Re S (A Child) and Re W (A Child)(s20 Accommodation) [2023] EWCA Civ 1
Joan Connell led by Deirdre Fottrell KC acting for an appellant mother and instructed by Elen Davies of Taylor Rose MW successfully appealed against an order placing child S in the long term care of a local authority under section 31. The issue was whether, in circumstances where the care plan was agreed for the child to remain in long term accommodation, it was better for the court to make no order pursuant to section 1(5) CA 1989 and the child to be placed under section 20, rather than to make a care order under section 31.
The leading judgment was handed down by Lady Justice King.
Threshold was found in both Re S and Re W on the basis of the child being beyond parental control, a finding which the Court of Appeal reminded us does not necessarily mean that the parents are culpable in any way. On behalf of the appellant it was argued that where a section 31 order is made the local authority may determine the extent to which the parents can exercise their parental responsibility and effectively ‘trump’ their decisions. By contrast a section 20 order requires the local authority and parents to work in partnership with each other. It was argued that where section 20 is functioning well under an agreed care plan, not only is the making of a care order not necessary but it is disproportionate.
The Court examined the leading authority of Williams & Another v London Borough of Hackney [2018] UKSC 37, [2018] AC 421 and the Public Law Working Group’s report on the use of section 20 accommodation (March 2021).
The Court of Appeal recognised that to date the case law regarding section 20 has focussed on the provision of short term accommodation. The Court confirmed that section 20 can be used to provide long term accommodation “provided that proper consideration is given to the purpose of the accommodation and that the regular mandatory reviews are carried out.”
Lady Justice King concluded by saying: “each of these two cases must 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 are meeting their respective needs in circumstances where both the 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 a section 20 order in this type of situation and it is hoped that this appeal will have served to fill that gap.”
The full judgment can be found at:
https://caselaw.nationalarchives.gov.uk/ewca/civ/2023/1
Joan was counsel at first instance and appeared on behalf of the appellant pro bono; she was ably assisted at appeal by Tatiana Rocha, a pupil at FOURTEEN.