Williams and another v London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Kerr,Lord Wilson,Lord Carnwath,Lady Black |
| Judgment Date | 18 July 2018 |
| Neutral Citation | [2018] UKSC 37 |
| Date | 18 July 2018 |
| Court | Supreme Court |
[2018] UKSC 37
Lady Hale, President
Lord Kerr
Lord Wilson
Lord Carnwath
Lady Black
Appellants
Deirdre Fottrell QC
Louise MacLynn
Christine Cooper
(Instructed by Sky Solicitors)
Respondent
Nicholas Stewart QC
Ali Reza Sinai
(Instructed by London Borough of Hackney Legal Services)
Intervener (Coram Children's Legal Centre)
Charles Geekie QC
Sharon Segal
(Instructed by Coram Children's Legal Centre)
Intervener (Association of Lawyers for Children)
Mark Twomey QC
Alex Laing
(Instructed by TV Edwards LLP (Clapham))
Intervener (Family Rights Group)
Alex Verdan QC
Olivia Magennis
Michael Edwards
Indu Kumar
(Instructed by Goodman Ray LLP)
Intervener (Equality and Human Rights Commission)
Fiona Scolding QC
(Instructed by Equality and Human Rights Commission)
Heard on 14 and 15 February 2018
(with whom Lord Kerr, Lord Wilson, Lord CarnwathandLady Blackagree)
In March 2017 local authorities in England were looking after 72,670 children, a figure which has been rising steadily for the past nine years. They do so either as part of a range of services provided for children in need or under a variety of powers to intervene compulsorily in the family to protect children from harm. 50,470 of those 72,670 children were the subject of care orders, up 10% from the previous year; 16,470 were accommodated without any court order; the balance were subject to various other compulsory powers. In practice, the distinction between these categories is not always clear cut. Some accommodated children in need may also be at risk of harm if they are left at or returned home. In law, however, the distinction is clear. Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not. This case is about the limits of a local authority's powers and duties to provide accommodation for children in need under section 20 of the Children Act 1989 (“the 1989 Act”) without the sanction of a court order. Specifically, what is the local authority to do if the parents ask for their accommodated children to be returned to them but the local authority perceive that there are obstacles to doing so?
It may be helpful to set out the relevant parts of section 20, as amended, at the outset:
“ Provision of accommodation for children: general
(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 —
(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.
…
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of 16 and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(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.
(5) A local authority may provide accommodation for any person who has reached the age of 16 but is under 21 in any community home which takes children who have reached the age of 16 if they consider that to do so would safeguard or promote his welfare.
…
(7) A local authority may not provide accommodation under this section for any child if any person who —
(a) has parental responsibility for him; and
(b) is willing and able to —
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him, objects.
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
(9) Subsections (7) and (8) do not apply while any person —
(a) who is named in a child arrangements order as a person with whom the child is to live;
(aa) who is a special guardian of the child; or
(b) who has care of the child by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, agrees to the child being looked after in accommodation provided by or on behalf of the local authority.
(10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree.
(11) Subsections (7) and (8) do not apply where a child who has reached the age of 16 agrees to being provided with accommodation under this section.”
Also relevant are the rights of both parents and children under article 8 of the European Convention on Human Rights (“ECHR”):
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
If the use of section 20 amounts to an interference with a parent's or a child's exercise of their right to respect for their family life, it will violate article 8 unless it is “in accordance with the law” and a proportionate means of achieving one of the legitimate aims listed in article 8(2). In that event, it will be unlawful under section 6(1) of the Human Rights Act 1998 and the parent or child may seek a remedy, which could be an award of damages, under section 7(1) of that Act.
The appellants are the mother and father of eight children, at the time aged 14, 12, 11, 9, 7, 5, 2 and 8 months. The eight-month-old was still being breast fed. On 5 July 2007, their 12-year-old son was caught shop-lifting. He told the police that he had no money for lunch. He also complained that his father had hit him with a belt. He was taken to a police station and a social worker was called. The police then went to the family's home and found it in an unhygienic and dangerous state unfit for habitation by children. The police exercised their powers under section 46 of the 1989 Act in respect of all eight children. Section 46 enables a police officer who has reasonable cause to believe that a child would otherwise be likely to suffer significant harm to remove the child to suitable accommodation and keep him there for a maximum of 72 hours (section 46(1) and (6)). The suitable accommodation must be either provided by a local authority or in a certificated refuge (section 46(3)(f)). These children were provided with foster placements by the respondent local authority (“the Council”) — the two oldest boys together, the others in separate (and changing) foster placements.
Both the mother and the father were arrested and interviewed during the night of 5 July. They were released in the early hours of 6 July, on police bail to return to the police station on 30 July. The conditions of their bail were that neither was allowed to have unsupervised contact with any of their children. The reason given for the condition was to prevent interference with possible victims of crime. The parents then went to the Council offices and spoke to two social workers. They were asked to return later in the day and when they did they were asked to sign a “Safeguarding Agreement”. It is worthwhile quoting this in full. After listing the eight children, it provides:
“This Safeguarding Agreement was drawn up in relation to all of the children. Although the agreement is not legally binding, it may have significance, should there be any court procedures in the future.
We, Mr & Mrs Williams parents to all the above children agree to the following:
1. That all the children will remain in their Foster placements for the present time.
2. When contact takes place we will encourage the children to return to their placements and ensure them that this is a safe place.
3. That we will behave appropriately whilst contact is taking place, ie assure the children that we love and care for them, show them affection.
4. That we will not discuss with any of the children what has happened.
5. To continue to comply with Hackney Children's Social Care.
In conclusion Hackney Children's Social Care will seek legal advice with a view to protecting the children if it is found that parents are not complying with the contents of this Safeguarding Agreement.”
It is apparent that this “agreement” does not inform the parents of the power under which the Council were purporting to act or of their rights under section 20 and, while stating that it is not legally binding but may have significance should there be any court procedures in future, it does not explain its potential relevance in any legal proceedings and the circumstances in which these might be brought. However, the parents also signed consents to medical treatment and to accommodation (albeit without the children being named) that same day. The trial judge found that they had not been informed of their right to object to the children's continued accommodation under section 20(7) or of their right to remove the children at any time under section 20(8) and that their consent was not informed or fairly obtained (para 65).
The 72 hours of police protection expired on 8 July. On 9 July the parents went to the Council's offices and requested the return of their children. They...
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