpless submission in the face of asserted power did not amount to a delegation of PR or its exercise
it might be confusing to talk about consent to removal or accommodation—a parent agreeing to it was simply delegating the exercise of PR for the time being to the local authority, and any such delegation had to be ‘real and voluntary’
removing a child from the care of a parent was very different from stepping into the breach where a parent was not looking after a child—in the latter circumstances active consent or delegation of PR was not required, but powers exercised in such circumstances were subject to the parents’ right to object or to remove the child (ChA 1989, s 20(7) and 20(8)). As a matter of good practice, local authorities should inform parents of these rights and also of their other rights, including to know where the child was (ChA 1989, Sch 2, para 15)
parents could ask a local authority to accommodate their child and the local authority may have a power or even a duty to do so depending on the circumstances—this was a further example of the delegation of PR and again good practice indicated that parents should be informed of their rights and the local authority’s responsibilities
a local authority could not accommodate a child where a parent was willing or able to do so (ChA 1989, s 20(7)), and any debate about whether a parent was ‘willing or able’ could only be resolved in the context of court proceedings—if parents said they were willing or able to accommodate the child, the local authority could not accommodate the child against the parents’ wishes
the parental power to remove the child from accommodation was absolute, save where it was necessary to take steps to protect the child from being physically harmed—therefore, if parents unequivocally required the return of their children, the local authority had to return them or obtain the power to retain them either via the police or a court order
the parental right to object or to request return was qualified where court orders had been made determining where a child should live (ChA 1989, s 20(9) and 20(10)) but were otherwise unrestricted
there were separate provisions for children who had reached the age of 16 (see ChA 1989, s 20(3), 20(4), 20(5) and 20(11))
there was no time limit to ChA 1989, s 20 accommodation—however, local authorities had du-ties to children whom they were accommodating under ChA 1989 and various other regulations as well as a duty to act reasonably in general public law terms and to respect the children’s and parents’ rights under the ECHR
In this case, the Supreme Court held that, given the initial period of accommodation pursuant to the police powers of protection, the key question in this case was whether the appellants’ actions after the expiry of the police protection amounted to ‘an unequivocal request for the children to be returned’. The bail conditions themselves did not operate to give the respondent any greater powers than it had under ChA 1989, and so were not decisive.
The court found that in the appellants’ initial discussions with the respondent, it was difficult to construe them as having given a ‘clear objection’ to continued accommodation or an ‘unequivocal request’ for immediate return. Similarly, the court found that once the appellants’ solicitors had become involved, their correspondence did not amount to an objection to accommodation or an unequivocal request for the children’s return, and in fact, albeit with some reluctance, amounted to a delegation of the appellants’ PR until the respondent felt able to return them.
Importantly, the Supreme Court differed from the trial judge at first instance and was clear that PR could be delegated to a local authority without the parents being ‘fully informed’ as long as the parents’ action was voluntary.
The Supreme Court therefore followed the Court of Appeal’s conclusion that there was no legal requirement for local authorities to obtain parental consent to accommodate a child under ChA 1989, s 20, but found that where a parent was actively involved with a child, ChA 1989, s 20 accommodation could only be lawful if there was real and voluntary delegation of PR. The Court of Appeal emphasised that the word ‘consent’ was not contained in ChA 1989, s 20—however, nor were the words ‘real and voluntary delegation of PR’.
There is no requirement that local authorities give parents ‘full information’ before accommodating children under ChA 1989, s 20, but there would seem to be scope for debate about how much information parents should be given for their decision to be found to be genuinely voluntary.
The requirement for parents to ‘unequivocally’ request the return of their children to trigger the local authority’s obligation under ChA 1989, s 20(8) seems to add a gloss on the wording of the statutory provision itself and arguably makes it harder for parents to secure the return of their children, particularly if local authorities do not have to ensure that the parents are fully informed.
However, the Supreme Court appears to have ended the argument once and for all about whether a parent is ‘willing and able’, within the meaning of ChA 1989, s 20 (7), to care for a child who is accommodated—if parents say they are willing and able, even if there are bail conditions preventing their contact with the children, the local authority may not accommodate under ChA 1989, s 20 and can only do so either by way of police protection or a court order.
What are the practical implications of the judgment?
From a local authority perspective, the position in respect of ‘stepping into the breach’ where parents are not looking after, or offering to look after, a child remains the same—there is no need for active consent or delegation. However, where there are active parents involved with the child, the local authority must have a real and voluntary delegation of PR in order to lawfully accommodate. The most sensible way of evidencing this would appear to be in writing. While the provision of ‘full information’ is not strictly required, the Supreme Court has identified that it is good practice for a local authority to inform the parents of:
what it has done
their rights under ChA 1989, s 20 (7) and 20(8)
their other rights under ChA 1989, including to know the whereabouts of their child
its own responsibilities to the child
In some circumstances, the failure to provide information still runs the risk of a court finding that accommodation was not truly voluntary, and therefore not lawful.
In terms of returning children, local authorities are not required to do so unless a request is made in unequivocal terms. Local authorities will have to decide for themselves whether parents have reached this standard. There is no requirement that the request for return be in writing.
From the perspective of parents and those advising them, the key point is the requirement for parents seeking the return of their children to do so ‘unequivocally’. There will be times when doing so may lead to the initiation of court proceedings. However, as the Supreme Court notes, this is not necessarily a bad thing as there are obvious advantages for a child and the family—the child will have a guardian and representation, as will the parents, and the court may make orders for contact.
If there is any debate about whether parents are ‘willing or able’ to care for their child, they are entitled to say that the local authority must either return the child or issue proceedings. ChA 1989, s 20 cannot be relied upon to lawfully accommodate a child in such circumstances.
The Supreme Court also considered the methods of enforcement that are open to parents where a local authority refuses to return a child—simply removing the child, habeas corpus proceeding or relying on the Child Abduction Act 2004. Added to that list must remain the threat of action under HRA 1998, despite it ultimately not being successful in this case.
Deirdre Fottrell QC, Louise MacLynn and Christine Cooper appeared for the appellant parents in this case.
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