January 30th, 2017 by James Goudie KC

The Children Act 1989 (“CA 1989”) contains coercive powers.  Section 20, however, is not intended to, and does not create powers of compulsion.  Section 20 falls within Part III of CA 1989, the essence of which is an emphasis on the assumption of responsibility for care and the provision of accommodation in circumstances which are voluntary.  Section 20(1) imposes a duty upon a local authority to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of defined situations.  However, Section 20(6) states that, before providing accommodation, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare, ascertain the child’s wishes and feelings regarding the provision of accommodation, and give due consideration to such wishes and feelings as they have been able to ascertain; Section 20(7) states that (in the case of a child under 16) a local authority may (generally) not provide accommodation if any person who has parental responsibility for the child and is willing and able to provide accommodation for the child or arrange for accommodation to be provided for the child, objects; and Section 20(8) provides that any person who has parental responsibility may (generally) at any time (without any requirement for notice) remove the child (under 16) from accommodation provided by or on behalf of the local authority.  Section 20 imposes a duty on the relevant local authority to provide accommodation to children if the conditions of subsection (1) or (3) are met; and a discretion to do so if the conditions of subsection (4) or (5) apply; but all this is subject to subsections (7) to (11). There is a vital distinction between voluntary assumption of care and the provision of accommodation on the one hand, and compulsory care, for example by an Emergency Protection Order pursuant to Section 44, or police powers under Section 46, on the other.

In Hackney LBC v Williams (2017) EWCA Civ 26 the Court of Appeal was concerned with Section 20(7). They held that a local authority is not required to obtain a positive expression of informed consent from a parent before accommodating a child under Section 20.  There is, however, judicial good practice guidance on Section 20, which should be followed, for reasons of good administration.

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