The London Borough of Ealing v Mother & Ors [2023] EWFC 201

This judgment concerned an application made for a care order and considered the use of s.20 agreements following the recent Court of Appeal decision of Re S (a child) and Re W (a child) [2023] EWCA Civ. This case is also a helpful reminder that there is no automatic prohibition on contact taking place overseas, even to a Non-Hague Convention Country.

Summary of Judgment:

His Honour of Judge Willans was concerned with the welfare of a 13-year-old boy who was subject to an application for a care order. The local authority (‘LA’) was concerned with allegations of domestic abuse, the child having low mood and suicidal thoughts, mother being evicted from her property, mother physically chastising the child, mother struggling to care for the child alone, limited progress being made under the Child Protection Plan, father residing abroad, father previously being inconsistent with contact, and mother refusing to engage with the LA. Due to these concerns, an interim care order was made in February 2023 and the child was placed into temporary foster care.

During proceedings, the child was largely opposed to having contact with his mother, however, was having regular contact with his father. The child had overnight contact with his father overseas in a Non-Hague Convention Country. Prior to the final hearing, the child met with HHJ Willans and confirmed he did not wish to return home to his mother.

At the outset of proceedings, the LA and father sought for the child to be placed under a supervision order and child arrangements order (live with father); this was on the basis that the child would be placed into a privately funded boarding school in the UK or abroad. This view altered once the child made clear that he opposed being placed overseas and going to a boarding school. The father raised whether a s.20 Children Act 1989 (‘s.20 agreement’) foster care placement should be made instead of a care order. Mother sought for the return of the child into her care but supported a s.20 agreement in the interim until she had obtained a suitable housing.

During mother’s evidence, she maintained that the child wanted to live with her and that that the crux of LA’s decision to issue proceedings was because of her housing situation. Mother confirmed she did not trust professions, would not work with the LA going forward and viewed physical chastisement as a reasonable action to take. The social worker concluded that a s.20 agreement would not be in the child’s best interest given the difficulty with the parents communicating, father living abroad and father at times being non-contactable. Having reflected on the evidence and the strong wishes of the child, the father agreed that a care order was necessary.

In reaching his judgment, HHJ Willans placed particular emphasis on the child’s wish to remain in the placement where he was thriving, the importance of the child having consistent and predictable care on a safe basis, being in a placement which upholds his cultural identity and ethnicity, mother’s lack of insight into the LA’s concerns and her unwillingness to work with the LA. It was determined that it would be in the child’s best interests for a care order to be made and for the child to be placed into foster care. In relation to contact, it is agreed that the child will maintain his relationship with his father and mother’s contact will progress organically; it was felt specific contact arrangements may increase the likelihood of the relationship breaking down. HHJ Willans confirmed he would write a short letter to the child to inform him of his decision.

Discussion:

S.20 Agreements

s.20 agreements allow parents to enter into a written agreement for their children to be voluntarily accommodated by a local authority. S.20 agreements do not provide a local authority with overriding parental responsibility (in contrast to a care order) and such agreement can be terminated by a parent at any point.

Although s.20 agreements are often utilised for short term placements, it is now well established through Re S (a child) and Re W (a child) [2023] EWCA Civ 1 that such agreements can regulate long-term placements. In this case, King LJ recognised that a s.20 agreement does not provide a statutory limit of how long a child can be accommodated for and provided there is parental support for the placement and unlikely disruption, s.20 agreements provide the least interventionalist approach the court should seek to achieve. Re S (a child) and Re W (a child) established it would be disproportionate to make care orders where the only concerns were that a parent may terminate a s.20 agreement or that a child’s future behaviour may become challenging.

Despite this, HHJ Willans determined a s.20 placement would not be appropriate in this case. A key concern was mother’s refusal to work with the LA. This concern was supplemented by mother seeking the return of the child into her care, poor communication between the parents, and father residing outside of the country.

This judgment is a helpful reminder that while s.20 agreements can be made on a long-term basis, each case will be determined on its own set of facts. Given s.20 agreements require cooperation from those involved, a real focus will be on whether a parent has a proven and genuine willingness to work with the local authority. The court will also consider the practicalities of the arrangements and if it would be in a child’s best interest for a local authority to hold overriding parental responsibility.

Contact Overseas

At paragraph 5 of his judgment, HHJ Willans stated: “It is an unusual feature of this case that, by agreement, the child has spent time overseas with his father in the course of the proceedings – including in country X which is a Non-Hague Convention Country”.

Understandably, whilst in care proceedings, local authorities and the court may be reluctant to permit contact overseas. As care proceedings can conclude that a child is to the removed from their parents, should contact take place overseas, there is a possible incentive for parents not to return to England and Wales; such concerns are heightened if a Non-Hague Convention Country is involved.

This case, however, reiterates that an interim care order does not create a statutory prohibition on overseas contact taking place. Rather, each case will be considered on its facts. It is welcoming to see that the LA in this case, despite the well-known associated risks, did not prevent contact with the child’s father taking place overseas. This judgment is a useful reminder that contact can take place overseas and should a local authority seek to prohibit such contact without justified reasons, that decision should be challenged. A parent’s transparency and proven willingness to work with a local authority will be an important factor considered when such situation arises.