‘Presedent’ Revisited – Section 20 may not require consent

Earlier today, @suesspiciousmin tweeted that a new case might have rebooted the stream of section 20 compensation claims:

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I couldn’t wait for his commentary, I had to search the case out for myself, and it is this case here: London Borough of Hackney v Williams & Anor [2017] EWCA Civ 26 (26 January 2017).

Not least, section 20 is an issue I’ve written about on a number of previous occasions, over a number of years, including:

A review of my previous posts will reveal that I have held to a very difficult line. On the one hand, I have defended the flexible use of section 20, against those who would argue that it is unjust to use a so-called “voluntary” provision when in truth you have powers of compulsion available, because it denies parents the opportunity to test whether the threshold is crossed. I have defended it on the grounds that it is a useful tool in the social worker’s toolkit, expanding the scope for non-compulsory intervention, since even when the threshold might be crossed, parents might prefer to work co-operatively with the local authority. On the other hand, I have not defended misuse, and have been clear in particular that it is quite right that section 20 should not be “compulsion in disguise”, and should be underpinned by informed consent.

So I sought out today’s case, with some trepidation, to see whether I would have to review and revise the line that I have taken. And my conclusion is: no, I do not need to review and revise that line. But unfortunately, that is in part because this is not really a very good decision of the Court of Appeal. Disappointingly, it is weak and loosely reasoned on the very points where it needs to be a model of clarity.

I am going to make my points by comparing and contrasting the issues that arise out of just two of the cases considered by the Court of Appeal today. Both are decisions of Munby, one when he sat as a High Court Judge, and the latter sitting in the Court of Appeal and as President of the Family Division. For reasons that will become apparent, I will consider the latter first.

N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015)

In this case, the President took the opportunity to review a long line of section 20 cases. Along the way, he approved the reasoning of a number of decisions of lower courts. He also significantly extended the requirements for valid consent to section 20 accommodation, making clear that:

i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.

ii) The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.

iii) The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.

iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).

v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’

These requirements are problematic. Such requirements for a valid section 20 agreement go way beyond the bare requirements of the statute that there should be no objection. Accompanied as it is by threats of damages, it smacks of judicial activism, looking more like rewriting the statute than interpreting it.

Some of us have coined the term ‘presedent’ to highlight this phenomenon:

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‘Presedent’ is a hybrid of President and precedent, and is intended to reflect the tendency of the President of the Family Division to say things in the context of delivering judgments, in the expectation that they will be treated as judicially binding precedent. For the more legally pedantic among us, something is not binding precedent just because a judge has said it: it needs to form part of the ratio of the case, which means effectively that it is only that part of the judge’s reasoning that was necessary to decide the issue in the case that is binding. But this is a subtle point. For most practitioners of other professions – and it should be recalled that these remarks were directed to another profession, namely the social work profession – the key idea about caselaw and precedent is to ensure that similar cases are decided in similar ways, and they do not want to be troubled by trying to distinguish ratio decidendi from obiter dicta.

Since the President makes a habit of this, many of us myself included would have really welcomed some sort of clear judgment that explains when the President’s words matter and when they don’t and can safely be ignored. And to be fair, the Court of Appeal had a go. It repeatedly referred to the principles established in the line of caselaw on section 20 as good practice guidelines, thereby distinguishing it from law. It observed that the comments on section 20 in this case were unnecessary to this judgment. And it pointed out that the focus of today’s case was a claim for compensation, underpinned by a claim of breach of statutory duty, and that a breach of statutory duty has to relate to the wording of the statute – section 20 – rather than a later line of caselaw. So far, so good.

And yet… And yet… I’m afraid that what it says about good practice guidelines just doesn’t stack up. Let’s turn to the other case, the one that started it all off, the Nottingham Baby case:

G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008)

By way of reminder, in this case, a baby was removed at birth, from a hospital, without a care order. In its defence, Nottingham highlighted that this course of action had been in the birth plan drawn up in advance, which the mother knew of, and to which she had not objected. Munby was scathing about this defence:

But the local authority here seemed to be going far beyond this. It seemed to be conflating absence of objection with actual consent – a doctrine which at least in this context is, in my judgment, entirely contrary to principle and which, moreover, contains within it the potential for the most pernicious consequences, not least because there are probably many mothers who believe, quite erroneously, that a local authority has power, without any court order, to do what the local authority did in this case.

To equate helpless acquiescence with consent when a parent is confronted in circumstances such as this with the misuse (or perhaps on another occasion the misrepresentation) of non-existent authority by an agent of the State is, in my judgment, both unprincipled and, indeed, fraught with potential danger…

Submission in the face of asserted State authority is not the same as consent. In this context, as in that, nothing short of consent will suffice.

I want to make two points quite forcefully about Munby’s reasoning in this case.

Firstly, for my part, I am in no doubt that this was the ratio of the case (the bit that even the legally pedantic approach to precedent would accept is legally binding). It is a specific rebuttal of the heart of Nottingham’s defence, that the mother had not objected. Even the Court of Appeal today seems to accept that it was the ratio of the case (“Munby J’s decision on this point may have been determinative and have led to his overall conclusion”, paragraph 69). If Munby was wrong, the way to change the precedent was to appeal it. It was not appealed, and it has instead been approved on countless occasions subsequently, including by the Court of Appeal itself.

Secondly, for my part I am equally in no doubt that it was correctly decided. The Nottingham case was not a compensation case, it was a judicial review. Judicial reviews are challenges by the citizen to the state, that the state has acted unlawfully due to some form of recognised conspicuous procedural unfairness. These forms of conspicuous procedural unfairness have been established in the case law of the Administrative Court. When Munby held for the reasons he did that consent was required and not merely the absence of objection, this was not on the basis of pure statutory construction, but on the basis of well-established administrative law principles of fairness in the relationship between the citizen and the state. When the Court of Appeal today says as it does in paragraph 77 that a breach of these principles of fairness “does not found an action for judicial review”, I think it is simply wrong: an action for judicial review is exactly what it does found.

So, in highlighting that the detailed procedural requirements established in N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015) are merely good practice guidelines, the Court of Appeal may have done us a favour. But in going further, and suggesting that the principles of procedural fairness that underpinned the earlier decision in G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008) might equally be merely good practice guidelines, the Court of Appeal has done us no favours at all.

I cannot think that this case will be the last word on the matter.

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11 thoughts on “‘Presedent’ Revisited – Section 20 may not require consent

  1. Reblogged this on | truthaholics and commented:
    “To equate helpless acquiescence with consent when a parent is confronted in circumstances such as this with the misuse (or perhaps on another occasion the misrepresentation) of non-existent authority by an agent of the State is, in my judgment, both unprincipled and, indeed, fraught with potential danger…

    Submission in the face of asserted State authority is not the same as consent. In this context, as in that, nothing short of consent will suffice.”

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  2. A fascinating exploration, thank you.

    Could you please point to where G,R v Nottingham CC [2008] EWHC 400 (Admin) has been endorsed by the Court of Appeal? A quick preliminary search on Westlaw and Lexis threw up no CA citations, let alone endorsements, for me. As you rightly point out, the President’s precedents have a tendency to be reified.

    If it has not been endorsed previously by the Court of Appeal, this new judgment may kick into touch the requirement for consent for s.20 more firmly than it first appears, with the brotherly deference for Sir James masking but not negating the effects of what seems, on consideration, to be a judicial smack-down based on statutory construction principles.

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    1. Well, it may be a little self-serving, but it is cited with approval in W (Children) [2014] EWCA Civ 1065 (25 July 2014) at paragraph 34; and that pararaph itself is further cited with approval in N (Children : Adoption: Jurisdiction) [2015] EWCA Civ 1112 (02 November 2015) at paragraph 163.

      I say self-serving because of course both of those are judgments of the President, approved by the remaining members of the court. But so far as I understand, being elevated to a higher court and then approving yourself is not in itself contrary to the doctrine of precedent. Certainly, the reverse has happened: in M, R (On The Application of) v Slough Borough Council [2008] UKHL 52 (30 July 2008) at paragraph 42, Lord Brown shamefully helped overturn his own humane judgment in the Court of Appeal that had sustained destitute migrants for the best part of a decade, with these ominous words:

      “It would be wrong to reverse the Court of Appeal’s decision here without recognising my own part in their mistaken approach…”

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      1. With respect, it does appear that both of these Court of Appeal authorities deal with s. 20 as a side matter, where Sir James has shoehorned into these cases his hobbyhorse view on what was within both cases a peripheral issue. As such, they would be viewed as obiter dicta, which will have given Sir Brian Leveson the opportunity to classify them as “guidance”, but not legally binding.

        I do not think it is an accident that the President of the Queens Bench sat on this case. He appears, politely but firmly, to have stated that Sir James Munby’s views on s.20 are not the law. Relegating them to the realm of “guidance” means, of course that social workers now have a framework to deal with issues of consent, but that no action will lie against the Local Authority for accommodation under s.20 without consent where a parent does not positively object.

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      2. Well, I am not sure whether we disagree or not. I agree that the Court of Appeal’s endorsements of Nottingham are not within the ratio of the respective decisions – I provided them because your earlier comment said you had found “no CA citations, let alone endorsements”. I also agree that, within the context of an appeal from a compensation case, the President of Queen’s Bench “appears, politely but firmly, to have stated that Sir James Munby’s views on s.20 are not the law.”

        Where we may disagree though is whether ordinary administrative law principles actually bite to raise the test from absence of objection to fair dealing, so that unfair dealing is actually a departure from administrative law standards and not merely from guidance. Past cases referencing section 20, for example, have included:

          * where the parent who did not object was completely unaware that their child had been accommodated (Medway Council v M & T (By Her Children’s Guardian) [2015] EWFC B164 (13 October 2015));
          * “an enforced section 20 agreement with the parents in the presence of two social workers and four police officers (three of whom were uniformed)” (E (A Child), Re [2013] EWHC 2400 (Fam) (30 July 2013))
          * where the parents did not object because they lacked capacity (e.g. Newcastle City Council v WM & Ors [2015] EWFC 42 (08 May 2015))
          * where initial agreement is followed by drift and failure to work with the family (e.g. P (A Child: Use of S.20 CA 1989) [2014] EWFC 775 (16 December 2014))

        In each of these examples, in my assessment, the absence of positive objection turns the use of section 20 not merely into a failure to follow guidance, but a failure to adhere to administrative law principles, from which a cause of action (even if not a compensation claim) will lie.

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  3. I think I we agree, and thank you for both your original post and your thoughtful responses.

    I absolutely take your point that your administrative law “fair dealings” point comes into play. I would also venture to suggest that the statute itself makes this clear. Section s.20(7)(b) necessarily implies that in order for an accommodation by the Local Authority to be lawful, an opportunity to object must to be accorded to every available person holding parental responsibility.

    As I see it, the distinction between consent and lack of objection may be illustrated by a situation where a parent is told by social workers that emergency powers will be sought if the child is not accommodated and, having had their rights explained, is given the choice to object to the accommodation or not. Assent would not be seen as consent (as the decision is taken under duress) but the accommodation would still be lawful under s.20. This should, of course, be followed by immediate initiation of proceedings or swift rehabilitation, and would only be appropriate in exceptional circumstances. If this is correct, Hackney v Williams substantially narrows the range of circumstances under which non-consenting parents may pursue local authorities under judicial review as a result of s.20 accommodation.

    Judicial review would, I suggest, come into play at the point where the parent is either incapable of objecting or not given the chance to object, making the decision to accommodate under s.20 unlawful. Scenarios include:
    – Parent lacking capacity (Coventry CC v C.B. [2012] EWHC 2191)
    – Parent insufficiently informed of rights (Williams v LB Hackney [2015] EWHC 2629)
    – Parent hospitalised due to mental ill health (Re AS (unlawful removal of child) [2015] EWFC B150)
    – Contrary plan agreed, accommodation immediately post-birth (G v Nottingham CC [2008] EWHC 152)
    and your examples:
    – Parent unaware of accommodation (Medway Council v M&T [2015] EWFC B164)
    – Parent subject to disproportionate force (E (A Child), Re [2013] EWFC 42)
    – Parent lacking capacity (Newcastle CC v WM & Ors [2015] EWFC 775)

    Drift following s.20 accommodation and prior to issuing proceedings would, I suggest, be a separate consideration.

    Thank you again for highlighting this judgment, and for the opportunity to process its implications.

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  4. When will a parent be truly free to object to s20 ?

    As, if asked do they object before signing, the fact, that if they do object, a care hearing will continue, or an application be commenced will be implicate from the power the LA have .

    Is this ‘fair dealings’ should the parents then agree ?

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