First published in Family Law Journal (Legalease)
Justin Slater, Barrister at 7BR, and Rose Harvey, Pupil at 7BR, analyse the ramifications of a recent decision on agreements to accommodate children under s20 of the Children Act 1989.
While primarily concerned with the jurisdiction of the court to make an order regarding a non-British child, the Court of Appeal in N (Children) (Adoption: Jurisdiction)  also addressed issues arising from the placement in that case of the children in local authority accommodation pursuant to an agreement under s20, Children Act 1989 (ChA 1989). Section 20 provides a powerful tool for good and this discretionary power can both safeguard a child and provide relief for a parent at a time of intolerable stress. While nothing in the leading judgment given by the president of the Family Division, Sir James Munby, in N should discourage the use of s20, there are, as the president reminds us, limits (as set out at paras 157-171 of the judgment). The use of section 20 agreements has been rising steadily since 2013, with 29% of looked-after children in 2015 (19,850) being looked after using s20 (Department for Education, 1 October 2015, see www.legalease.co.uk/looked-after-children). Practitioners must be clear as to exactly what a section 20 agreement is intended to achieve and the nature of its limitations.
To understand the concerns expressed by the president in N one must consider not only the framework of the Public Law Outline (PLO), with its drive towards unified pre-proceedings and a 26-week timetable, but also the great hallmark of the current president’s term, transparency.
Section 20 has an integral role within the PLO. The accommodation of a child does not inhibit the local authority in its care-planning role (per LB v London Borough of Merton ), but instead serves to draw parents into pre-proceedings and affords access to legal advice where longer-term judicial decision making is very likely to be needed.
Section 20(4) accommodation, ie where the local authority considers that the provision of accommodation will safeguard or promote the child’s welfare even though there is a person with parental responsibility for that child who is able to provide the child with accommodation, should only be used where there are real child protection concerns and where the local authority would otherwise have a reasonable expectation for an interim order. Should there be any likelihood of a future need for judicial decision making, there should be no delay in the issuing of those proceedings. The ‘no delay’ principle applies equally to pre-proceedings and to the issue of proceedings (per Medway Council v Mother ).
The frustration of the higher courts is in no small part due to the perception that local authorities are uncoupling s20 from the PLO, perhaps in an attempt to gain time for pre-proceedings assessments. A section 20 accommodation of a child by a local authority should not have the impact, as it did in the case of N, of delaying the issue of proceedings, in that case by eight months.
These hazards arise from the prolonged and sometimes inappropriate use of s20, often damaging the relationship between child and parent, as in Northamptonshire County Council v AS  where substantial damages were awarded against the council. A further example is Medway Council v M , where a child was placed under a section 20 agreement without the parent’s consent, leading to the mother being unaware of where the child even was for over six months. In N itself, the children were placed under a section 20 agreement for eight months, which the court considered to be far too long.
Not only does a delay in the issue of proceedings following a section 20 accommodation serve to distort the aims of the PLO, it also offends the principle of transparency. If section 20 accommodation can be used to ‘buy time’ prior to issue, and matters are allowed to drift, then what is the nature of the agreement between the parent and the authority? Outside of formal proceedings, the court has no jurisdiction to scrutinise the local authority’s interim care plan for the child, control the planning for the child, or prevent or reduce unnecessary and avoidable delay. In addition the court has no power to determine issues relating to parental contact, and the parents’ entitlement to legal aid and the appointment of a children’s guardian are delayed.
In Coventry City Council v C  Hedley J set out his observations (now supplemented by Munby P in N), which must act as our guide and can be summarised as follows:
Terms Of The Agreement
While the President acknowledged in his judgment in N that there is technically no legal requirement to record a section 20 agreement in writing, best practice dictates that this should be done in all but the most exceptional circumstances. The clear indication is that the courts will not look kindly on a section 20 agreement that is not laid out in such a manner, and should give pause to local authorities who may wish to protect themselves against criticism or even sanction.
It is suggested, in light of N, that serious consideration should be given by local authorities to returning to current cases as soon as possible and ensuring that these key steps have been taken. In addition consideration should be given to the question of whether or not accommodation is warranted at any given time by ongoing review as circumstances change. It is suggested that an accommodation agreement should clearly spell out that the issues referred to in the guidance from the courts have been fully and properly considered, and be accompanied by a clear statement of the parent’s right to withdraw consent and remove the child at any time, thereby correctly reflecting s20(8), ChA 1989. Agreements, even those made at court, that seek to fetter the parent’s right to remove a child by recording a requirement for a parent to give the local authority a specified period of notice prior to removal are very likely to be unenforceable and such provision should not be included.
The long-used practice of seeking to insert a notice period into an agreement (even those used and sanctioned by the court if made within proceedings) is to be avoided. Munby P expressed his scepticism as to the validity of provision for a parent to effectively contract out of s20(8), ChA 1989, which expressly allows for the immediate removal of an accommodated child (see para 169). This practice has arguably emerged over time in order to meet the needs of social workers and parents alike. Social workers may, even within proceedings, be uncertain that the test for removal will be satisfied and may not want to risk being refused by the court. They may even take the view that s20 affords them an opportunity to work more cooperatively with a ‘consenting’ parent and that provided the child is removed they are safe. Parents may well have been advised that to avoid an interim order, with its associated findings on threshold, a section 20 agreement with a notice period will suffice.
The ramifications of a potential reduction in section 20 agreements as a consequence of Munby P’s warnings in N may be an increased use of emergency protection orders, or even police protection orders, if access to the court is not possible and there are sufficient immediate concerns. Perhaps, though, the number of instances where a section 20 accommodation is considered the most viable option will simply be reduced. Cases where parental intentions are equivocal, or where there is any kind of track record of a parent changing their mind on the issue of accommodation, will no longer be seen as suitable.
For good reason, regional pre-proceedings protocols often stipulate that a child accommodated due to child protection concerns for more than six months must be referred to a legal planning meeting, unless there are clear child welfare reasons for the local authority not to issue proceedings, with those reasons set out in an agreed document approved by senior management, together with an accompanying clear and analytical plan of further action. Three months may be considered by some local authorities as sufficient to trigger senior-manager review. It is suggested that such protocols may suffice, but their use should even then be limited to the most exceptional cases.
It may seem that our assessment of the judgment in N is in conflict with the opening assertion that the president did not seek to discourage the use of section 20 agreements. Certainly, there are significant and arguably onerous duties identified in the judgment, but we would suggest that these serve to highlight the importance and function of s20 rather than detract from it. The key to unlocking the obiter comments in relation to voluntary accommodation can be found at para 157, when Munby P said:
Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the use of section 20 as a prelude to care proceedings for a period as long as here is wholly unacceptable.
Two key points can be identified:
For the overwhelming majority of cases however, s20 and the issue of proceedings must be thought of as inextricably linked. Local authorities embarking on such agreements must ensure that they not only abide by the functional requirements of consent, but also are aware that the PLO clock is ticking. Those who seek to uncouple s20(4), ChA 1989 from its natural place as immediate precursor to care proceedings should be conscious of their uncoupling, or face the courts’ growing frustration, potential human rights declarations, damages claims or even criminal charges.
Coventry City Council v C & ors
 EWHC 2190 (Fam)
LB v London Borough of Merton & anor
 EWCA Civ 476
Medway Council v M & anor
 EWFC B164
Medway Council v Mother & ors
 EWHC 308 (Fam)
N (Children) (Adoption: Jurisdiction)
 EWCA Civ 1112
Northamptonshire County Council v AS & ors
 EWHC 199 (Fam)