You don’t often get secure accommodation judgments published, largely because they are usually decided by Justices rather than Judges so don’t fall into the publication scheme, but this one was decided by Mr Justice Hayden and throws up some interesting philosophical issues.
London Borough of Barking and Dagenham 2014
There’s an exercise in philosophy where one starts putting individual pebbles on a table. You add one at a time, every few seconds. At some point, what you have is a heap or a pile of pebbles. But if you are adding them one at a time, it is difficult to see the point at which you go from “non-heap” to “heap”. Equally, once you have a heap of pebbles and start removing one at a time, finding that precise point at which you’ve removed the pebble that turns it from “heap” to “non-heap” happens. Obviously we can all agree that 3 pebbles aren’t a heap, and that 300 are, but where that precise boundary line happens is much more fuzzy.
In this case, the heap issue arises in part on the legal test for making a Secure Accommodation Order (which, lets not forget, is an order that allows a family Court to sanction a child being locked up not as punishment for a criminal offence but for their own good)
“Use of accommodation for restricting liberty
(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty (‘secure accommodation’) unless it appears –
(a) that –
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.”
They are alternate tests – either (a) OR (b), you don’t have to satisfy both (though in many such applications, both limbs are satisfied).
Now, for ground (a) it all flows from “has a history of absconding”, so how many incidents of absconding amount to a history. One incident isn’t a history, fifty clear is. But at what point do the number of incidents crystallise into a “history”
For the purposes of this application, I find that SS has absconded on two occasions. I doubt whether that can truly be said to be a history of absconding and it is, as I said, significant that, on the second occasion, it was she who sought to return to the foster carer. I am, however, entirely satisfied that she is likely to abscond in the future, if not in secure accommodation, in the sense that there is a real possibility of her absconding. I am absolutely sure that she is at risk of significant emotional and/or physical harm were she to do so.
This was one of those cases where the child was the victim of Child Sexual Exploitation by unsavoury adults, but because of the difficulty in prosecuting such adults for their criminal behaviour, the child is locked up instead, a state of affairs which post the Rochdale child grooming debacle, is happening more and more.
- It scarcely needs to be said that restricting the liberty of a child is an extremely serious step, especially where the child has not committed any criminal offence, nor is alleged to have committed any criminal offence. It is for this reason that the process is tightly regulated by the Children Act 1989 in the way I have set out, but also in the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No.2) Regulations 1991. The use of s.25 will very rarely be appropriate and it must always remain a measure of last resort. By this I mean not merely that the conventional options for a child in care must have been exhausted but so too must the ‘unconventional’, i.e. the creative alternative packages of support that resourceful social workers can devise when given time, space and, of course, finances to do so. Nor should the fact that a particular type of placement may not have worked well for the child in the past mean that it should not be tried again. Locking a child up (I make no apology for the bluntness of the language, for that is how these young people see it and, ultimately, that is what is involved) is corrosive of a young persons spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution.
- The courts have seen a number of cases in recent years where vulnerable young girls have been exploited in a variety of ways by groups of predatory men. That so many of these men escape prosecution and continue to enjoy their liberty whilst the young girls they exploit are locked up (for their own protection) sends very confusing messages to the girls themselves, to the distorted minds of the men who prey on them and to society more generally.
- I have heard something of the regime the unit in which SS has been resident. I have no reason to believe that it is any different to any other of the welfare-based units. I equally have no doubt that those who run and work in them and the variety of disciplines which support such units are all highly motivated to help. There will be circumstances where young people have to be incarcerated to protect them, ultimately, from themselves.
- That said, I heard that this unit has what is referred to as an “air-locked security system”; that is to say that only one room can be left open at any stage. There is no computer access. There is a reward system by which privileges are both earned, and taken away. It is difficult not to see, from the eyes of the young people concerned, a custodial complexion to this environment. It has the most profound disadvantage in the case of SS in that it must surely reinforce her own already overactive sense of having done wrong.
- I do not criticise the structure or regime of this, or, indeed the other units. I recognise, as I have already stated, that they have a place in the panoply of strategies required to safeguard vulnerable children, but I was not satisfied that such a regime was a proportionate interference in SS’s life and so, to investigate it further, I asked Ms. Lewis, counsel on behalf of the Local Authority, whether she could contact senior officials within the unit so that I could have some closer idea both of the nature of the regime in operation and the philosophy which underpins it. At very short notice, the deputy principal was able to make herself available. She told me that, for young women in the situation of SS, such units could only really try and achieve one objective and that was to keep the young people concerned safe in a time of crisis “only long enough to find them somewhere more suitable”. That seems to me to crystallise the very limited scope of this provision.
There’s a peculiar wrinkle with the law on Secure Accommodation, which I was always surprised survived the Human Rights Act but still stands. It is this – unlike any other order in the Children Act which is subject to the “no order” principle and the “welfare paramountcy” principle, orders under s25 are MANDATORY if the Court find that the criteria are made out.
The role of the Court on secure accommodation applications is not, as with any other Children Act application, to decide on both the facts and what to do with those facts for the child’s best interests, but to simply decide whether factually the grounds for the order are made out, and if so to make the order.
The provision goes on, at subsection (3), to provide that:
“It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied (inaudible)”
“If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.”
This doesn’t always sit entirely comfortably with the suggestions and recommendations that a Secure Accommodation Order ought to be a last resort.
What is a Court to do where it considers that the s25 threshold is met, but that the making of a Secure Accommodation Order is not proportionate? (It surely HAS to consider whether it is proportionate, because it is an article 8 interference with the child’s right to private and family life) i.e, the LA consider that the case has reached that “last resort” stage, but the Court think that more could be done?
If the case is being brought on the second limb
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons
then the Court COULD conclude that really an attempt should be made to place the child in another form of accommodation with different resources and safeguards as one last try, and so the criteria is not made out.
What about the first limb?
(a) that –
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm;
That’s probably harder to resist – if factually there IS, a history of accommodation and if factually there IS a likelihood of significant harm if the child absconds again (and that likelihood is the ‘risk that cannot sensibly be ignored’ provided that there’s some factual basis for thinking that that risk exists), it is hard for the Court to avoid making the order, even if they don’t consider that Secure Accommodation is the right order for the child.
So you can see that the issue of what amounts to a history of absconding can be important as to whether the Court are in charge of the order, or whether they are just there to factually determine that the criteria are made out.
[This judgment is also a good go-to resource for the law on secure accommodation, as the Judge gives a very punchy summary of the key issues, in part because not all of the parties in the case had quite grasped the rather unusual nature of s25]
The judgement is a little sketchy to say the least, we have knowledge that the girl was brought to this country via traffickers, and that her age is unknown, the amount of money spent thus far by the local authority, would more likely be better spent finding out how old she is and trying to trace her family, in order to reunite them.
If that is not possible (although I cannot see why not) I find it extremely disturbing that this poor young person has endured so much, only to be further messed with mentally by isolating her from the few people she does know and trust, that is a common theme for the Local Authority and the courts, they cause more harm than good while emotionally abusing children in this way.
Something is missing from this story, mark my words, I do not like it one bit
Maybe an odd point to take issue with but:
“(7)The court does not have power to make an order under s.25 in respect of a young person over the age of 16, but the order may be made prior to a child becoming 16, even if it extends beyond the child’s 16th birthday ; (Re G (See Accommodation Order) 2001 1FLR 259”?
Surely Re G is authority only that a child who is accommodated under s20(5) CA89 cannot be made the subject of a secure order but a 16 or 17 year old accommodated otherwise, I.e. pursuant to s20(3) could?
Yes, I also noted that (and I very respectfully think that Hayden J is incorrect here and that you are right). It felt a bit esoteric for the main piece, so I didn’t raise it.
Also, although Hayden J did not make a Secure Accommodation Order, he does suggest in paragraph 26 that the statutory test is met (which causes problems given that the order is mandatory) but my reading of paragraph 20 is that the test is not met – he finds that there is no history of absconding (a) (i) but that the child would be likely to suffer significant harm if she were to abscond (a) (ii) – I don’t think that meets the test, and at first reading, I thought THAT was why he was able to refuse the application. Now, I’m not so sure.