Public Law
January 2023

In Re S, the judge found the threshold to be satisfied on the basis that S was beyond parental control. The judge thereafter went on to make a care order. The grounds of appeal [at para 23] can be summarised as follows:

i) The judge wrongly concluded that a section 31 CA 1989 order was necessary and proportionate on the basis that there was a 'significant risk' that S's father may withdraw his support for section 20 accommodation in the future, S's father has been difficult to contact and communicate with and there have been contact difficulties in the past.

ii) The judge erred when stating that the issue was 'do the local authority need to share parental responsibility?'.

iii) The judge attached excessive weight to the certainty that would be provided by a care order. He failed to express a view as to whether section 20 CA 1989 orders could be used for long term accommodation.

iv) Judicial guidance would be of benefit as to the test to be applied where it is submitted that the section 1(5) CA 1989 'no order' principle should be adopted in preference to section 31.

In Re W, the parents initially agreed to the making of a care order but, having had the opportunity to take legal advice and having spoken to other adopters, they notified the local authority that they would object to the making of a care order. They wished, they said to 'parent from a distance' under a s20 arrangement. The grounds of appeal filed following the making of the care order can be summarised as follows [at para 37]:

i) The judge erred in determining that the proper use and purpose of section 20 CA 1989 is for short-term and temporary accommodation when the provisions of the CA 1989 do not restrict or qualify the use of section 20 CA 1989 accommodation in such a way.

ii) Having determined the above, the judge erred in attaching substantial weight and reliance on that determination as the primary reason for making a care order.

iii) The judge erred in considering that she was able to influence or fetter the local authority's exercise of its parental responsibility during the care order or, in the alternative, placed weight on this consideration as part of her welfare and decision-making evaluation.

iv) The judge erred in concluding that the no order principle and least interventionist approach was rebutted in the circumstances of this case and in failing to identify, or identify properly, the welfare benefits to the child of her parents retaining sole parental responsibility.

The comparative roles of section 31 care orders and section 20 accommodation orders [para 38]: Miss Fottrell KC summarised the differences by saying that a section 31 care order is the more draconian order and more interventionist. King LJ added that “this is undoubtedly the case as not only does a local authority acquire parental responsibility pursuant to section 33(3)(a) CA 1989 when a care order is made, but also under section 33(3)(b)(i) CA 1989 the local authority may 'determine the extent to which a parent may meet his or her parental responsibility' for the child in question. In other words, as it was put in argument, when a care order is made, the local authority may (by section 33(4) CA 1989), in order to 'safeguard or promote the child's welfare', 'trump' the parents whenever there is an issue between them. By contrast, as Ms Fottrell says, a section 20 accommodation order facilitates partnership and where it is functioning well under an agreed care plan, not only is the making of a care order not necessary but it is disproportionate. To make a care order in such circumstances would not she submitted, pursuant to section 1(5) CA 1989, be 'better for the child than making no order at all.'”

At para 43, King LJ highlighted that “Section 17 CA 1989 is concerned with the 'provision of services for children in need, their families and others'. Section 17 CA 1989 has played no part in the submissions made in these appeals. It is worth noting, however, that care proceedings do not necessarily provide the only route by which children such as S and W may be assisted. Under Schedule 2 para.7(a)(i) every local authority is required to take all reasonable steps to reduce the need to bring proceedings for care or supervision orders and by section 17(6) the services provided may, in certain circumstances, include the provision of accommodation”.

Section 20 CA 1989, provides for the provision of accommodation and the parameters of section 20 are found within the section itself [see paras 44-45]. The leading authority on the use of section 20 CA 1989 is Williams v Hackney LBC in which Baroness Hale's judgment considers the limits of a local authority's powers and duties to provide accommodation for children in need under section 20 CA 1989. In her judgment, Baroness Hale conducted a comprehensive review of the scheme of section 20, in particular at para [15] quoting from the Government White Paper, The Law on Child Care and Family Services (1987) (Cm 62) [see para 48].

King LJ at para 52 noted that “it is common ground between the parties to this appeal that cases concerning the operation of section 20 in place of a section 31 care order have to date emphasised the provision of accommodation for a child under section 20 as a short term or temporary solution”. In Worcestershire County Council v AA [2019] EWHC 1855 (Fam), Keehan J suggested a (non-exhaustive) list of examples of cases in which it may be appropriate for the local authority to accommodate a child under section 20 without making an application under section 31 CA for a care order (at [12]).

The judgment considered the Public Law Working Group, chaired by Keehan J and its published report ('PLWG report'). The report not only analysed current issues but also gave best practice guidance concerning, inter alia, section 20 orders [para 56-59]. In its analysis of the current use of section 20 orders, the PLWG report first referred to the judgment of Sir James Munby P in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112; [2016] 2 WLR 713 ('Re N'). Sir James at para. [157] under the heading of 'Other matters: section 20 of the 1989 Act', said that too often arrangements under section 20 are allowed to continue for far too long and, having set out future good practice in relation to the obtaining of consent, he went on at para [171] to say:

"171. The misuse and abuse of section 20 in this context is not just a matter of bad practice. It is wrong; it is a denial of the fundamental rights of both the parent and the child; it will no longer be tolerated; and it must stop. Judges will and must be alert to the problem and pro-active in putting an end to it. From now on, local authorities which use section 20 as a prelude to care proceedings for lengthy periods or which fail to follow the good practice I have identified, can expect to be subjected to probing questioning by the court. If the answers are not satisfactory, the local authority can expect stringent criticism and possible exposure to successful claims for damages."

The PLWG report concluded that these trenchant observations had 'significantly contributed to the decline in the (appropriate) use of s20'. This analysis was followed up by a number of recommendations, the first of which, at para [234], said: "There should be no imposition of time limits for the use of s20. There are no legal time limits in place. The imposition of time limits will be counterproductive. However, it is recommended that, where possible, the purpose and duration of any s20 accommodation is agreed at the outset and regularly reviewed" [para 60].

King LJ referred to the accompanying 'Best Practice Guidance', found at Appendix G of the PLWG report, noting relevance to the present appeal is para [18] which repeats the need to identify the context and purpose for which section 20 is being considered and goes on to say that 'this may be short term accommodation during a period of assessment or respite; alternatively, it may be a longer period of accommodation, including the provision of education or medical treatment'.

At para 62 King LJ raised that “I am conscious of the need to be cautious of the use made of such guidance as a guide to the interpretation of the statute and remind myself that it can only ever be of 'some persuasive authority' (Ellis v Bristol City Council [2007] EWCA 685; [2007] 1 WLR 1407 at [27]). The guidance with which we are concerned is not however strictly in relation to statutory interpretation. The statute is unambiguous; there is no time limit on the length of a section 20 order. Rather, the guidance goes to the proper use of section 20 orders by building on and fleshing out, the observations of Baroness Hale in Williams v Hackney LBC. For my part, 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 the regular mandatory reviews are carried out”.

Discussion of the decision in Re S is set out at paragraphs [65-72]. King LJ concluded that the judge fell into error in his assessment of the risk presented by the father to the stability of S and to his placement. This in turn resulted in his making what was in King LJ’s view, a disproportionate order.

The decision in Re W is discussed in paras [73-82]. The focus of the appeal in relation to Re W is whether the judge was wrong to approach the use of section 20 on the basis that it is intended to be used on a 'more short-term basis'. King LJ concluded that “Reading the judgment as a whole, it is clear that the judge was heavily influenced by her belief that section 20 orders should only be used as a short-term measure”. That error led the judge to approach the risk and proportionality exercises with the balance too heavily weighted in favour of the making of a care order. The judge's discomfort with making such an order against a factual background so very removed from the earlier case law was clearly reflected in her request that the recitals set out above should be included in the order. These recitals, even after having been 'carefully crafted by counsel', came perilously close to purporting to dictate the manner in which the local authority's care plan was to be implemented (see Re T para.[38])”.

Furthermore, King LJ added that “In my view, recitals of this nature have no place in an order as they either simply rehearse the local authority's duties as prescribed by statute and regulation or, if they go further, are in danger of seeking to maintain control after the care order is made. In saying that, I should be clear that I wholly endorse the observations of Peter Jackson LJ in Re T that it is not open to a local authority to decline to accept a court's assessment of risk and welfare”. It followed that, in King LJ’s judgement, the appeal on the ground that the judge had sought by the use of the recitals to influence or fetter the local authority's exercise of parental responsibility will be dismissed. The judge however fell into error in her approach to the use of section 20 which in turn impacted on her approach to the 'no order' principle. In those circumstances, the appeal against the making of a care order is allowed”.

Outcome: In each of the appeals King LJ concluded that appeals against the making of a care order should be allowed. As no party in either case had suggested that the matter should be remitted for reconsideration, it followed that both of the children will remain in the long-term placements provided by the respective local authorities under section 20.

MacDonald J noted from the outset that this court is aware that, to date, it has been the practice to include provisions removing or restricting the use of a child’s mobile phone in orders authorising restrictions that constitute breaches of the child’s Art 5 right to liberty. Indeed, this court took that step in Salford City Council v NV, AM, M (By her Children's Guardian) [2019] EWHC 1510 (Fam).

In this case, MacDonald J concluded that it is not appropriate for the court to authorise the removal of, or the restriction of the use of P’s mobile phone, tablet and laptop and her access to social media in an order authorising the deprivation of her liberty for the purposes of Art 5(1) of the ECHR. MacDonald J was satisfied that the appropriate legal framework in this case for mediating the removal of, or the restriction of the use of, P’s mobile phone, tablet and laptop and use of social media is that provided to the local authority by s.33(3)(b) of the Children Act 1989. Finally, whilst MacDonald J was satisfied that, were the evidence to justify it, it would be open to the local authority to apply for an order under the inherent jurisdiction authorising the use of restraint or other force in order remove P’s mobile phone, tablet and laptop from her if she refused to surrender them to confiscation, MacDonald J was satisfied that such an order is not at present justified on the evidence in this case.

It was recognised that for P, in common with many other young people of her age, her mobile phone and other devices constitute a powerful analogue for freedom, particularly in circumstances where she is at present confined physically to her placement. Within this context, MacDonald J accepted that the possession and use of her mobile phone, tablet and laptop, and her concomitant access to social media, is likely to equate in P’s mind to “liberty” broadly defined as the state or condition of being free. However, this court is concerned with the meaning of liberty under Art 5(1) of the ECHR. Whilst MacDonald J recognised that the Convention is a living instrument, which must be interpreted in the light of present-day conditions (see Tyrer v United Kingdom (1978) 2 EHRR 1 at [31]), over an extended period of time the Commission and the ECtHR have repeatedly made clear that Art 5(1) is concerned with individual liberty in its classic sense of the physical liberty of the person, with its aim being to ensure that no one is dispossessed of their physical liberty in an arbitrary fashion. The Supreme Court proceeded on that formulation of the proper scope of Art 5(1) in Cheshire West.

In MacDonald J’s judgment the removal of, or the placing of restrictions on the use of, P’s mobile phone, tablet and laptop and her use of social media do not by themselves amount to a restriction of her liberty for the purposes of Art 5(1). MacDonald J concluded that, on the evidence currently before the court those restrictions do not act to deprive P of her physical liberty, but rather act to restrict her communication, so as to ensure her physical and emotional safety. The evidence set out in MacDonald J’s judgment demonstrates that the effect of those restrictions is to limit P’s communications with peers who might encourage her to engage in bad behaviour, with strangers who may present a risk to her and with family and friends when she is in a heightened emotional state. Within this context, the restrictions on the use of P’s devices for which the local authority seek authorisation do not, in MacDonald J’s judgment, by themselves constitute an objective component of confinement of P in a particular restricted place for a not negligible length of time. In the circumstances, whilst they are steps at times taken without P’s consent and are imputable to the State, those restrictions do not, by themselves, meet the first Storck criterion.

MacDonald J accepted, as per the decision in Guzzardi v Italy, that in an appropriate case it is possible to be satisfied that individual measures imposed on a child, when considered cumulatively and in combination, can amount to a deprivation of liberty for the purposes of Art 5(1), even if those elements do not have that effect when viewed individually. MacDonald J further accepted that in Cheshire West, the proposition that continuous supervision and control is relevant only in so far as it demonstrates that the person is not free to leave was rejected by Baroness Hale. In MacDonald J’s judgment however, if the court is to authorise an element of supervision or control on the basis that it constitutes, either in whole or as part of the whole, a deprivation of liberty for the purposes of Art 5(1), there must be at least some evidential basis for concluding that that element of supervision and control constitutes an objective component of confinement in a particular restricted place for a not negligible length of time. Otherwise, the court would be able to authorise by reference to Art 5(1) any and all measures in the package of care provided to P in placement, even if they had nothing to do with restricting her physical liberty. MacDonald J concluded that this would be an undesirable outcome.

This left MacDonald J with the question of under what legal framework could the restrictions on the use of P’s mobile phone, tablet and laptop and the use of social media that the professionals caring for P contend are necessary to keep her safe be implemented. MacDonald J concluded that the appropriate legal framework is that provided by s.33(3)(b) of the Children Act 1989.

In the circumstances, MacDonald J could see no principled objection to the local authority seeking to remove or restrict the use of P’s mobile phone, tablet and laptop and use of social media under the powers conferred on it by s.33(3)(b) of the Children Act 1989, provided it is necessary to do so in order to safeguard and promote P’s welfare. MacDonald J considered that in such circumstances, the local authority would be acting lawfully under the power conferred in it by s.33(3)(b) of the Children Act 1989 were it to confiscate P’s phone, tablet or laptop in the face of her objection. Likewise, in such circumstances it was considered that the local authority would be acting lawfully pursuant to its powers under s.33(3)(b) of the Children Act 1989, if took other steps to restrict or monitor the use by P of her phone, tablet, laptop or of social media, including refusing to fund top-ups, refusing to pay the bill for the phone and turning off or restricting the Wi-Fi in the face of her objection.

Outcome: MacDonald J refused to sanction the removal of, or the restriction of the use of P’s mobile phone, tablet and laptop and her access to social media by way of an order authorising the deprivation of her liberty for the purposes of Art 5(1) of the ECHR. MacDonald J instead, made a declaration that it is lawful for the local authority to impose such restrictions in this regard as are recorded in the order in the exercise of the power conferred on it by s.33(3)(b) of the Children Act 1989. Whilst MacDonald J was satisfied that, were the evidence to justify it, it would be open to the court to grant an order under its inherent jurisdiction authorising the use of restraint or other force in order remove P’s mobile phone, tablet and laptop from her if she refused to surrender them to confiscation, the evidence currently before the court does not justify such an order being made. Finally, MacDonald J was satisfied that the other restrictions sought by the local authority do constitute a deprivation of liberty for the purposes of Art 5(1) and that it is in P’s best interests to authorise that deprivation of liberty.

At para 70, MacDonald J highlights that “Dicey considered the right to liberty to be one of the general principles of the Constitution (see Dicey, A V An Introduction to the Study of the Law of the Constitution (1885) 9th edn, MacMillan 1945, p 19). In R v Secretary of State for the Home Department ex p Cheblak [1991] 1 WLR 890, Lord Donaldson observed that “We have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms.” Within this context, it essential that the State adhere to the rule of law when acting to deprive a child of his or her liberty. This will extend to ensuring that an order lawfully depriving a child of his or her liberty does not act also to deprive that child of other cardinal rights without there being in place proper justification for such interference by reference to the specific content of those other rights”.

MacDonald J ended his judgment with the following paragraph “Each case will fall to be determined on its own facts. However, I venture to suggest that it will not ordinarily be appropriate to authorise restrictions on phones and other electronic devices within a DOLS order authorising the deprivation of the child’s liberty. Further, it is to be anticipated that, in very many cases, any restrictions on the use of phones and other devices that are required to safeguard and promote the child’s welfare will fall properly to be dealt with by the local authority under the power conferred on it by s.33(3)(b) of the Children Act 1989. Only in a small number of cases should it be necessary to have recourse to an order under the inherent jurisdiction, separate from the order authorising the deprivation of liberty, authorising more draconian steps to restrict the child’s use of a mobile phone or other device and only then where there is cogent evidence that the child is likely to suffer significant harm if an order under the inherent jurisdiction in that regard were not to be made”.