![FD25C40349 - [2025] EWHC 1974 (Fam)](https://backend.juristeca.com/files/emisores/logo_0FrGysm.png){kind=logo}
The Law
The Law
Under s.22 Children Act 1989 a child is looked after if they are provided with accommodation by the local authority. A child is provided with accommodation either under a care order or under Section 20 Children Act 1989. G is a child as defined within the Children Act 1989, namely a person under the age of 18 - Section 100(5) Children Act 1989 applied.
G is 17 years old. He cannot be the subject of a care order – s.31(3) Children Act 1989 applied. He can only be accommodated under Section 20 Children Act 1989.
Section 20 Children act 1989, in so far as is relevant to the case before me states:
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 –
there being no person who has parental responsibility for him;
his being lost or having been abandoned; or
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.
[…]
Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
[...]
A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.
Before providing accommodation under this section, 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 (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
A local authority may not provide accommodation under this section for any child if any person who –
has parental responsibility for him; and
is willing and able to –
provide accommodation for him; or
arrange for accommodation to be provided for him,
objects.
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.
Subsections (7) and (8) do not apply while any person –
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
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.
Where there is more than one such person as is mentioned in subsection (9), all of them must agree.
Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section.
In HXA v Surrey County Council [2023] UKSC 52, the Supreme Court made seven points in relation to Section 20 Children Act 1989. They were;
First, there is a clear distinction between the provision of accommodation pursuant to section 20 and compulsory intervention in the lives of children and their families under section 31 of the 1989 Act (set out in para 30 above). As Lady Hale stated in Williams v Hackney London Borough Council [2018] UKSC 37, [2019] AC 421, (“Williams”) at para 1:
“Compulsory intervention in the lives of children and their families requires the sanction of a court process. Providing them with a service does not.”
Second, the parents retain parental responsibility throughout the period a child is being accommodated, but if a parent does agree to the removal or accommodation of her child under section 20 then:
“… she is simply delegating the exercise of her parental responsibility for the time being to the local authority”: see para 39 of Williams.
Third, by virtue of section 20(8) and at any time whilst a child is being accommodated, either one or both of his parents, without giving any notice and without expressing any reason, can remove the child from the accommodation.
Fourth, if the circumstances fall within section 20(1) there is a duty on the local authority to accommodate the child. If they fall within section 20(4) there is power to do so: see para 41 of Williams.
Fifth, a local authority should be thinking of the longer term in relation to children accommodated under section 20. At para 50 of Williams, Lady Hale stated:
“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 . . .”
Sixth, it can be seen that there is a clear distinction in the circumstances in section 20(1)(c) giving rise, on the one hand, to the duty to accommodate and the circumstances in section 20(4) triggering the power to provide accommodation and, on the other hand, the threshold for compulsory intervention in the lives of children and their families under section 31.
Finally, there is nothing in section 20 to place a limit on the length of time for which a child may be accommodated but it is inappropriate and an abuse of section 20 to delay the issue of public law proceedings while accommodating children or young people: see Worcestershire County Council v AA [2019] EWHC 1855 (Fam) at para 13.
Under Section 20 Children Act 1989 all those with parental responsibility for G must consent to his accommodation – Section 20(9) and (10) Children Act 1989. Here, G’s mother consents but his father does not. Section 20(10) therefore applies. G, however, can consent to his own accommodation and that consent cannot be overridden by parental objection – Section 20(11) Children Act 1989 applied.
S100 (2) Children Act 1989 states:
(2)No court shall exercise the High Court’s inherent jurisdiction with respect to children—
so as to require a child to be placed in the care, or put under the supervision, of a local authority;
so as to require a child to be accommodated by or on behalf of a local authority;
so as to make a child who is the subject of a care order a ward of court; or
for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.
Similarly, it appears to be agreed between the parties that if G was to become voluntarily accommodated in a future placement, it would be open to the court to exercise its powers under the inherent jurisdiction in those circumstances.
In Re E (Wardship order: Child in Voluntary Accommodation) [2012] EWCA Civ 1773, Lord Justice Thorpe stated that voluntary accommodation is not incompatible with wardship: ‘there is nothing in Section 100 that either explicitly or implicitly precludes the court from making an order in wardship where the child is not required to be accommodated, but is voluntarily accommodated.’
That Court of Appeal decision is at one with the decision of Mr Justice Hedley in Re K (Children with Disabilities: Wardship) [2012] 2 FLR 745 where the court made orders in wardship to support children who were to remain, by the agreement of their parents in that case, in residential accommodation.
In Re: M (Children) [2016] EWCA Civ 937Lord Justice McFarlane consideredRe E and Re K (above), stating:
34.‘In his skeleton argument, Mr McCarthy relied upon Re E in support of the submission that, as T had been accommodated under s 20 once she became 17, the court had jurisdiction to make an order in wardship. Miss Cook joins issue if, as his argument implies, Mr McCarthy seeks to say that Re E is authority for the proposition that a court can use the inherent jurisdiction to require a local authority to accommodate a child, as such an order would be contrary to s 100(2). In so far as there is a dispute on this point, Miss Cook's submission must be correct. Re E does no more than establish an ancillary use of wardship to support arrangements for a child's care that have been agreed, and are not the subject of a court order. As the words of Thorpe LJ make absolutely plain, the accommodation is governed by the agreement and, if that agreement fails, 'obviously' the court is not in a position to require the local authority to continue to accommodate the child.’
[…]
‘Having been taken to the case-law relied upon by Mr McCarthy, I am clear that those cases do not support the proposition that the court, exercising its inherent jurisdiction, can grant authority to a local authority to provide care for a child where the local authority would not otherwise have power to do so under the statutory scheme. The most that the court may do, and in some cases this may be of real benefit, is to support arrangements that are otherwise legitimately in place by making orders which are not excluded from the court's jurisdiction by s 100.’
There is a clear distinction in the statutory scheme between Section 20 accommodation and the compulsory intervention of a Local authority in the life of a child or young person – Section 100(2) (a) and (b) Children Act 1989 and paragraphs 35 and 40 HXA(above). As Mr Justice MacDonald stated in A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam): ‘it is clearly established that the High Court cannot exercise its inherent jurisdiction to grant authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme (Re E (A Child) [2012] EWCA Civ 1773 at [16] and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 at [39])’.
In Coventry City Council v C & Ors [2013] EWHC 2190 (Fam), Mr Justice Hedley stated as follows:
‘27. However, the use of Section 20 is not unrestricted and must not be compulsion in disguise. In order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under Section 20 must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005.’
Moreover, even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver's personal interest, is fairly obtained. That is implicit in a due regard for the giver's rights under Articles 6 and 8 of the European Convention on Human Rights.'
Before me the local authority has relied onA LA v EBY [2023] EWHC 2492 (Fam). In that case the child, like G was 17 years old. Both her parents gave their consent to her accommodation and the court held that under the inherent jurisdiction , the High Court could authorise the derivation of her liberty. It does not seem to me that that case applies where, as here, (i) neither parent can give informed consent,(ii) only one of G’s parents consents , the other objecting and (iii) G does not give his consent to future accommodation at a placement where he does not wish to reside.
Where a child is being accommodated by a local authority under a voluntary arrangement with their parents’ consent, the local authority has no power to arrange a transfer of the child from a residential institution to foster care without the permission of their natural parents; parental responsibility includes the right to decide where a child lives - R v Tameside Metropolitan Borough Council ex parte J[2000] 1 FLR 942, QBD.
In Re D [2019] UKSC 42the Supreme Court held thatparents cannot provide consent to Deprivation of Liberty restrictions for 16 plus competent children.
The decision of the High Court to authorise the deprivation of a child's liberty does not act to authorise the placement itself. The task of the court when determining whether to exercise its inherent jurisdiction to grant a declaration authorising the deprivation of liberty is to determine (a) whether the restrictions proposed constitute a Deprivation of Liberty for the purposes of Art 5 of the ECHR and (b) if so, whether the that Deprivation of Liberty is in the child's best interests - Tameside MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam).