LexisPSL Local Government and Claire Cousin outline a local authority’s duty to provide accommodation to children under section 20 of the Children Act 1989, identifying the challenges a local authority may face including parental consent and capacity.
The duty under section 20 of the Children Act 1989
Section 20 of the Children Act 1989 (ChA 1989) imposes a duty on every local authority to provide accommodation to children identified as children in need resident in its area who appear to require accommodation. There are certain factors which will influence a local authority as to whether they shall provide accommodation or may provide accommodation to a child in need.
A local authority will firstly need to identify children in need in its area. These are children who without the provision of services:
- are unlikely to achieve or maintain or have the opportunity to do so, a reasonable standard of health or development,
- their health or development is likely to be significantly impaired, or further impaired, or
- is disabled
References: ChA 1989, s 17(10)
The local authority would then need to consider whether or not this is a child in need in their area who requires accommodation.
If they do require accommodation under this section, they become 'looked after' by a local authority as soon as the duty under ChA 1989, s 20 arises regardless of whether this has been a period over 24 hours. The local authority has duties to all children 'looked after' by them. See Practice Note: Local authority duties towards children looked after by them.
References: London Borough of Southwark v D  EWCA Civ 182; ChA 1989, s 22(2)
Difference in the duties under section 17 and section 20 of the Children Act 1989
ChA 1989, s 17 is a general duty on each local authority to:
- Safeguard and promote the welfare of children within their area who are in need, and
- So far as is consistent with that duty, to promote the upbringing of such children by their families
This duty is to be satisfied by the local authority providing a range and level of services that are appropriate to those children's needs. These services can be practical or financial in nature. See Practice Notes: Children in need—provision of services and Local authority duties for advice and assistance for certain children and young persons.
Services under ChA 1989, s 17 can also include accommodation. Should a local authority provide accommodation to a child in need, but if on the facts of the case a duty has arisen under ChA 1989, s 20 to provide accommodation, then the local authority must be regarded as providing accommodation under ChA 1989, s 20 and the child is regarded as a 'looked after child'. This is a more onerous duty of care than those of a local authority to a ChA 1989, s 17 child in need. Once the ChA 1989, s 20(1) duty factually arises, a local authority cannot elect to provide accommodation under ChA 1989, s 17. There may be disputes between a child and a local authority as to whether on the facts of a particular case the ChA 1989, s 20 duty arises or not.
References: R (on the application of H) v Wandsworth London Borough Council; R (on the application of Barhanu) v Hackney London Borough Council; R (on the application of B) v Islington London Borough Council  EWHC 1082 (Admin)
Before providing services under ChA 1989, ss 17 and 20, the local authority must ascertain and consider as far as is reasonably practicable the wishes and feelings of the child bearing in mind their age and understanding regarding the provision of services.
References: Children Act 1989 ss 17(4A), 20(6)
The duty under ChA 1989, s 20 is specifically in relation to local authorities providing accommodation to children in need in their area as outlined above. This duty applies to the local authority even where another agency is or may be assisting with providing accommodation.
References: R (on the application of G) v London Borough of Southwark  UKHL 26
Children the section 20 duty applies to
The duty applies to children who are 'in the area' of the local authority.
To be 'in the area' of a local authority for this purposes of this duty, the child needs to be physically present.
References: R (on the application of Stewart) v London Borough of Wandsworth and another  EWHC Admin 709
A local authority will have a duty to a child under ChA 1989, s 20 if when considering the facts of the case are answered in favour of the child:
- is the person a child?
- is the child a child in need?
- is the child within the local authority's area?
- does it appear to the local authority that the child requires accommodation?
- is that need the result of:
- there being no person with parental responsibility for the child, for example, where parents are deceased,
- the child having been lost or abandoned, or
- the person who has been caring for him being prevented from providing him with suitable accommodation or care?
- what are the child's wishes and feelings regarding provision of accommodation for them?
- what considerations, in light of the child's age and understanding should be given to those wishes and feelings?
- does anyone who has parental responsibility for the child who is willing to provide accommodation object to the local authority's intervention?
- if there is an objection by someone with parental responsibility, is there agreement from an individual who has a child arrangements order setting out where the child should live to the local authority's intervention?
The local authority should bear in mind that if there is a dispute as to the age of the person and whether or not they are a child, this will need to be determined by the court.
References: R (on the application of G) v London Borough of Southwark; applying R (A) v Croydon London Borough Council  EWCA Civ 1445; ChA 1989, ss 20(3), 20(1), 20(6)(a), 20(6)(b), 20(7), 20(9)(a)
When a local authority should intervene
A local authority shall provide accommodation under ChA 1989, s 20(1) where:
- the child has no one with parental responsibility for them,
- the child has been lost or abandoned,
- the person who has been caring for the child being prevented (whether temporarily or permanently and for whatever reason) from providing him with suitable accommodation or care
The child is a child in need who is aged over 16 and whose welfare the local authority consider would be seriously prejudiced if the child is not provided with accommodation
References: ChA 1989, ss 20(1), 20(3)
A local authority has a discretion to provide accommodation under this part of ChA 1989 where the local authority considers to provide accommodation would safeguard or promote the child's welfare--even where there is a person with parental responsibility willing and able to care for the child. This will be an assessment for a local authority on a case by case basis. A person with parental responsibility may be willing and able to care for the child, but a local authority's assessment may be that the child's welfare would be harmed or at risk of harm by being placed with that person even though they are willing and able to offer accommodation. Therefore, a local authority may wish to provide accommodation in any event. However, the local authority will still only be able to accommodate the child if a person with parental responsibility consents. If there is no consent and a local authority continues to wish to accommodate, the local authority will need to seek a care or emergency protection order.
This also applies to any child between the ages of 16 and 21 who the local authority could accommodate in a community home.
References: ChA 1989, ss 20(4), 20(5)
Local authorities should be mindful that they may not provide accommodation to a child if any person with parental responsibility for the child objects and is willing and able to provide or arrange for the child to be provided with accommodation (unless the child is aged 16 or over and agrees to being provided with accommodation).
References: ChA 1989, ss 20(7), 20(11)
In the event that a dispute arises as to whether the local authority should provide accommodation, the individual who is dissatisfied with the local authority decision should make a complaint pursuant to the local authority complaint procedures. In the event they remain dissatisfied with the outcome of the complaints process, the individual could apply for judicial review to challenge the local authority's decision.
How to decide whether to provide accommodation
There are a number of different factors that a local authority will need to consider when looking at whether to provide accommodation:
- consider the child's current circumstances carefully to see if there is an alternative to the child being accommodated such as being cared for by a family member or friend by way of a family arrangement or under an appropriate private law order such as a child arrangements order,
- consider whether providing practical or financial support to a child in need could negate the need for accommodation to be provided,
- consider the resources they have available and whether the accommodation they would provide would be appropriate to the needs of the child in the circumstances. For example, being in an appropriate location so the child could continue to attend the same school,
- consider the wishes and feeling of the child concerned
- consider carefully in cases where a decision is being made to offer accommodation due to safeguarding concerns whether or not a person with parental responsibility will consent to accommodation. without consent an application to court for an emergency protection order or a care order may be needed,
- consider carefully whether a holder of parental responsibility has capacity to consent to accommodation being provided by the local authority.
References: ChA 1989, ss 31, 46; Mental Capacity Act 2005
Challenges and issues
Which local authority?
Disputes often arise as to which local authority a child is in the area of and has the duty to provide accommodation. The child is in the local authority's area when physically present. A local authority may not avoid responsibility by arguing that a separate local authority has assumed responsibility.
It is important that local authorities co-operate and share information with each other at the earliest opportunity regarding which area a child is in and who will take responsibility for them.
References: R (on the application of Liverpool City Council) v London Borough of Hillingdon  EWHC 1702; Re Y Children - Suffolk County Council v Nottinghamshire County Council  EWCA Civ 1640
Consent to accommodation
Where there is more than one holder of parental responsibility for a child, one holder consents where another does not, a local authority may not provide accommodation if the objecting holder of parental responsibility is willing and able to provide or arrange accommodation.
This can be overridden only if there is a person who has a child arrangements order, special guardianship order or has care of the child by virtue of an order under the court's inherent jurisdiction provides consent, unless the child is over 16.
References: ChA 1989, ss 20(7) 20(9), 20(11)
If no consent is forthcoming and the local authority is of the view that accommodation is required to safeguard the child's welfare, the local authority should consider an application for a care order or emergency protection order or other emergency powers under ChA 1989.
An emerging practical issue arising in relation to the local authority providing accommodating is in relation to a parent's capacity to provide consent to a local authority providing accommodation under ChA 1989, s 20. It is important for local authorities to be prepared for this issue.
If a local authority is in doubt about a parent's capacity to provide ChA 1989, s 20 consent and considers that accommodation is appropriate, a local authority should make an application for a care order or emergency protection order.
Local authority practitioners should take the following into consideration:
- social workers have a personal duty (which cannot be dictated by others) to be satisfied that the person giving consent to accommodation has the capacity within the meaning of the Mental Capacity Act 2005 (MCA 2005) to do so,
- if social workers have doubts regarding a parent's capacity, no further attempts should be made to obtain consent and advice should be sought from a team manager or management,
- social workers must ensure that consent is informed consent including ensuring that parents understand the consequences of giving consent, the range of choices available, the consequences of refusal and ensuring parents are in receipt of all facts and issues that are material to giving consent.
Social workers should also also consider the following practical points:
- what is the current physical and psychological state of the parent?
- if they have a solicitor, have they been encouraged to seek legal advice and/or advice from family and friends?
- is it necessary for the safety of the child for them to be removed at this time?
- would it be fairer in this case for the matter to be subject of a court order rather than an agreement?
Great care should be taken by local authorities in obtaining consent to accommodation from parents where there are potential issues with capacity, such as mothers who have just given birth or parents with mental health or learning difficulties or disabilities, especially where there is no immediate danger to the child and probably no order would be made.
References: MCA 2005, ss 2-3; Coventry City Council v C, B, CA and CH  EWHC 2190; Medway v A & Ors (Learning Disability; Foster Placement)  EWFC B66
If a local authority does not take the appropriate and necessary steps to obtain a valid ChA 1989, s 20 consent or relies on a ChA 1989, s 20 consent provided in breach of the steps outlined above, the local authority will be at risk of a claim for a declaration that the parent and potentially the child's human rights have been breached and a subsequent claim for damages.
References: Re H (A Child: Breach of Convention Rights: Damages)  EWFC 38
Withdrawal of consent to accommodation
A person who has parental responsibility for a child can object to a child's continued accommodation at any time without notice. In the event the local authority seeks to prevent removal, they will need to apply for a care order or emergency protection order or seek the police to invoke their police protection powers.
References: ChA 1989, ss 20(8), 20(9)
Alternatively, the local authority could support a holder of parental responsibility who consents to the child's continued accommodation to seek a child arrangements order as a holder of parental responsibility cannot object to a child's continued accommodation if a person who holds a child arrangements order consents.
It is not open to a local authority to use an order under ChA 1989, s 8 to prevent a child's removal from accommodation.
References: ChA 1989, ss 9(2), 9(5)
A section 8 order is one of the following:
- a child arrangements order as to who a child should live and/or spend time with,
- a specific issues order which requires an individual to do something,
- a prohibited steps order which requires an individual not to do something.
Practitioners who represent parents may wish to consider providing local authorities written notice of intention withdraw consent to a child's accommodation with a time limited window for the child to be returned to avoid potential criticism within care proceedings of a child being destabilised and unsettled by an unplanned removal.
This article was originally produced for LexisPSL Local Government in partnership with Claire Cousin of Emery Johnson Astills. If you would like to read more quality articles like this, then register for a free 1 week trial of LexisPSL.