Williams & Anor v London Borough of Hackney [2018] UKSC 37

Eight children were placed in foster care after police protection following concerns about their home. Their parents claimed damages under the Human Rights Act for unlawful section 20 accommodation. The Supreme Court held the accommodation was lawful as parents had not unequivocally objected or requested the children's return.

Facts

The appellants were parents of eight children, aged between 8 months and 14 years. On 5 July 2007, their 12-year-old son was caught shoplifting and complained that his father had hit him with a belt. Police attended the family home and found it in an unhygienic and dangerous state, unfit for children. All eight children were taken into police protection under section 46 of the Children Act 1989, and placed in foster placements arranged by the London Borough of Hackney (“the Council”).

The parents were arrested and bailed on conditions preventing unsupervised contact with their children. On 6 July, they signed a “Safeguarding Agreement” and consents to accommodation. The trial judge found the parents were not informed of their rights under section 20(7) and (8), and consent was not informed or fairly obtained.

The 72-hour police protection expired on 8 July. On 9 July, the parents requested the return of their children but were told they could not take them home. Solicitors wrote on 13 July seeking the children’s eventual return on a co-operative basis. The children were ultimately returned on 11 September 2007 after the bail conditions were varied following intervention by a senior Council officer.

The parents claimed damages for, among other things, breach of their article 8 ECHR rights. The trial judge upheld the human rights claim, awarding £10,000 to each parent. The Court of Appeal reversed this decision, holding the accommodation was lawful.

Issues

The principal issue before the Supreme Court was whether there was a lawful basis for the children’s continued accommodation under section 20 of the Children Act 1989 once the 72 hours of police protection under section 46 had expired. This required consideration of the operation of section 20(7) (the parental right to object) and section 20(8) (the parental right to remove the child), and the relevance of “informed consent” jurisprudence developed in cases such as R (G) v Nottingham City Council and Coventry City Council v C.

Arguments

The appellant parents argued that their consent to section 20 accommodation was not informed or freely given, and that the letters of 13 July 2007 amounted to a withdrawal of consent, rendering the continued accommodation unlawful and a violation of their article 8 rights.

The respondent Council contended there was a lawful basis for the children’s accommodation, relying particularly on the bail conditions which prevented the parents from providing suitable accommodation, bringing the situation within section 20(1)(c) and section 20(7).

Judgment

Lady Hale, delivering the unanimous judgment, allowed the appeal in part on reasoning but dismissed the parents’ Human Rights Act claim. She undertook an extensive analysis of section 20.

The scheme of section 20

The starting point is parental responsibility. A local authority cannot interfere with a parent’s exercise of parental responsibility against their will without a court order. Where parents agree to accommodation, they are delegating the exercise of parental responsibility, and this delegation must be “real and voluntary”, though not necessarily “fully informed”. Where the local authority steps in because a parent is not looking after the child (as in cases of abandonment or hospitalisation), active consent is not required, but the local authority’s powers remain subject to subsections (7) to (11).

Subsections (7) and (8)

Subsection (7) prevents the local authority from accommodating a child if a parent willing and able to provide or arrange accommodation objects. Subsection (8) gives a parent an unqualified right to remove the child at any time, without any need for written notice. The only caveat is the right of anyone to take necessary steps to protect a child from physical harm (e.g. under section 3(5)).

Application to the facts

This was not a case where the local authority used section 20 to take charge of children in the parents’ care; rather, section 20 arrangements replaced compulsory measures under section 46. The focus must therefore be on subsections (7) and (8) rather than the validity of an initial delegation. The circumstances on 8 July fell within section 20(1)(c) since the parents were “prevented” from providing suitable accommodation.

Lady Hale held that the events of 9 July were too unclear to constitute either an objection under subsection (7) or an unequivocal request for return under subsection (8). The solicitors’ letters of 13 July could not be construed as an unequivocal request for immediate return; rather, they reflected a collaborative approach aimed at securing the eventual return of the children. The parents had effectively continued to delegate parental responsibility on a co-operative basis.

Accordingly, there was a lawful basis for continued accommodation under section 20. The ground upon which the judge had found a violation of article 8 (lack of lawful basis) was not made out. While interference with article 8 rights was conceded, the question of proportionality had not been fully explored and was not before the court; the trial judge had implicitly found the interference proportionate.

Implications

The judgment provides authoritative guidance on the proper operation of section 20 of the Children Act 1989. Several important principles emerge:

First, the Court clarified that “informed consent” is not a strict legal precondition under the statute. What is required, where parents are caring for a child, is a real and voluntary delegation of the exercise of parental responsibility. The detailed good practice guidance issued by Munby J and Hedley J in earlier authorities remains valuable, but failure to follow it does not, of itself, give rise to an actionable wrong.

Second, parents with parental responsibility have a qualified right to object under section 20(7) and an unqualified right to remove the child under section 20(8). A local authority faced with an unequivocal request for return must either return the child or seek police protection or an emergency protection order.

Third, section 20 must not be used as a coercive tool. As Lady Hale stated, if the state intervenes compulsorily in family life, it must seek legal authority to do so. However, the judgment recognises the value of co-operative working with parents and warns against “rushing unnecessarily into compulsory procedures”.

Fourth, although there is no statutory time limit for section 20 accommodation, prolonged use without bringing care proceedings may breach other duties under the Act, the Care Planning, Placement and Case Review (England) Regulations 2010, or article 8 ECHR.

The decision is significant for local authorities, family practitioners, and parents. It provides reassurance that genuine partnership working under section 20 will not be readily characterised as unlawful interference, while reaffirming that the section confers no compulsory powers and must not be used as if it did. The judgment also leaves open the question of whether interference, even when in accordance with the law, may be disproportionate under article 8 – an issue not explored in this case.

Verdict: The appeal was dismissed. The Supreme Court held that there was a lawful basis under section 20 of the Children Act 1989 for the continued accommodation of the children, as the parents had not unequivocally objected to the accommodation or requested the immediate return of the children. The parents’ claim under the Human Rights Act 1998 for breach of article 8 ECHR therefore failed, although for reasons differing from those of the Court of Appeal.

Source: Williams & Anor v London Borough of Hackney [2018] UKSC 37