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Secure accommodation and seventeen year olds

 

This is a decision of His Honour Judge Wildblood QC, sitting as a High Court judge

A County Council v B 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/4654.html

 

It involved a seventeen year old whose behaviour was such that the Local Authority wanted her to be placed in secure accommodation.  However, given that she was 17, that causes some problems with the statutory provisions.

This is undoubtedly an extraordinary case. It is also one where, on paper, there is every reason to have grave concern for C. The psychiatric evidence that has been prepared by Dr Yates and Dr Leonards ultimately concludes that C is of capable of detention under the Mental Health Act 1983. There are various suggestions about her state of health, including a suggestion that C may have a conduct disorder, which Dr Yates thought has increased in severity. I make no adjudication, of course, in relation to that. The anxiety about C’s vulnerability and potential for harm is entirely genuine and requires analysis of fact at a subsequent hearing. The extraordinary circumstances of this case include, however, the following: (1) C’s age; (2) the fact that she has herself had a child; (3) the fact that, at the time these proceedings started, she was not in local authority accommodation or subject to any other statutory scheme relating to her; (4) the reported degree of vulnerability that she bore.

 

In this particular case, the Local Authority were NOT accommodating C, and would have been in some difficulties in doing so  (they could not obtain a Care Order or Interim Care Order on her, because she was over 17, voluntary accommodation becomes tricky because the grandmother who had a residence order and hence PR was objecting to C being placed in secure accommodation)

The issue therefore was whether the Court had the power, using the inherent jurisdiction, to detain C in secure accommodation.

 

  • The orders that were made in the X District Registry are undoubtedly orders that require the provisions of section 100 of the Children Act 1989 to be considered. By subsection (1) and (2) of that section, it is provided as follows:

 

 

“(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2) No court shall exercise the High Court’s inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child.”

Where a child is made a ward of court, custody of the child vests in the court. Therefore, an order making C a ward of court, but granting custody of her to the local authority, is, I think, inherently contradictory. Further, the provisions of paragraph 1 of the orders made in the X District Registry, by which care, custody and control were granted to the local authority, must, in the manner of their drafting, be exactly that which is intended should not be ordered by reason of section 100 of the Children Act 1989. The much more difficult points that have arisen and which have occupied my mind for much of the weekend are these: (1) whether it could be said that C was a looked after child within the terminology of the Children Act 1989 at the time of the initiation of these proceedings; (2) whether, absent an order granting care, custody and control of C to the local authority, it would be permissible for the inherent jurisdiction to be used for C to be made a ward of court, and for the court then to direct her detention in secure accommodation.

 

Obviously the Court CAN’T ward C in order to compel the LA to provide her with accommodation, since this is barred in the Act. In this case, the LA were willing to provide that accommodation, so the Court was not compelling them to do this.

 

But, COULD the Court use their inherent jurisdiction in this way?

 

 

  • The case therefore has been argued on the basis that, under the inherent jurisdiction of the court, the court can direct the detention of a minor in secure accommodation. That is a point upon which Miss Campbell has done some considerable research, and has finally persuaded me, and indeed the other advocates, that her submission on this point is correct. It is a demonstration of what skill and hard work can produce.

 

 

 

  • There is case law that of course needs to be considered. I have looked at the decision of Wall J in Re C [1997] 2 FLR 180. That case related to the detention of a minor in a clinic. The facts of the case were, therefore, essentially different. The learned judge however had to consider whether the clinic concerned was secure accommodation, and concluded that it was not. The headnote to the case reads as follows:

 

 

 

“In exercising the court’s inherent jurisdiction over minors, the test to be applied by virtue of section 1 of the Children Act 1989 was whether or not the order sought was in the minor’s best interest.  There was no doubt in the present case that the treatment offered by the clinic was appropriate to C’s needs and that detention was an essential part of the treatment and therefore that the order fulfilled that test. C’s objection to the order, though a matter to be considered, could be overridden for the same reason, particularly in view of the psychiatrist’s opinion that she was unable to weigh treatment information and accordingly lacked the capacity to give valid consent or refusal to the treatment proposed. 

 

The court’s powers under the inherent jurisdiction were not ousted by the statutory scheme laid down by Parliament in section 25 of the Children Act 1989 and regulation 7 of the Children (Secure accommodation) Regulations 1991, because all the evidence as to its regime demonstrated that the primary purpose of the clinic was to achieve treatment, and that the restriction of liberty was only incidental to that end and therefore that the clinic was not “secure accommodation” within the meaning of the Act and the regulations.

 

Accordingly, this was a proper case for the exercise of the inherent jurisdiction. In making an order under that jurisdiction the court would have regard to the scheme laid down by Parliament in the Act so as to ensure that the rights and safeguards provided for the child by section 25 were available and would extend the period of the order made at the previous hearing to a date not later than a specified date.”

 

Therefore, that case is one of some value on this point, but is not determinative of it. Specifically in relation to secure accommodation, Wall J said this:

“C is not a child who is, or who ever has been looked after by a local authority. She has never been in care, nor has she been provided by the local authority with accommodation within section 22(1) of the Children Act. The local authority is not funding the current placement at the clinic. That, however, is not the end of the matter. By regulation 7 of the Children (Secure Accommodation) Regulations 1991, section 25 applies to children who are accommodated by health authorities.”

He went on to consider that. He went on to say:

“The use of the words ‘application to the court under section 25… shall… be made only by…’ clearly limits the persons or bodies who may make applications for secure accommodation orders, and thus restricts the powers of the court to make such orders. It follows that if (1) the clinic is secure accommodation and (2) falls within the category of persons set out in either limb of regulation 2 of the Children (Secure Accommodation) (No 2) Regulations the inherent jurisdiction of the court is ousted and for C to be detained in a clinic, an application under section 25 of the Act will need to be made pursuant to the regulations. I have to say that I find the regulations difficult to construe. Mr Munby conducted a detailed analysis of the regulations in the skeleton argument. I do not propose to repeat that exercise in this judgment, helpful as it was. The critical question seems to me to be, is the clinic secure accommodation? If it is, then the question of the construction of the regulations and their application to the instant case must be addressed. But, if it is not, detention in the clinic is outside the statutory scheme and the major inhibition on the use of the inherent jurisdiction disappears.”

 

  • In the course of argument, Miss Campbell considered that point, and then went on to refer me to the case of Re PS (An Adult) [2007] EWHC 623 (Fam), in which Munby J (as he then was) considered the extent of the wardship jurisdiction and said this:

 

 

“Is there power to detain?

16. It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court’s powers extend to authorising that person’s detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there… 

17. So the jurisdiction is clear. How should it be exercised?”

Munby J (as he then was) went on to say:

“18. Detention in the sense in which it is here being used will inevitably involve a “deprivation of liberty” as that expression is used in Article 5. Since the court is a public authority for this purpose…any exercise of its inherent jurisdiction must…be compatible with the various requirements of Article 5.”

 

  • The interplay between Article 5 of the European Convention and the secure accommodation provisions has been considered by the Court of Appeal in the case of Re K (Secure Accommodation order: Right to Liberty) [2001] 1 FLR 526. Article 5 provides, insofar as relevant, as follows:

 

 

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.”

The term “educational supervision” has been given a broad definition within the case of Re K (to which I have already referred), and secure accommodation of the sort that arises in this case would not offend the provisions of Article 5, as long as it is demonstrated that it is for the purposes of educational supervision as defined in that case. The consideration of the Convention does not end at Article 5 however. Article 6, of course, provides the right to a fair trial. C is represented at this hearing very ably by Mr Farquharson, and there has been an open and full debate about the merits of the case and the legal jurisdiction for the application. There is no suggestion of unfairness in the trial process. Article 8 of the European Convention is also engaged. It provides that:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary…for the protection of health or morals, or for the protection of the rights and freedoms of others.”

I have omitted certain parts of the Convention Article where they do not bear relevance to this case.

 

  • The right to respect for one’s private and family life must bear with it a right not to be detained in secure accommodation. Secure accommodation can only be justified on a number of legal bases, that amongst them includes the provisions of Article 8(2). For Article 8(2) to be satisfied, the action of the public authority, here the court, must be demonstrated to be in accordance with the law; secondly, necessary for the protection of the rights and freedoms of C; and, thirdly, proportionate. I remind myself, of course, that secure accommodation involves the deprivation of liberty, and thus the liberty of the subject is engaged, and it is also one of the most draconian orders that can be made in relation to the placement of a child within the available armoury of the court. Therefore, very serious issues indeed arise under this provision, and there has to be strong and legal justification for intervention under the secure provisions.

 

 

 

  • The position that has ultimately been achieved at this hearing through the diligence of counsel is that the inherent jurisdiction of the High Court is theoretically limitless. In circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child, with the exception of the requirement that the child is looked after by the local authority, it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation. I accept Miss Campbell’s submission, on reflection, that the guidance and the authorities suggest that where the wardship court does exercise that jurisdiction, it must do so in a way that is compatible with the limitations imposed by statute. But the existence of the jurisdiction to make orders detaining children under the inherent jurisdiction is now established in argument before me, and therefore I conclude, as a matter of law, that it is permissible to order that a ward of court be detained in secure accommodation. The individual facts of individual cases have to be considered, and I am not, by this decision, indicating any conclusions about whether C should be further detained in secure accommodation. That will be for another day.

 

This is, therefore, authority for the proposition that the inherent jurisdiction can be used to authorise the detention of a 17 year old in secure accommodation if it is not possible to achieve the same outcome using section 25 of the Children Act 1989.

 

I have to share my disquiet about this – not that I think that the Judge is wrong in law – the authorities cited do indeed lay those foundations, but about where this takes us.

I really am increasingly uneasy about the expansion of the inherent jurisdiction – and phrases like “the inherent jurisdiction of the High Court is theoretically limitless” don’t reduce that feeling in the slightest.  The problem is that inherent jurisdiction gets used in cases as the “get out of jail free card”  (or the reverse in this case), coming to the rescue where there is a desired result but one that can’t be achieved within the Statute.  That decision then gets cited in the future as authority for ‘theoretically limitless powers” and we keep building up these powers to do things that cause me a considerable amount of anxiety.

 

Don’t get me wrong – if someone in this country has to have ‘theoretically limitless power’,  I’d rather it was High Court Judges than anyone else, but I just don’t think anyone should have limitless power. Nobody.  Limits to power are what help us sleep soundly in our beds.

If the inherent jurisdiction can be used to achieve secure accommodation on someone (who let us not forget is old enough to join the army) then do we end up sidestepping the statutory requirements in s25 – the LA need to meet a rightly high hurdle to seek secure accommodation, but there is no statutory test for the use of inherent jurisdiction in this way.  Parliament set the framework for s25, and could easily, if they had wished, said that the Local Authority could seek such orders up until the young person’s 18th birthday, with any detention after that being through either the Mental Health Act or the Mental Capacity Act.

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

5 responses

  1. That was the “does the Court have the power” judgment – the “should the Court exercise that power” is also up

    http://www.bailii.org/ew/cases/EWHC/Fam/2013/4655.html

    Findings :-

    My findings are these.

    1. That C is at imminent and prevalent risk of causing herself and others serious harm. The risk of harm to herself and others is foreseeable and highly probable to occur. Therefore, section 24(1)(b) of the Children Act is satisfied.

    2. C is not detainable under the Mental Health Act 1983.

    3. C is an extremely vulnerable young person. If returned to the community now, it is highly probable that she will engage in criminal activity involving drugs, drink and violence.

    4. C has no adult perception of the risks that she poses to herself.

    5. C has no available accommodation, and any accommodation that she might find in the community is likely to be very short lived. The suggestion of accommodation in Exeter and Bristol would not provide any likelihood of her achieving stability. I think it highly likely that she would not remain in any such accommodation.

    6. C is not able to organise herself in the community in a way that would avoid the harm that she represents to herself and others.

    7. No other arrangement is identifiable for her in her current circumstances other than her current placement in the Secure Accommodation Unit.

    8. She is being detained at her liberty at the Secure Accommodation Unit and, therefore, Article 5 is engaged.

    9. In the broad sense of the words, she is receiving educational supervision in the Secure Accommodation Unit.

    10. The pressing social need for her detention plainly outweighs her right to liberty. How could it be correct to return her to the community when it is foreseeable and highly probable that she will harm herself and others.

    11. The means suggested, i.e. detention in the Secure Accommodation Unit by way of secure accommodation provision, are rational, fair, and not arbitrary. The need for such orders is demonstrated on evidence that I have accepted and which has been carefully provided.

    12. No less a provision than secure accommodation would suffice. There is no alternative arrangement available. To return her to the community would be to wash one’s hands of her welfare. Thus, insofar as there is a welfare determination to be made, her welfare demands that she remains in this current placement as suggested.

    13. I have read the papers, heard evidence, and full legal argument. I have given exceptionally anxious thought to this case since it first came before me. I have required a hearing on the legal issues that have arisen, and have identified the scope within which I must operate. I have analysed the case to the best of my ability. I do not regard this as a mere discretionary decision. It is an analytical and evidential one.

    14. The order that has to be made is an order continuing the detention of C at the Secure Accommodation Unit. That order must be for the shortest possible period that is proportionate to the circumstances that I have found to exist. It must be for the minimum period that is necessary to satisfy the legal and analytical considerations that I have given.

    15. Anything less than 8 weeks would serve no purpose, in my judgment, and would be detention for the sake of it. The educational supervision proposed by the local authority has to involve the attempt at therapeutic provision by Dr Cratchley, who has, I understand, particular experience in this field. That overall educational supervision must take place over an 8-week period if it is to have any purpose. Less than that would mean that there would be no real chance of C engaging in the package of educational proposals that have been made for her at the Secure Accommodation Unit.

    As a last resort, therefore, and in the absence of any other provision that could meet the demands of this case, I am driven to conclude that a further period in secure accommodation must be ordered

  2. Jerry Lonsdale

    When you stretch an elastic band there is only so much tension it can bare until it snaps

    • I think I am a lone voice about inherent jurisdiction – I worry not so much about what it is doing right now, but what all these cases saying “theoretically limitless power” might end up sanctioning in the future.

      • Jerry Lonsdale

        I would not say your alone on this or should I say I hope your not alone on this, the above case reminds me a lot about the recent judgments regarding DoLs cases.

        Where exactly is the bar set in principles of Inherent Jurisdiction, is there one, no, or should there be one, yes,

        As you know with the Inherent Jurisdiction, that alone allows the courts to hear ANY application, whether justifiable or not, very recently with that case last week whereby Nigel Evans MP was cleared of all charges put before him, the CPS has faced much criticisms for even bringing the trial to court, there was once such a time when the courts could prevent a prosecution for abuse of process, that principle was removed and placed on the onus of the prosecutor, following last week’s verdict on the MP’s case one would suggest that the powers need to be restored back into the hands of the courts to decide if a) prosecution is right and just and b) is it in the public interest.

        I have dealt with many inherent jurisdiction issues in the past few years, in most cases the outcome has led to appeal, one you will remember was the Wardship case and the use of PD 12D

        PRACTICE DIRECTION 12D – INHERENT JURISDICTION (INCLUDING WARDSHIP) PROCEEDINGS

        The nature of inherent jurisdiction proceedings
        1.1
        It is the duty of the court under its inherent jurisdiction to ensure that a child who is the subject of proceedings is protected and properly taken care of. The court may in exercising its inherent jurisdiction make any order or determine any issue in respect of a child unless limited by case law or statute. Such proceedings should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

        As you know we persuaded the COA to set aside CO and put in place the Ward ship Order, in that matter it worked very well and if I remember rightly it was the respondents argument who said that the PD 12D was poorly written,

        Simply using 1.1 In the matter above, it is quite right that you question where does it end, making ANY order, now if the courts feel the order is necessary doesn’t always mean it should make the Order, and, as readers of this blog would argue sometimes the courts clearly make the wrong orders.

        The case above does leave somewhat of an unpalatable taste in that it seems on face value I-J was used as a tool to force the child into a secure unit, a child 17 years old surely cannot be forced for much longer owing to the age of the child by reading the case as published one could say it will not be long until the child reached the age of 18, then becomes an adult, will we see a second outing in this case when the child does reach 18 and the Local Authority want to keep the “Child” in the secure unit until say the child reached 21

        One Question on the tip of my tongue is what happened to the Child previously to being faced in this positionm while in Grandmothers care, was there the “Support Package” there, I cannot accept the child just apparently became “A Handful”

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