Charlotte Steer, Pupil Barrister, Senate House Chambers.

Published: 18th May 2023

On 5th January 2023 in Re S (A Child) and Re W (A Child) [2023] EWCA Civ 1, the Court of Appeal provided important clarification on the interplay between s.20 and s.31 Children Act 1989, and the long-term use of voluntary accommodation of children under s.20 CA 1989.

In both cases s31 CA 1989 was satisfied on the basis that the children were at risk of suffering significant harm by reason of being beyond parental control (s31(2)(b)(i)). The subject children were placed and settled in long-term placements which were meeting their needs. In such circumstances, the placements and care plans were supported by both sets of parents, but not the making of care orders.

In both cases, both parents had appealed the making of a final care order under s31 and argued this was disproportionate and not the least interventionalist order (Re H-W [2022] UKSC 1451)

The issue for consideration by the Court of Appeal was therefore whether the Court should decline to make a care order and instead make no order pursuant to s1(5) CA 1989 in circumstances where the threshold under s31(2) was met for the making of a care or supervision order, and there was an agreed care plan for the subject child to live in local authority accommodation.

It was the position of the appellant parents that the use of s20 in such circumstances was appropriate to be used on a long-term basis. Prior to these two appeals, consideration of the use of s20 by the courts had focused upon its use as a temporary or short term solution.

The distinct difference between the effects of a child being placed in local authority accommodation under s20 CA 1989 and a care order being made was outlined by King LJ (at para [38]). Upon the making of a care order, the local authority shall acquire parental responsibility for that child pursuant to s33(3)(a). There is no such acquisition of parental responsibility upon a child being placed in local authority care under s20 CA 1989.

The parameters of the use of s20 were outlined in the judgment (at para [45]), as follows:

  • There is no time limit provided in s20 for how long a child may be accommodated by a local authority under this section. However, where possible, the purpose and the intended time limit should be agreed at the outset and reviewed (para [56]);
  • A parent may withdraw their consent and remove the child from s20 accommodation at any time;
  • Whilst there is no acquisition of PR to a local authority, by virtue of a parent providing their s20 consent, a parent is delegating PR to the local authority such that the local authority is able to make day-to-day decisions in respect of the child’s welfare; and
  • No other person with PR for the child may object or remove a child from s20 accommodation in circumstances where there is a “lives with” child arrangements order in force and the person named in that order agrees to the child’s placement under s20.

Both appeals were allowed by the Court of Appeal. King LJ at para [62] says:

“…I can see no inhibition on a section 20 order being made in appropriate circumstances for a longer period of accommodation provided that proper consideration is given to the purpose of the accommodation and that regular mandatory reviews are carried out”

King LJ concluded (para [84] by saying:

“…each of these two cases much be viewed in the context in which they have come before this court, that is to say in relation to children who are settled in long-term placements which is meeting their respective needs, in circumstances where both placements and the accompanying care plans are supported by the parents. As the judge in Re W observed, no court has hitherto considered the use of section 20 order in this type of situation and it is hoped that this appeal will have served to fill that gap. Nothing I have said should on any view be taken to seek to undermine or dilute the Supreme Court’s decision in Williams v Hackney LBC”

Therefore, in cases where the care plans for the children are agreed and supported by the parents and the children are settled in the long term placements, s20 accommodation can be used in the long-term. Each case is of course fact specific. However, in such circumstances and where the local authority seeks a care order under s31, it is for the local authority to discharge the burden of proving it requires the acquisition of PR for the child to override the parents PR, as provided by s31 CA 1989.

The judgment in these two appeals, when read together with Williams v Hackney LBC, has now provided important authoritative clarification on the law regarding the use of s20 CA 1989 in the long term and the circumstances in which this is an appropriate long-term plan for the children involved.