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Re B-S for Secure Accommodation BIG BIG BIG


 

 

It could easily be said that a big over-arching Court of Appeal analysis of Secure Accommodation has been long overdue, but it is here now. And just like B-S did (or did, then didn’t, but did but didn’t, depending on which subsequent Govt press release/Court of Appeal authority you read and when), this changes everything.

I’m sorry, this is LONG. The new test on secure is in large font or  para 98 of the decision http://www.bailii.org/ew/cases/EWCA/Civ/2019/2025.html

 

If you represent LA’s who apply for secure orders, or represent parents whose children may be placed in secure, or guardians / children who are the subjects of such applications you NEED to READ this. The landscape changes completely.  There are brand new areas of proper challenge to the making of such orders, and they will be much more wide-ranging hearings than previously.

It is long, but read it.

To recap a bit for those who aren’t as invested as I am in the intricacies of Secure Accommodation, we’ve had three problems in this field and the law on this field.

 

  1. Is the making of a Secure Accommodation Order mandatory if the section 25 test is made out? The statute says so, but there are two different branches of authorities, one saying yes and one saying the other philosophy of the Act that the order must be better for the child than making no order still applies.
  2. To what extent is proportionality and necessity an issue? (Again, two different branches of authorities)
  3. Due to a massive shortage of spaces and beds, what are the circumstances in which it is okay to use inherent jurisdiction (magical sparkle powers TM) to make a non-approved secure unit look after a child and use the same sorts of powers as s25 offers?

And we can add now a fourth problem/ question that we didn’t know we had

 

4. Is secure binary? (i.e if the Court makes a secure accommodation order under s25, is it then up to the Unit to decide how to manage the child, or does the Court have a role in deciding what particular restrictions of liberty are authorised and which are not?)

 

The legal test for making a secure accommodation order is this:-

 

(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.

 

And the statute goes on to say :-

 

(3)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 in his case.

(4)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.

 

So the Act says :- if the LA apply for a Secure Accommodation Order, the Courts job is to consider whether the factual basis for saying that the s25(1) criteria are made out and IF SO to MAKE the order (there isn’t a judicial discretion element there. That obviously troubles people post Human Rights Act, because welfare, proportionality and necessity have become the fundamental underpinning mechanisms of all Family Court decision-making since the HRA and the authorities that have arisen from it. Everyone thought in the late 90s that s25(4) was going to be declared incompatible with the HRA but it just didn’t happen. And instead we just saw some cases saying ‘it is manadatory if the s25(1) criteria is made out’ and some saying ‘I can take into account the child’s welfare and whether this is a proportionate way of managing the child’s welfare’

(An argument about proportionality is that the s25(1) criteria are in and of themselves a proportionality test – you can’t lock a child up unless that test (which gives the reasons why they would need to be locked up) is met. The counter argument to that is that whilst that means the Court have to lock up every young person who meets the test IF they are asked to make a s25 order, the LA have children who meet the test but they decide not to lock up and manage the risk in other ways – and why is that decision resting solely with a Local Authority and not with a Judge? Why can’t a Judge decide that Child A properly belongs in the group of children who are at serious risk but can be managed without locking them up?)

Given that the decision ultimately is whether a young person is going to live in a home with locked doors and controlled access to their movements, it is very important to know which route we are taking – the strict statute, or the HRA-informed proportionality.

 

I’ll come onto the facts of the case and the decision later (assuming I keep up my enthusiasm), but I’m going to deal with these four questions first.

B (Secure Accommodation Order), Re (Rev 1) [2019] EWCA Civ 2025 (21 November 2019)

http://www.bailii.org/ew/cases/EWCA/Civ/2019/2025.html

 

 

 

 

The Court of Appeal frame four questions (wording them differently to my four)

2.The appeal raises four important and overlapping questions on the interpretation of s.25.

 

 

 

(1) What is the meaning of “secure accommodation” in s.25?

 

(2) What are the relevant criteria for making a secure accommodation order under s.25?

 

(3) What part does the evaluation of welfare play in the court’s decision?

 

(4) When considering an application for an order under s.25, is the court obliged, under Articles 5 and 8 of the ECHR, to carry out an evaluation of proportionality?

 

 

The Court of Appeal decisions follow:-

 

What is ‘secure accommodation’?

In my judgment, “secure accommodation” is accommodation designed for, or having as its primary purpose, the restriction of liberty. As Wall J acknowledged, however, premises which are not designed as secure accommodation may become secure accommodation because of the use to which they are put in the particular circumstances of the individual case.

 

 

60.Unlike Re D, the present appeal does require the court to interpret the section with reference to a “real factual situation”. As Lady Black recognised, however, training the spotlight on the accommodation does not provide a complete answer to the question. She acknowledged that, while some types of secure accommodation will be readily recognisable as such, others will not. In some cases, it will not be easy to say whether the accommodation is or is not “secure”.

 

(oh good)

 

Is the child’s welfare paramount? (short answer NO)

 

68.The decision in Re M clearly establishes that the paramountcy principle in s.1 of the Children Act does not apply to applications under s.25. It has been followed by all courts hearing applications under the section and is binding on this court. There is, however, less clarity as to the extent of the evaluation of welfare which the court is required to carry out. There is a small but perceptible difference between the view expressed by Butler Sloss LJ and that of Hoffmann LJ. Both agreed that the court must apply the same criteria as the local authority and that the relevant criteria include welfare. Butler-Sloss LJ considered that the distinction between a reviewing power and a general duty to consider welfare was “a matter of words” but that “the court has the specific duty to determine whether any relevant criteria are satisfied” and that, in performing that duty, welfare is “of great importance”. Hoffmann LJ, however, thought that function of the court under s 25 is “merely to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child”.

 

 

69.Some might consider this to be a distinction without a difference. It should be noted that the third judge in the constitution, Sir Tasker Watkins, agreed with both judgments. In my view, however, there is a difference of approach in the two judgments. It is therefore unsurprising that in subsequent cases, courts have sometimes struggled with the issue of how to deal with cases where they perceive that, whilst the conditions in s.25(1) are satisfied, the placement proposed by the local authority would be contrary to the child’s overall welfare.

 

[By the time you get to the bottom of this, you might well think that unless there’s a ‘protection of the public’ element to the case, the distinction between the child’s welfare ‘not being paramount’ and what is described below looking very much as though the child’s welfare is paramount is wafer-thin]

 

What role does welfare have in the decision?

72.In my judgment, the “displacement of the court’s welfare role” as required by the decision in Re M extends only to the displacement of the paramountcy principle. It does not require the court to abdicate responsibility for evaluating impact of the proposed placement on the child’s welfare. On the contrary, as Butler-Sloss LJ said, the child’s welfare is plainly of great importance in deciding whether or not an order should be made. The local authority and the court must each consider whether the proposed placement would safeguard and promote the child’s welfare. In some cases, the child’s welfare needs will be served by a period in secure accommodation, particularly if supported by a comprehensive therapeutic programme. In other cases, the child’s welfare will not be promoted by such a placement. However, just as s.22(6) allows the local authority to exercise its powers in a way that does not promote the child’s welfare if necessary to protect the public, there may be cases where the court concludes that the child’s welfare needs are outweighed by the need to protect the public from serious harm. Welfare is therefore not paramount but is plainly an important element in the court’s analysis. It is one of the relevant criteria.

 

 

73.This interpretation of s.25 is fortified by the Human Rights Act 1998, which came into force five years after Re M was decided in 1995

 

Proportionality – is it relevant ? (short answer, yes, the Court need to conduct an exercise before deciding whether or not to make a secure accommodation order)

 

 

 

 

88.In my judgment, an evaluation of proportionality must be carried out by the local authority before applying for an order under s.25 and by the court before granting such an order. Proportionality is one of the “relevant criteria” which must be satisfied before an order is made.

 

 

89.The ECHR, in particular Article 8, is part of the bedrock of the Children Act. As Baroness Hale observed in Re B [2013] UKSC 33, at paragraph 194:

 

 

 

“The Act itself makes no mention of proportionality, but it was framed with the developing jurisprudence under Article 8 of the European Convention on Human Rights very much in mind. Once the Human Rights Act 1998 came into force, not only the local authority, but also the courts as public authorities, came under a duty to act compatibly with the Convention rights.”

 

In exercising their duties and powers under s.25, local authorities and courts must comply with the ECHR and, in particular, Articles 5 and 8. Since the principle of proportionality is integral to Convention rights, it is incumbent on local authorities and courts not to apply for, or grant, orders under s.25 where, to adopt the phrase used by Lord Reed in the Bank Mellat case, the impact of the rights infringement is disproportionate to the likely benefit.

 

The 2014 statutory guidance refutes the well-established principle that secure accommodation is a last resort

 

 

“40. Restricting liberty of a child is a serious step that can only be taken if it is the most appropriate way of meeting the child’s assessed needs. A decision to place a child in secure accommodation should never be made because no other placement is available, because of inadequacies of staffing in a child’s current placement, or because the child is simply being a nuisance. Secure accommodation should never be used as a form of punishment.

 

  1. This does not mean, though, that restriction of liberty should only be considered as a ‘last resort’. Restricting the liberty of a child could offer a positive option. A decision to apply for an order under s25 of the Act should be made on the basis that this represents the best option to meet the particular needs of the child. The placement of a child in a secure children’s home should, wherever practicable, arise as part of the local authority’s overall plan for the child’s welfare.

 

The Court of Appeal say that the statutory guidance is WRONG

 

91.In these circumstances, it seems to me that the passage in the latest edition Guidance (quoted at paragraph 23 above), which refutes the proposition that restriction of liberty should only be considered as a last resort, is inconsistent with principle. To deprive a child of liberty in circumstances which were not a last resort would surely be disproportionate.

 

We have for a long time (prior to the 2014 guidance) had a weird divergence where LA’s were told that they could not ASK for secure accommodation unless it was a last resort, but the Courts were told they had to make the order if the criteria were met and were not required to find that it was a last resort. The Courts now DO have to make such a finding (implicit in para 91 above that in finding that secure is a proportionate order to make, such decision would be flawed in circumstances where secure was not the last resort)

 

 

 

Evaluation of welfare – Court must carry out an evaluation of how secure meets the child’s welfare needs before making an order – the evaluation CAN include the need to protect the public

 

The assessment of proportionality which the court is obliged to carry out as a public authority will inevitably involve an evaluation of welfare. In my judgment, this analysis applies equally to applications under s.25. Accordingly, the interpretation of s.25 proposed by Hoffman LJ in Re M – that the function of the court is to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child – and the approach suggested by Charles J in S v Knowlsey – that the court should assess welfare issues under s.25 on the basis that the local authority is the decision maker – are, in my view, incompatible with the court’s duty under s.6 of the Human Rights Act. On an application under s.25, the court must carry out its own evaluation of whether the order would safeguard and promote the child’s welfare. The intensity of that evaluation will depend on the facts of each case. In most cases, it is unlikely to involve a wide-ranging inquiry. The question for the court is whether, in all the circumstances, including the need to protect the public, the proposed order would safeguard and promote the child’s welfare

 

 !!!!!!HERE COMES THE NEW S25 TEST !!!!!!

Relevant criteria revisited

98.Having analysed the roles played by welfare and proportionality in the decision-making process under s.25, I conclude that, in determining whether the “relevant criteria” under s.25(3) and (4) are satisfied, a court must ask the following questions.

 

 

 

(1) Is the child being “looked after” by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7?

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

 

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

 

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

!!!! TEST ENDS!!!!

(In the rare circumstances of the child being aged under 13, Regulation 4 of the 1991 Regulations require that the placement must also be approved by the Secretary of State.)

99.If the relevant criteria are satisfied, s.25(4) obliges the court to make an order under the section authorising the child to be kept in secure accommodation and specifying the maximum period for which he or she may be so kept. In its submissions to this court, the ALC was rightly anxious to preserve the use of what it called “imaginative arrangements” – the arrangements characterised by Hayden J in Re SS as “the creative alternative packages of support” – and was concerned they would be squeezed out by too wide a definition of “secure accommodation”. The recasting of the interpretation of the relevant criteria under s.25 suggested in this judgment preserves the flexible approach advocated by the ALC. If the court determining an application under s.25 is obliged to conduct an evaluation of welfare and an assessment of proportionality, and in doing so applies the principle that a secure accommodation order should always be a last resort, the court will be under an obligation to consider alternative arrangements

 

 

What is the Relevant Date?

This doesn’t come up very often (or didn’t). The Court of Appeal say  (para 100) that the relevant date for establishing whether the s25 criteria (bundling up now proportionality and welfare evaluation including alternative arrangements) is met is the date of the application.

That inevitably means that where the child is in Secure (and has been for a period of months rather than 72 hours) as a result of a previous order, the evaluation of whether the s25 criteria is met is on the date of the application – the history will come into play, but the current position is huge.

 

Inherent jurisdiction – yes, with a pretty huge but

 

101.S.25 does not cover all circumstances in which it may be necessary to deprive a child of their liberty. As Lady Black observed in Re D, at paragraph 100:

 

 

 

“The children who require help will present with all sorts of different problems, and there will be those whose care needs cannot be met unless their liberty is restricted in some way. But by no means all of these children will fall within the criteria set out in section 25(1)(a) and (b), which are the gateway to the authorisation of secure accommodation. It seems unlikely that the legislation was intended to operate in such a way as to prevent a local authority from providing such a child with the care that he or she needs, but an unduly wide interpretation of “secure accommodation” would potentially have this effect. It is possible to imagine a child who has no history, so far, of absconding, and who is not likely actually to injure himself or anyone else, so does not satisfy section 25(1)(a) or (b), but who, for other good reasons to do with his own welfare, needs to be kept in confined circumstances.”

 

It is well established that a judge exercising the inherent jurisdiction of the court with respect to children has power to direct that the child be detained in circumstances that amounts to a deprivation of liberty. Where the local authority cannot apply under s.25 because one or more of the relevant criteria are not satisfied, it may be able to apply for leave to apply for an order depriving the child of liberty under the inherent jurisdiction if there is reasonable cause to believe that the child is likely to suffer significant harm if the order is not granted: s.100(4) Children Act. As I have already noted, the use of the inherent jurisdiction for such a purpose has recently been approved by this court in Re T (A Child) (ALC Intervening) [2018] EWCA Civ 2136. In Re A-F (Children) (Restrictions on Liberty) [2018] EWHC 138 (Fam), Sir James Munby P, in a series of test cases, set out the principles to be applied. It is unnecessary for the purposes of this appeal to revisit those principles in this judgment. Last week, Sir Andrew McFarlane, President of the Family Division, published guidance, focusing in particular on the placement under the inherent jurisdiction of children in unregistered children’s homes in England and unregistered care home services in Wales.

102.Where, however, the local authority applies under s.25 and all the relevant criteria for keeping a child in “secure accommodation” under the section are satisfied, the court is required, by s.25(4), to make an order under that section authorising the child to be kept in such accommodation. To exercise the inherent jurisdiction in such circumstances would cut across the statutory scheme

 

(To make this clear – a Court cannot on an application under s25 where there is no bed, use inherent jurisdiction to place the child in a unit which is not approved as a Secure Unit and authorise restriction of liberty. They can do this if there isn’t a s25 application OR if they find the s25 criteria are not met but somehow it is still proportionate to restrict the child’s liberty – I can’t at the moment conceive of such a scenario but it is out there as a possibility)

 

 

Is secure binary? I don’t know, but… maybe not?

 

It is really a question of whether the proportionality and welfare evaluation is limited to ‘there being restrictions’ or looking at the individual restrictions. I honestly don’t know. This is the paragraph that comes closest to it

 

120….when a local authority takes a decision about a child under section 25 there must be some proper measure of proportionality as between the purpose or objective behind the proposed deprivation and both (a) the very fact of deprivation (ie the decision to place the child in secure conditions in the first place) and (b) if such a decision is properly taken (ie is proportionate) the nature and degree/extent of the deprivation (ie the extent of the actual restrictions imposed upon the child in secure conditions).

 

The Court of Appeal also remind us that article 8 of the HRA applies to making a Secure Accommodation Order

117…both Articles 5 and 8 are capable of applying to the deprivation of liberty of a person, including of course a child. Indeed, whenever a person is deprived of liberty (thereby engaging Article 5) that executive act will almost inevitably engage that person’s private life rights under Article 8. When an authority deprives someone of their liberty private life is by its nature curtailed. Lady Hale in Re D (A Child) [2019] UKSC 42 (Re D) at paragraph [3] made a similar point about the combined effect of Articles 5 and 8 as they applied to the rights of a child and those of parents.

 

 

I said that I’d quickly run through the facts of the appeal – basically a LA made a s25 application, there was no bed so the child was placed at a non-Secure unit (named “N”) and restrictions to the child’s liberty were authorised under inherent jurisdiction. The LA when a secure unit was found, applied for a s25 order to move the child from “N” to that unit. The Judge found that the test wasn’t met, because it was limb s25(1) (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.    And the Judge considered that the child could be kept in N, which wasn’t secure accommodation, and so didn’t meet the test. And then went on to decide that it wasn’t in the child’s interests to be moved.

 

The Court of Appeal say that the Judge was wrong in deciding that N wasn’t secure accommodation (for reasons explained many pages ago) and that thus the criteria were made out. The Judge would have been entitled to decide that moving the child from N to another unit was not in the child’s interests but the Judge had not carried out the proportionality and welfare evaluation (that the Court of Appeal only just decided was necessary, so that’s harsh) to make that decision.

County Lines and Magical Sparkle Powers

 

 

County Lines is the name that the police have given to the involvement of young adolescents in Organised Crime Gangs (OCG), usually transporting drugs from an urban centre where supply is readily available to rural areas where there is less supply and hence the price can be more lucrative for the OCG. Often there are competing OCGs in these areas, and hence there’s a degree of physical risk to the young adolescents as well as the criminal behaviour itself as the gangs compete for territory and access to those markets.

Magical sparkle powers is the pejorative nickname I have given to the inherent jurisdiction of the High Court, largely arising from the frequently cited quotation that the inherent jurisdiction of the High Court is theoretically limitless.

 

 

Fetch the bolt cutters Ryan

 

A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) (04 June 2019)

http://www.bailii.org/ew/cases/EWHC/Fam/2019/1384.html

 

6.The background can be shortly stated and is derived in the main from intelligence reports that have been communicated by the police to the local authority. KS lives with his mother in the south of the city. Since 2017 KS has been considered to be at risk of criminal exploitation. The police assessment is that KS is an active member of a named OCG. That OCG is believed to be involved in violent feuds grounded in attempts to take control of drug trafficking activity in identified areas of the city, further exaggerated by racial tensions. Police intelligence indicates that KS is presently in dispute with other members of the criminal community in the south of the city. The police consider that those ‘nominals’ he is in dispute with have the ability to use firearms and display a willingness to conduct retaliatory attacks and to seek violent acts of retribution.

 

 

7.In August 2017, KS was found in the company of an OCG drug dealer and was deemed to be a victim of criminal exploitation. Police exercised their powers of protection pursuant to s 46 of the Children Act 1989. In September 2017 KS was said to have witnessed a gang related stabbing in the south of the city that took place that month when a young male was stabbed in the neck. Also in September 2017 KS was found to be carrying a baseball bat and a brick and was arrested for a racially aggravated assault having allegedly threatened a female with a baseball bat and thrown a brick at her. In October 2017, KS was made the subject of a child protection plan by the City Council.

 

 

8.In May 2018 KS was found in possession of a quantity of heroin and offensive weapons were found in the property in which he was arrested for conspiracy to supply Class A drugs. No charges were brought on that occasion. In July 2018 KS was arrested at a festival in possession of a quantity of cocaine on suspicion of selling drugs. Later in July police received intelligence that KS had been involved in a street altercation in which he wounded a person with a knife. In October 2018 KS was convicted of possessing an offensive weapon and assault occasioning actual bodily harm arising out of the incident in September 2017 and was made the subject of a Youth Rehabilitation Order for 18 months.

 

 

9.In late 2018 KS was attacked in the street by males wielding a machete and a knife. He was stabbed five times. He stated he did not know his attackers and would not make a complaint. A month later a male from a rival OCG suffered severe knife injuries following a window being broken at KS’s home address whilst his younger siblings were present. No complaints were made by any of the parties involved.

 

 

10.In February 2019 police intelligence suggested that KS had been involved in the discharge of a firearm. In March 2019 KS was arrested following a knife attack that Police intelligence indicated was a targeted attack by members of the named OCG. A search of the family home revealed two large knives, one under KS’s bed and one under the sofa. Following a strategy meeting, it was agreed that KS could return home on condition that the mother work openly with the local authority. In April 2019 KS was served with a ‘Gun Crime Nominal Notice’. This is a ‘disruption notice’ designed to alert a person that their activities have generated Police attention and that advice and support is available should they choose. The Police identified KS as a “Gold” gun crime nominal and as being one of “top six gun crime nominals in the police force area”.

 

 

11.Thereafter, KS was identified by Police as a suspect in the shooting of an adult male who had been shot in the leg in broad daylight in the presence of members of the public. KS was arrested on that date on suspicion of attempted murder and bailed. A search of his property recovered an axe. Within this context, the police considered that KS’s life was under threat from reprisals following the shooting. However, KS rejected advice that he leave the area and reside in alternate accommodation, and refused to accept that he was at risk. As the result of a Strategy Meeting, the mother was advised to leave the family home with KS’s two younger siblings and to stay outside the area. She has done so. A secure panel meeting concluded that the risks to KS and to other’s from KS were so high as to warrant an application for an order authorising his secure accommodation.

 

 

12.Within the foregoing context, in her statement dated 15 May 2019, the social worker summarises the risks to KS arising out of the circumstances outlined above as follows:

 

 

 

“The Local Authority feel that it is necessary for a continuation of deprivation of liberty in respect of KS. KS remains at risk of significant harm or harming someone else if he is to remain in the care of [the mother] and remain in [the south of the city] and immediate surrounding areas. It is known from police information that KS is in possession of a firearm and there is information to suggest that he has used this on more than one occasion. The risks to KS’s personal safety have been escalating since the beginning of the year and the police have indicated that there is a significant risk to his own safety and life due to potential reprisals as a consequence of the shooting incident…”

 

(KS disputed that any of those things were true)

 

In this case, the young person KS was 17.  (Too old for a Care Order to be made). His mother objected to him being accommodated in secure accommodation, so he could not be accommodated under section 20 of the Children Act, therefore there was no mechanism under the Children Act 1989 for him to be accommodated at all. And therefore, there was no legal basis for the LA to seek a section 25 Secure Accommodation Order

The Local Authority therefore asked the Court to authorise under the inherent jurisdiction of the High Court for authority to deprive KS of his liberty.

 

(There is talk in the judgment of it being a DOLS application – deprivation of liberty application, but it clearly can’t be, because there’s no medical evidence that KS met the test in the Mental Capacity Act 2005 for not having capacity to make decisions for himself. Many would say that he was making very BAD decisions, but people are allowed to make BAD decisions, as long as they have capacity)

 

 

Cutting to the chase of the decision

 

 

1.Does the High Court have power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17 year old child who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. I am satisfied that the answer is ‘no’.

 

The judgment sets it out in more detail, of course, but that’s the nub of it.  So this is a case which adds a limit to those theoretically limitless powers, and the cases that do that are always significant.

 

DISCUSSION

45.Having considered carefully the evidence and submissions in this case, and accepting that the evidence presently before the court justifies the concerns of the professionals in this case who are endeavouring to keep KS safe, I am satisfied that this court is not permitted to use its inherent jurisdiction to authorise KS’s the placement in secure accommodation in the manner requested by the local authority. My reasons for so deciding are as follows.

 

 

46.There is no care order in force in respect of KS and an application for such an order cannot be made by virtue of his age (Children Act 1989 s 31(7)). KS has not been accommodated by the local authority for the purposes of the Children Act 1989 (whilst the order of HHJ Sharpe did result, briefly, in KS’s placement at the non-secure unit, in light of the conclusions set out in this judgment, that order was not capable of causing KS to be “accommodated” by the local authority for the purposes of the Children Act 1989). KS’s mother retains exclusive parental responsibility for him. She did not and does not consent to his accommodation and, accordingly, KS cannot be accommodated by the local authority for the purposes of the 1989 Act (Children Act 1989 s 20(7)). In the circumstances, KS is a child who is neither “in the care of” the local authority or “provided with accommodation” by the local authority. I am satisfied that this position has two key consequences.

 

 

47.First, KS is not a “looked after” child for the purposes of s 25 of the Children Act 1989 and does not therefore fall within the terms of that section. In the circumstances, this is not a case where a declaration under the inherent jurisdiction is sought by the local authority in order to render lawful a non-secure placement for a looked after child that amounts to a deprivation of liberty due to a lack of suitable secure beds preventing an application under s 25 of the Children Act 1989. Rather, in this case, the local authority seeks an order under the inherent jurisdiction because s 25 of the Children Act 1989 cannot apply to KS.

 

 

48.Second, and within this context, in circumstances where KS is not and (in circumstances where his mother objects to his accommodation and where KS cannot be made the subject of a care order by reason of his age) cannot be a looked after child, the order the local authority seeks under the inherent jurisdiction is one which would not only authorise the accommodation of KS in a secure placement, but would, a priori, have the effect of authorising his removal from his mother’s care without her consent for this purpose in circumstances where his mother, who retains exclusive parental responsibility for him, objects to this course of action. In the circumstances, I am satisfied that the effect of the order sought by the local authority under the inherent jurisdiction would be to require KS to be removed from his mother’s care and be accommodated by the local authority. This course of action is prohibited by s 100(2)(b) of the Children Act 1989.

 

 

49.The intention and effect of Section 100(2)(b) is to prevent the court in wardship or under the residual inherent jurisdiction making any order which has the effect of requiring a child to be accommodated by a local authority. That end can only be achieved by satisfying the requirements of the statutory regime for accommodating children provided by (amongst other provisions) s 20 of the Children Act 1989. For the reasons I have given that outcome cannot be achieved in this case under the statutory regime. In such circumstances, it is clearly established that the High Court cannot exercise its inherent jurisdiction to grant authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme (Re E (A Child) [2012] EWCA Civ 1773 at [16] and Re M (Jurisdiction: Wardship) [2016] EWCA Civ 937 at [39]).

 

 

50.I am, of course, acutely conscious of the nature and extent of the risks to KS identified in the evidence before the court and of the duty of this court to act in a manner that is compatible with KS’s rights under Art 2, which duty includes a positive obligation on the court to protect the right to life. However, the authorities that articulate this positive obligation make clear that it is to be discharged by the relevant public authority through taking “measures within the scope of its power” (see Osman v United Kingdom). For the reasons I have given, the orders sought by the local authority lie outside the scope of the court’s power under the inherent jurisdiction.

 

 

51.Given my conclusions with respect to the determinative effect in this case of s 100(2)(b) of the 1989 Act, I do not consider it necessary to address the arguments advanced by Mr Bagchi regarding the existence of a statutory lacuna in respect of children in KS’s position and Mr Spencer’s competing submission that the use of the inherent jurisdiction to place KS in secure accommodation would be to cut across a statutory regime that excludes children in KS’s situation from the statutory scheme.

 

 

 

CONCLUSION

52.As Mr Spencer points out in his careful and comprehensive Skeleton Argument, any reader of the local authority documentation in this case would be struck by the immense seriousness of this case, involving as it does references to attempted murder, criminal gangs, firearms and ‘County lines’ drug dealing. Whilst this court has made no findings in respect of these matters, on its face it is a situation that embodies the seemingly increasing tragedy of vulnerable young people for whom involvement in Organised Criminal Groups is perceived as a means of protection, of belonging, of mattering to an apparently indifferent world and who, in consequence, grasp for these things on a path that ultimately offers nothing but futility, pain and sometimes even death. As I noted at the conclusion of the hearing, in these circumstances the local authority cannot be criticised for seeking to explore the outer boundaries of the court’s jurisdiction in an effort to protect KS from the risks it has identified.

 

 

53.Within this context, it may also be considered by some to be surprising that the High Court cannot simply invoke its inherent jurisdiction in the manner requested by the local authority to address KS’s situation. However, as Hayden J observed in London Borough of Redbridge v SA [2015] 3 WLR 1617 at [36]:

 

“The High Court’s inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

 

 

Therefore, if the adolescent is over 17, not subject to a Care Order, and the parent objects to section 20, there isn’t a family law solution to the problem. It would have to be a criminal remand to a secure unit. That’s quite an unusual set of circumstances, because with an adolescent under 17, the LA could have sought an Interim Care Order and then secured.

Magical sparkle powers (repeat to fade)

 

The quirky case of Mostyn J and the using magical sparkle powers to place a child in quasi secure accommodation under inherent jurisidiction (child met test for secure but no secure beds) but wait, the child is consenting to their detention, has come up for appeal

 

Original blog here (and yes, I super simplified the issues in that quick summary)

https://suesspiciousminds.com/2018/04/19/magical-sparkle-powers-secure-accommodation-and-consent/

 

The appeal is here

 

Re T (A Child) 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2136.html

 

In the Mostyn J case, the Judge decided that whilst a valid and enduring consent could block the Court’s use of the inherent jurisdiction (and perhaps s25 Secure Accommodation), what he was presented with was not in fact a genuine and enduring consent. The young person had capacity to agree to their detention, but the Judge thought that is was not a consent given with the intent of honouring it (which may be supported by the evidence of said young person escaping from the secure unit shortly afterwards)

 

The Court of Appeal decided that Mostyn J was wrong, though not for the reason the appeal was brought. The appeal was saying ‘don’t add that ‘enduring’ component to consent’  and the Court of Appeal said that in a secure accommodation or quasi-secure accommodation setting, lack of consent of young person wasn’t required and thus their giving consent did not prevent a Judge making the order or using the inherent jurisdiction.

In effect, Mostyn J had been persuaded that consent was more significant than it in fact was, and it wasn’t necessary to add the gloss that he applied to reach the right outcome.

 

The technical bits follow in bold, skip if you like – there’s better stuff after that of a wider interest

 

Discussion: Is a lack of valid consent a pre-requisite to the exercise of the inherent jurisdiction authorising restriction of the liberty of a young person?

  • Although the point is now conceded for the purposes of this appeal, it is helpful to record brief reasons why the Appellant’s concession on the question of whether a lack of valid consent is a pre-requisite to the exercise of the inherent jurisdiction to restrict liberty was correctly made.
  • On the basis of the ECtHR and domestic case law, and on the basis of the statutory scheme for secure accommodation in CA 1989, s 25 and SSW(W)A 2014, s 119, it is clear that, whilst a lack of valid consent may be an element in determining whether a person is deprived of their liberty in any given circumstances for the purposes of Art 5, lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person’s liberty. That conclusion is established on the following four bases:

 

a) The consent, or otherwise, of the young person is not a relevant factor in the statutory scheme;

b) There is no domestic authority to the effect that it is necessary to find an absence of valid consent before the court may authorise a local authority to restrict the liberty of a young person;

c) To hold otherwise would be to confuse the distinct temporal perspectives of Art 5 and an application for authorisation;

d) It would also mistake the purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.

(a) The statutory scheme does not require lack of consent

  • The consent, or lack of it, of the young person who is the subject of a secure accommodation application is not a factor to which reference is made in any part of the statutory scheme under CA 1989, s 25 or SWW(W)A 2014, s 119. The statutory scheme has been held to be compatible with, and not in breach of, ECHR Art 5.
  • The fact that ‘consent’ is not a factor in the statutory scheme, in contrast to the requirements of Art 5 when determining whether there has been a deprivation of liberty as established by the second element of Storck, points up the essential difference between the two processes. Section 25 and s 119 are concerned with the authorisation of the placement of a child in secure accommodation: “… a child … may not be placed … in accommodation … for the purpose of restricting liberty (“secure accommodation”) unless …”. By s 25(2) and s 119(2) regulations may ’empower the court from time to time to authorise a child to be kept in secure accommodation’ for such period as the regulations may specify. Where the statutory criteria in s 25(1) or s 119(1) are satisfied the court ‘shall’ or ‘must’ ‘make an order authorising the child to be kept in secure accommodation’ (s 25(3) and s 119(3)) – see Re M (Secure Accommodation).
  • The effect of a court order under s 25 or s 119 is, therefore, to ‘authorise’ the applicant local authority to keep the subject child in secure accommodation. The effect of authorisation under s 25 is most clearly demonstrated by s 25(5A) which spells out the effect of a secure accommodation order for a placement in Scotland:

 

(5A) Where a local authority in England or Wales are authorised under this section to keep a child in secure accommodation in Scotland, the person in charge of the accommodation may restrict the child’s liberty to the extent that the person considers appropriate, having regard to the terms of any order made by a court under this section. [emphasis added]

  • In contrast to a sentence of imprisonment passed by a criminal court, a local authority is not required to restrict the liberty of a young person who is the subject to a secure accommodation order; s 25 and s 119 do no more than establish a system for the authorisation of such placements. The statutory scheme is therefore focused upon whether or not the factual circumstances are such as to be sufficiently serious to justify restricting liberty.
  • The welfare of the child, whilst relevant, is not the paramount consideration for a court when determining an application for a s 25 or s 119 order (Re M (Secure Accommodation Order) [1995] 1 FLR 418). The judgment of Butler-Sloss LJ (as she then was) in Re M justifies reading in full, but the reasons supporting her conclusion, with which Hoffmann LJ and Sir Tasker Watkins agreed, included the following:

 

a) Section 25 sits within Part 3 of CA 1989 which is structured to cast upon the local authority duties and responsibilities for children in its area, including those who are being looked after.

b) The general duty of a local authority under Part 3, which is to safeguard and promote the child’s welfare, is not the same as the duty of a court under CA 1989, s 1 to afford paramount consideration to the child’s welfare.

(b) No domestic authority requires there to be a lack of valid consent

  • Save possibly for the decision of Keehan J in Local Authority v D to which I will now turn, and, of course, Mostyn J’s decision in the present case, this court has not been taken to any authority for the proposition that a lack of valid consent is a necessary jurisdictional pre-requisite before the High Court may exercise its inherent jurisdiction to authorise restriction of liberty. The role of the High Court, in holding as closely as possible to the scheme of s 25 and s 119 in these cases, is that of determining whether a local authority is to be authorised to restrict liberty.
  • This court was told that, in the present case, since the making of the order in March, the regime at the second placement has been relaxed so that the appellant now spends over three hours each day of ‘free time’ with the expectation that the amount of free time will increase by 30 minutes each week. The relaxation of the regime was a matter within the discretion of the local authority under the structure of the order made by Mostyn J who, rather than requiring restraint, had simply sanctioned its use.
  • In like manner to the effect of a secure accommodation order, an order under the inherent jurisdiction in these cases does not itself deprive a young person of his or her liberty, it merely authorises the local authority (or those acting on their behalf) to do so. This distinction was, unfortunately, not made sufficiently clear by Keehan J in Local Authority v D when he summarised the issue before the court (at paragraph 9) in terms of determining whether or not C was deprived of his liberty. With respect, the issue in such cases is, rather, whether the court should give a local authority the authority to deprive a young person of their liberty should they consider that that is necessary. In the event, Keehan J’s determination turned on the different basis that, because of the agreement of the young person it was not necessary for the court to give such authority to the local authority at that time.

 

(c) The different perspectives of Article 5 and an application for authorisation

  • This further consideration also points to the same overall conclusion. A determination that a person has or has not been deprived of their liberty in breach of Art 5 will often be a retrospective evaluation of the individual’s current and past circumstances. In that regard the question of whether or not they have or had consented to the restrictive regime is likely to be an important element; one cannot normally be said to be deprived of liberty when one has freely agreed to the relevant regime. This is in contrast to the court’s role under s 25 and s 119 or under the inherent jurisdiction, where the court’s perspective is normally prospective, determining whether circumstances exist that justify a local authority placing a child or young person in accommodation for the purpose of restricting their liberty.

 

(d) The purpose of an order under the inherent jurisdiction authorising the placement of a child in the equivalent of secure accommodation.

  • The need for an order authorising a local authority to place a child in the equivalent of secure accommodation derives from two factors. The first, and fundamental aspect, is to ensure that the absence of available secure accommodation does not lead to the structure imposed by s 25 being avoided. The terms of s 25 should be treated as applying to the same effect when a local authority is placing a child or proposing to place a child in the equivalent of secure accommodation. When viewed from this perspective, it is clear that a local authority cannot invest itself with the requisite authority and that a child’s agreement or consent cannot authorise such a placement. Neither the local authority nor a child/young person can authorise what Parliament has decided only the court can authorise.
  • The second factor derives from Article 5. The court’s authorisation means that if the authorisation is used for the purposes of depriving a child of their liberty the legal requirements of Article 5 will also have been fulfilled: see Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526. The court will necessarily have determined that the child’s welfare justifies, or even requires, him/her being deprived of their liberty for the purposes of maintaining the placement in the secure accommodation.
  • Drawing these matters together, once it is seen that the court’s power under s 25 / s 119 is not dependent upon any question of consent, the difficulties that arose in this case, as it was presented to the judge and, initially, to this court, disappear. The fact that any consent may or may not be ‘valid’ or ‘enduring’ on the day the order is sought, or at any subsequent point, or that a ‘valid’ consent is later withdrawn, is irrelevant to the scope of the court’s powers, whether they are exercised under statute or under the inherent jurisdiction of the High Court. The existence or absence of consent may be relevant to whether the circumstances will or will not amount to a deprivation of liberty under Art 5. But that assessment is independent of the decision that the court must make when faced with an application for an order authorising placement in secure accommodation, registered or otherwise.
  • This approach, where the question of whether or not an Art 5 deprivation of liberty occurs depends upon the facts on the ground at a particular time and is not necessarily required by, or created by, the court order but by the act of those caring for the child under the court’s authorisation, accords with the ECtHR jurisprudence summarised at paragraph 23 and onwards above.

 

Further, the need for there to be an absence of valid consent before the Storck criteria are established, does not mean that the presence of an apparently valid consent prevents the circumstances from amounting to a deprivation of liberty (see De Wilde, Ooms and Versyp, Storck para 75 and Buzadji). In terms of domestic authority, paragraphs 23 to 31 of MM and PJ could not be more clear – “where conditions amounting to a deprivation of liberty are compulsorily imposed by law, the agreement of an individual cannot prevent that compulsory confinement from constituting a deprivation of liberty”. In like manner, it is to be recalled that the court in De Wilde stated:

“Finally and above all, the right to liberty is too important in a “democratic society” within the meaning of the Convention for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention. Detention might violate Article 5 even although the person concerned might have agreed to it” [emphasis added].

Conclusion

  • It inevitably follows from the above analysis, and from the Appellant’s concession, that Mostyn J’s initial misgivings were well-placed but that he was unfortunately drawn into a legally erroneous position by accepting that it was necessary for the court to find a lack of valid consent before it could grant the local authority’s application. In the circumstances any question of the judge being correct in adding the gloss of ‘enduring’ to this non-existent jurisdictional requirement falls away.
  • I should make clear that this case does not concern the placement of children in other than the equivalent of secure accommodation. Different considerations will apply when an application is directed towards, and only directed towards, a deprivation of liberty. In that situation, subject to De Wilde, the question of whether or not the subject of an application to authorise the deprivation of liberty of a young person under the inherent jurisdiction is in agreement with the proposed regime may form part of an evaluation of whether such authorisation is necessary. Local Authority v D is an example of a case where the judge concluded that the young person’s stance rendered a court order unnecessary.
  • Conversely, as referred to above, once the court has authorised placement in secure accommodation or its equivalent, it may properly be considered that the matter can be left to those who are authorised to operate the care regime on a day to day basis and, as in the present case, they may work with the young person in a flexible manner using their powers of restriction or deprivation when necessary, but relaxing them when it is safe and appropriate to do so. Such issues are fact-specific to each case and are not matters of jurisdiction.
  • The Appellant’s appeal, as it had become by the close of argument, is now no more than a challenge to the judge’s discretion and could only succeed if this court were to be satisfied that the judge was wrong to grant authorisation to the local authority notwithstanding the apparent consent of the young person. There is no basis for holding that Mostyn J was ‘wrong’ to authorise restriction of liberty in this case. Indeed, as the judge himself observed, the breakdown of the placement so soon after the January order had been made vindicated his determination on that occasion; it also justified the making of a further order in respect of the new placement.

 

 

The Court of Appeal also made broader comments about the chronic and acute lack of beds for children who present with these difficulties, and the inherent unsuitability of using the inherent jurisdiction as a sticking plaster for the lack of bed space.

 

  1. This appeal relates to the exercise of the inherent jurisdiction by the High Court, Family Division when called upon to make orders which, but for a lack of capacity in the statutory system, would be made as secure accommodation orders under Children Act, 1989, s 25 (CA 1989).
  2. Official figures published by the Department for Education[1] show that, as at 31 March 2018, there were some 255 places in secure children’s homes in England and Wales. These places are taken up either by young people sent there through the criminal justice system or under CA 1989, s 25 secure accommodation orders. As will be explained more fully below, a child who is being looked after by a local authority in England or Wales may only be placed in secure accommodation in a children’s home if that home has been approved for such use either by the Secretary of State in England or the Welsh Government in Wales. This court understands that, in recent years, there has been a growing disparity between the number of approved secure children’s homes and the greater number of young people who require secure accommodation. As the statutory scheme permits of no exceptions in this regard, where an appropriate secure placement is on offer in a unit which is either not a children’s home, or is a children’s home that has not been approved for secure accommodation, the relevant local authority has sought approval by an application under the inherent jurisdiction asking for the court’s permission to restrict the liberty of the young person concerned under the terms of the regime of the particular unit on offer.
  3. Despite the best efforts of CAFCASS Cymru (this being a case concerning a Welsh young person), it has not been possible to obtain firm data as to the apparent disparity between the demand for secure accommodation places and the limited number available, nor of the number of applications under the inherent jurisdiction in England and Wales to restrict the liberty of a young person outside the statutory scheme. The data published by the Department for Education referred to in paragraph 2 simply measures the occupancy rate within the limited number of approved secure places without attempting to record the level of demand.
  4. This court has been told by counsel, on a broad anecdotal basis, that each local authority may, on average, make an application for a restricted liberty declaration under the inherent jurisdiction in one case each year. If that is so then, across England and Wales, the total number of such applications would be in the region of 150 per year. The understanding, again anecdotal, of judges hearing these cases is that that figure is probably a very substantial under-estimate; for example, in one week recently a medium-size court outside London heard five such applications. Again, by way of example, Mr Justice Holman described the situation in one week in the High Court in 2017 with a tone of wholly appropriate concern in A Local Authority v AT and FE [2017] EWHC 2458 (Fam):
    1. “5. It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction.  This week I have been sitting here at the Royal Courts of Justice as the applications judge.  This case is about the sixth case this week in which I have been asked to exercise the inherent jurisdiction of the High Court to authorise the deprivation of liberty of a child in similar circumstances.  There are two yet further similar cases listed before me today.

6. Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week.  Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children.  This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

  1. It is plainly a matter for concern that so many applications are being made to place children in secure accommodation outside the statutory scheme laid down by Parliament. The concern is not so much because of the pressure that this places on the court system, or the fact that local authorities have to engage in a more costly court process; the concern is that young people are being placed in units which, by definition, have not been approved as secure placements by the Secretary of State when that approval has been stipulated as a pre-condition by Parliament

 

The need for precision about the sort of restrictions that a children’s home can place on children and the need for training, inspection and monitoring of homes that are authorised to do so sprang out of the Pindown scandal, and the ingredients are in place for us to slide back into those sorts of dreadful abuses that began with good intentions but got so far removed from how the State ought to be dealing with its most vulnerable children. I hugely applaud the Court of Appeal here – the lack of secure beds is an accident waiting to happen.

 

The wider issues and the need for scrutiny

  • Before concluding this judgment, I return to the concern (referred to in paragraph 5) that so many young people are now being placed in secure accommodation outside the statutory scheme laid down by Parliament in units which, by definition, have not been approved by the Secretary of State as secure children’s homes. Whilst the High Court has a duty to consider such cases and must come to a decision taking account of the welfare needs of the individual young person, in the wider context the situation is fundamentally unsatisfactory. In contrast to the Secretary of State, the court is not able to conduct an inspection of the accommodation and must simply rely upon what is said about any particular unit in the evidence presented to it. In like manner, where a local authority, as is typically the case, is looking to place a young person in a bespoke unit a great distance away from their home area, the local social workers must make decisions at arm’s length and, it must be assumed, often without first-hand detailed knowledge of the particular unit.
  • The wide-ranging and powerful submissions of the ALC raise issues which are beyond the compass of this appeal but nevertheless deserve consideration in other places. The ALC identifies the following four key questions arising from the fact that a parallel system now exists under the inherent jurisdiction with respect to the secure accommodation of young people who would otherwise fall within the statutory code:

 

i) What is the impact, if any, on children of there being in use two parallel processes?

ii) Is there a disparity in the adherence to due process obligations or in the safeguarding a child’s access and participation in court decisions between these two processes?

iii) Is there a disparity in the practical protection afforded to children through the two processes which may result in arbitrary unfairness?

iv) What are the effects on the Convention Rights of children and the protection of their Article 5 and 6 rights of having two processes and in particular when does the ECHR case of Storck apply?

  • In the circumstances, a direction will be made that a copy of the judgments in this case is sent to each of the following: the Secretary of State for Education, the Secretary of State for Justice, the Chair of the Education Select Committee, the Chair of the Justice Select Committee, the Welsh Government and the Commissioner for Children.

 

 

Having ended the blog proper, two bits of shameless self-promotion (I say shameless, but I’m scarlet and writhing with shame as I type, honestly)

 

  1.  I am on the shortlist for Legal Commenter of the year at the Family Law Awards.  I’ve won this before, so I didn’t want to campaign for it, feeling that the goodness should be shared. But it was amazing to be nominated, and the words said were very kind.  My readers should vote, if they can spare a minute, and if you want to vote for me that’s very sweet (but don’t feel obligated to do so)  . Voting ends on Friday 19th October, so there’s time if you want to.   https://www.familylawawards.com/ehome/familylawawards2018/vote
  2.  As this blog is about Secure Accommodation, a plug for my book In Secure, which is fiction and set in a secure accommodation unit with ten children – there’s magic, adventure, romance, shocks and scares. It’s Tracy Beaker with Tentacles basically. If you haven’t read it yet, I’d love you to read it. You can get a e-book for 99p and the gorgeous paperback for eleven quid.  If you have read it, please put a review on Amazon, it makes a huge difference. https://www.amazon.co.uk/Secure-Andrew-Pack/dp/1911586947/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=1539007741&sr=8-2

 

Magical sparkle powers, secure accommodation and consent

 

 

These are two intricate judgments about the same child, where two different and unusual points of law collide.

 

  1. For a while now, because there are not enough Secure Accommodation beds for the children who need to be placed in them, the High Court has been asked (and is often granting)  approval for the child to be placed in a unit that is NOT approved for Secure Accommodation and giving all of the powers for the child’s liberty to be restricted, using the Court’s inherent jurisdiction – or what I like to call magical sparkle powers. (I think this is a public enquiry waiting to happen – there are very good reasons – google Pindown – for why Parliament set up a very restrictive statutory regime for how children can be deprived of their liberty, with training and inspection regimes to safeguard those children. Others take a pragmatic view that these children need to be somewhere safe and contained and as we don’t have enough Secure Units, we have to do something, and the High Court are doing their best with the resources we have)
  2. The deprivation of liberty for children as a result of their circumstances short of the secure accommodation regime, where the Court of Appeal and High Court have found that parents can consent to the arrangements and that capacitious children can consent to the arrangements too. So that an authorisation under the inherent jurisdiction is not necessary, because it is being done by consent.

 

What appeared before Mostyn J was a young person for whom the grounds for Secure Accommodation were clearly made out, but there was no bed in a Secure Unit. He was being asked to approve a different form of home to use those powers, BUT it was argued that the young person was consenting to that regime, and so a declaration by the Court for use of inherent jurisdiction was not necessary.

 

The way that Mostyn J approached it was to think about the quality of consent – was it temporary or enduring?

 

A Local Authority v SW and Others 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/576.html

 

Mostyn J firstly sets out his approach when looking at authorising secure accommodation with a lowercase s, under the inherent jurisdiction. I wholeheartedly agree – I’d rather we weren’t doing it at all, but at least this is making efforts to safeguard these very vulnerable children.

 

  1. Since the enactment of the Act that scheme appears to have functioned tolerably well until recent times, when an unhappy phenomenon has arisen, and that phenomenon is that there had not been sufficient authorised places made available under this section. When I say “authorised places” I am talking about places that have been authorised by regulations made pursuant to subsection (7), which allow the Secretary of State to prescribe which places may provide secure accommodation. In recent times, a phenomenon has arisen, as I have said, whereby insufficient places have been made available to meet the demand for children to be placed in secure accommodation. Therefore, a mirror procedure has been devised by the High Court which has authorised placements in secure environments for children in places not authorised pursuant to the regulations made under section 25 of the Children At. And this is such a case. There is no suitable place to accommodate a child pursuant to an order under section 25 of the Children Act (or its Welsh equivalent) apparently available anywhere in the country, even in Scotland.
  2. There have been a number of authorities as to the scope of the power of the High Court under an inherent jurisdiction to make these alternative mirror arrangements. In my opinion, lest the democratic process is to be subverted by judicial activism, it is important that, so far as is practicably achievable, that mirror orders made under the inherent jurisdiction conform as much as possible with the prescriptions within section 25 and its subsidiary regulations. Were the court to devise an alternative scheme that deviated significantly from the terms of section 25 (or its Welsh equivalent) there would, as I have said, be a danger of criticism of judicial activism in conflict with a Parliamentary directive.
  3. Therefore, it seems to me that if the court is to make an alternative mirror order pursuant to its inherent jurisdiction, it should strive to ensure that, in the first instance, it is not longer than 3 months, and that each subsequent renewal is for no more than 6 months. Further, it should be satisfied initially and on each renewal that the criteria within section 25(1) are met. I am not saying that the court is imprisoned within the four corners of the terms of section 25(1). To coin a phrase, it should not have its liberty so deprived, but there should be endeavours made by the court that, so far as possible, it should be satisfied that the statutory criteria are met. Were that not so, then there would be, by judicial activism, established an alternative scheme which perhaps might have lower standards than that which Parliament has decreed should apply where the liberty of a child who is the subject of a care order is deprived.
  4. The compliance of section 25 with the European Human Rights Convention and the Human Rights Act was considered by the Court of Appeal in the famous case of Re K [2001] 1 FLR 526. In that case it was held that a secure accommodation order is indeed a deprivation of liberty within the meaning of article 5 of the Convention, but it is not incompatible with the Convention where it is justified under one of the exceptions in article 5(1). For example, where the order is for the purposes of educational supervision. I should say here that education within article 5(1) plainly is not to be read as being confined purely to scholastic instruction, but must be given, for the purposes of the construction of that provision, a wider definition. Re K was decided 17 years ago, and since then there have been (as is well known) significant developments both in the Strasbourg Court and domestically in the interpretation of the scope and meaning of article 5. Famously, in Storck v Germany [2005] 43 EHRR 96 it was held that in order for article 5 to be engaged three criteria must be met: namely, that there must be an objective component of confinement in a particular restricted place for a not negligible length of time; secondly, there must be a subjective component of lack of valid consent; and, thirdly, there must be an attribution of responsibility to the state. Thus, there must be a non-consensual detention at the behest of the state. This formulation was approved by the Supreme Court in the Cheshire West case [2014] UKSC 19 at para 37.

 

He then turns to the issue of consent

 

  1. The second limb of the formulation requires there to be a lack of valid consent. An interesting question arises, which is relevant to the decision that I have to make, as to whether this requirement has to be demonstrated when an application is determined under section 25 of the Children Act 1989. The notes to the Red Book state that the consent of a young person to the making of a secure accommodation order is not required. The citation for that is Re W (a child) [2016] EWCA (Civ) 804. But that does not really answer the question that I am now posing, which is that if the young person who is the subject of an application under section 25 consents to the application, can the order in fact validly be made? Because in order for there to be a deprivation of liberty, there must be, as the Strasbourg Court has said, present the subjective component of lack of valid consent. So one can see a curious catch-22 arising, which is where the local authority consider that a child should be placed in secure accommodation, and the child through his representatives realises that the case against him or her is very strong, if not overwhelming, and consents to it, that the act of consent in fact prevents the order being made. That cannot be an acceptable construction of the provision, in my respectful opinion, and it is for this reason that consent, or lack of consent, never features in applications under section 25, and that, as Miss Edmondson has eloquently explained, in many cases the applications for these orders are disposed of by consent.
  2. So this gives rise to the question whether there must be demonstrated lack of valid consent if the application is being made under the alternative mirror procedure pursuant to the inherent jurisdiction. If the issue of lack of consent is not a requirement under the statutory procedure, and if, as I have suggested, it is important that the alternative mirror procedure conforms as much as possible to the statutory procedure, it is hard to see why there should be an imputation of the lack of consent requirement into the alternative procedure. However, I am persuaded by Mr Laing that all the authorities under the alternative procedure have emphasised strict compliance with the Strasbourg jurisprudence on article 5. Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative procedure, that it does have to be satisfied of the presence of a lack of valid consent. It may well be that in a case in which an application is being made under section 25 (or under its Welsh sibling) the court will have to consider the point that I have spent some time describing, and whether there does in fact, since the arrival of the Strasbourg jurisprudence to which I have referred, lie latently within section 25 an insoluble catch-22.
  3. So I proceed on the basis that in order for the order to be made today, the 3 components have to be present. There is no dispute as to the first and the third. The question is as to whether the second is demonstrated in circumstances where there is active consent by the child with whom I am concerned to the placement in question.
  4. This matter was considered by Keehan J in the decision of A local authority v D [2016] EWHC 3473 (Fam) (otherwise known as Re C). It has to be said that in that case the conduct of the children concerned was very much of a lower level of concern to that which I am concerned with. However, Keehan J decided clearly that the child in question could give a valid consent. Moreover, he decided at paragraph 58 that once he was satisfied that valid consent has been given, the fact that he may withdraw that consent at some point in the near future does not negate the valid consent he gave nor does it negate the legal consequences of that consent. I have considered this judgment carefully, and I take from it that the concept of consent does not necessarily mean hearing the words “I do”. There must be an authentic consent, and this much is accepted by Mr Laing who represents the child. As he put it, he must say it and mean it. The consent in question must be an authentic consent, and it must be an enduring consent. This means that the court will have to make a judgment as to whether the consent is going to endure in the short to medium term, or whether it is a merely evanescent consent. If the court is satisfied by the history that the consent in question is merely evanescent and is not likely to endure, then, in my judgment, that is not relevant consent for the purposes for which I am concerned. This is, to my mind, to state the obvious. So the court can only make the order in question if it is satisfied that there is a lack of valid consent in the way that I have described it: authentic, and likely to endure.

 

(The bits in italic are the parts that probably lead to the decision being appealed.  For my part, I think that Mostyn is right. We can’t predict whether consent will be withdrawn, but where the history is very clear that it is a temporary consent that the young person can’t maintain, that’s a factor to be taken into account.  Put bluntly, if a Local Authority are looking to have the power to stop a young person leaving a children’s home because they have a history of running away, how much force does the young person saying “okay, I agree that I can’t leave… but if I change my mind and try to, you’ve got to let me” actually have?)

 

On the facts of the case Mostyn J decided that the consent being proffered by the child was not authentic and likely to endure and he made the inherent jurisdiction declarations.

Permission to appeal was then given by Jackson LJ. The child absconded from the unit, and the case came back to Court. And if there was ever a daunting prospect in advocacy it is appearing before Mostyn J on a case where he knows you have just appealed him.  His approach to such things is not sanguine. It is more akin to striking an Edwardian gentleman about the face with a white silken glove. In short, it’s on.

 

Like Donkey Kong.

 

So, part 2

 

A Local Authority v SW part 2  2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/816.html

 

  1. That decision of mine has been appealed and permission to appeal was granted by Peter Jackson LJ on 19th March 2018 under the second limb, namely that there were compelling reasons for an appeal to be heard. I have noted that in the skeleton argument in support of the proposed appeal, an analogue in relation to the consent to sex was made; similarly, an analogue with the formation of a commercial contract was made. It will be for the Court of Appeal to decide whether these analogues have any relevance at all to the consent which, is in fact, in play. I would point out that a person at the age of the child with which I am concerned cannot consent to sex or form a contract, so the relevance of those analogues at the moment presently escapes me.
  2. In my judgment, the view that I took that the consent in question has to be found to be both authentic and enduring is well borne out by the subsequent events. I cite from the witness statement made by a social worker on behalf of the Local Authority dated 16th March 2018. At para.10 it says this:
    1. “On 3rd March 2018, [name redacted] went out for a walk without permission at 16.45 following becoming agitated at the home and staff followed her. A staff member [name redacted] has reported that she maintained contact with [name redacted] through text messaging and met up with her again in McDonald’s at 17.40. [Name redacted] reports to [name redacted] that she was upset about her younger brother staying at his mother’s house when he was not supposed to. On her return, [name redacted] went into her bedroom, the following day staff reported that [name redacted] was pacing back and forth in her room, asking for a paracetamol for a headache. [Name redacted] reports that [name redacted] unusual behaviour continued, leading her to request a room search. [Name redacted] became aggressive towards staff whilst in her bedroom when staff asked her to do a room search. They describe that her eyes were like saucers and could possibly have been under the influence of a substance. [Name redacted] used a plastic plaque to harm herself, was hitting out at staff with it and making verbal threats that she would, “Fuck them up”. The staff reported that [name redacted] calmed down quickly after the incident. Police attendance had initially been requested and when the police arrived, [name redacted] became agitated again and upon search of her, a mobile phone with Internet use fell out of her bra. Upon a search of the room, nothing further was found. [Name redacted] was admitted to hospital following the incident of self-harm, where she had superficially cut her wrists. At the hospital, she was seen by CAMHS and they concluded that she had no further self-harm intent and no suicidal ideation and were happy for her to be discharged. She was discharged back to [name redacted] on 6th March 2018 at 2.00 p.m…

12. On 6th March 2018, following being discharged, [name redacted] left her accommodation at about 5.00 p.m. and was reported missing to the police. She was found by the police smelling of alcohol, having hallucinations and was aggressive. She was refusing to be monitored and was very agitated and was given two milligrams of Lorazepam to calm her down. Ambulance staff transported her to hospital on 7th March 2018 at 5.00 a.m. where [name redacted] reported to hospital staff that she did not remember what had happened, was given alcohol and sweets and reported to have had anal and oral sex with one man who she did not know. [Name redacted] refused to go to the [name redacted], a provision to offer urgent and follow-up care to people who have been sexually assaulted but agreed to a hepatitis B vaccine, bloods and sexual health tests. [Name redacted] was given three weeks preventative medication for HIV.”

  1. Three days after that, the placement of the child completely broke down and she was moved to a new placement in the Midlands. She is content and compliant at that placement. Everyone hopes that this new placement will represent a success for her and that improvements can be made in her mental rehabilitation.
  2. The consequence of this is that the order that I made authorising her detention at the previous placement has been overtaken by events. That order will therefore be discharged and replaced by a fresh order made by me today. The consequence of that is that the order in respect of which permission to appeal has been granted by Peter Jackson LJ no longer exists and that appeal becomes redundant. However, in view of the fact that I intend to adopt the same legal reasoning in respect of this fresh placement will, no doubt, lead the child to seek permission to appeal this new order, notwithstanding that the point of this exercise entirely escapes me.

 

At this point, I like to pause and imagine the charged atmosphere should Mostyn J and Peter Jackson LJ find themselves in a slow lift together at the Royal Courts of Justice, with perhaps the “Girl from Ipanema” as elevator hold music playing in the background.

 

So, the order that was being appealed is no more, so the appeal has to end (it is an appeal of an order, not a decision – though the Court of Appeal do fluctuate quite wildly on whether they champion this point or completely ignore it – see the various decisions about findings of fact).  Mostyn J recognises that this judgment is also likely to be appealed (though he is on even firmer ground in deciding that the young person’s consent is not enduring, the point of law as to whether that’s necessary if capacity and consent are both present remains)

 

  1. On the last occasion in my judgment I held that the consent, as I have said, can only be found to exist where it is authentic and enduring. That I was correct in that determination is demonstrated by the subsequent events. Notwithstanding that the child on the last occasion expressed to me, seemingly authentic consent, subsequent events show that within a relatively short period of time, that consent was not genuinely expressed because the events which I have set out occurred.
  2. For these reasons, I am satisfied once again, even more satisfied than I was on the previous occasion, that the deprivation of liberty declaration should be given, granting the Local Authority the powers and protections which I have mentioned in my previous judgment.
  3. I have asked, if I were not to make this declaration, what position would the Local Authority and, indeed, the child be left in? She would not be in a position of formal state detention with the powers and protections that attach to that. She would, on the face of it, be free to leave her present placement, although the consequences would be that she would then become an officially missing person and the Local Authority could summon police assistance to bring her back to base, but there will be nothing to prevent her leaving again almost instantly, a situation that is almost too absurd to contemplate as a consequence that the law intends to apply.
  4. For these orders, therefore, I make an equivalent order to the one that I made on the last occasion in relation to this new placement. For the avoidance of any doubt and in anticipation of an application for leave to appeal, I refuse leave to appeal on the same basis that I did on the last occasion, namely that I see no prospect of an appeal succeeding and, with all due respect to Peter Jackson LJ, I can see myself no compelling reason for the appeal to be heard.
  5. I will authorise the bespeaking with expedition of a transcript of the judgment I have just given at public expense.

 

(Bespeaking, by the way, doesn’t refer to speech – it isn’t a posh way of saying, “speaking”, it means to order in advance. It is like Captain Picard saying “Make it so”)

 

Mostyn J had raised in the first judgment the issue of whether consent could block a Secure Accommodation application, if it were not for his test of whether the consent is authentic and enduring.  If it were not for the particular construction of s25, that would be a powerful point.  If the ‘no order principle’ applied to s25, consent from the young person would be sufficient to block the order, and then the young person could immediately withdraw the consent and walk out of the placement. Assuming no criminal offence was being committed, nobody could stop the child (it is arguable that the LA could use the 72 hour provision if they had not already done so, but only arguable)

 

However, section 25 is constructed in such a way that it is not at all clear that s1(5) applies

1 (5)Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.

That would mean that the Court should not make a Secure Accommodation Order if the child is consenting.

 

BUT

 

s25 (4)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.

 

And those two sections are in conflict.  After nearly 30 years of the Act, we don’t actually know whether s1(5) applies to a section 25 order.  I would always have said that it didn’t, but it is less clear since the Human Rights Act. Since a Court making a Secure Accommodation Order not only has to think about article 5, but also article  8 – is it proportionate and necessary?  And I think consent might come into play on necessity.

 

In conclusion then, I agree with Mostyn J’s decision and rationale. I disagree that there’s no value in an appeal. It is not usually desirable to have an appeal on a decision that you think is right, but it would be nice to have clarity and backing.  Particularly given that a lot of Secure Accommodation applications are heard before the Magistrates and having to decide whether consent blocks Secure Accommodation order might be better if they have some very clear judicial guidance.

 

 

Absconding and secure accommodation

This Court of Appeal decision hasn’t come up on Bailii yet, and I’m grateful to Graham Cole from Luton’s LA legal team for alerting me to it.

 

RE W (A CHILD) (2016)

 

[2016] EWCA Civ 804

 

A lawtel link is here, but that’s only good if you have access codes to it. Will keep an eye out for it on Bailii.

 

https://www.lawtel.com/MyLawtel/Documents/AC0151488

 

It relates to an application for a Secure Accommodation Order for a girl who was 17 years and 8 months old.  There’s a common misconception that you can’t have a Secure Accommodation Order on a child over 17  (in fact, what the Secure Accommodation Regs prohibit is secure accommodation for a child accommodated under s20 (5) of the Children Act 1989.

 

Secure Accommodation Regulations 1991

Children to whom section 25 of the Act shall not apply

5. –

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983(1) or in respect of whom an order has been made under section 53 of the Children and Young Persons Act 1933(2) (punishment of certain grave crimes).

(2) Section 25 of the Act shall not apply to a child–

(a)to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

 

So a 17 year old accommodated because of a Care Order, or under s20(3) is okay.

However, when you look at the definitions of s20(3) and s20(5) side by side

 

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

 

and

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

Then you can see that determining which one was used for any given young person is tricky, as there’s a waffer-thin mint between them, AND it all hinges on what was in the LA mind at the time of accommodation and whether they correctly alloted the young person to the (reasonable and proportionate) type of accommodation.   IF the accommodation is to stop their welfare being seriously prejudiced, then they can securely accommodate. If the accommodation was just to safeguard or promote welfare, they can’t.

 

Initially, I thought “Well, any s20 where the concerns are sufficient to want to go for secure, will trigger s20(3)”  but remember, one is looking at the reason for the provision of accommodation in the first place, not necessarily immediately before the secure accommodation application. If a young person leaves home and is accommodated under s20(5)  to prevent them having to sofa surf or be homeless, then when there’s a later deterioration in behaviour that triggers the secure criteria, the option wouldn’t be open to the LA.   Can the LA discharge the s20(5) and immediately convert it to s20(3) ?  That sounds a bit iffy to me.  (My legal summary of ‘a bit iffy’ is not necessarily the way I would express it in the Court of Appeal. Let us instead say “has the hallmarks of an abuse of process)

 

Be grateful I went for THIS image rather than the many others available

Be grateful I went for THIS image rather than the many others available

 

What has always been a bit dubious/uncertain, if you don’t have a Care Order on the 17 year old, is the power of the LA to accommodate a young person against their will, and specifically by then locking them up, if accommodated under s20(3) and a Secure Accommodation Order is obtained.

The statute doesn’t say anything about a young person’s capacity to discharge THEMSELVES from s20 accommodation. It says specifically that a parent has the right to discharge them by objecting or removing, and it says specifically that post 16 a parent can’t do that if the young person wants to remain in s20. But it says nothing about a young person saying “I don’t want to be here, I’m checking out.”

Well, maybe you can check out any time you want, but you can never leave….

 

W’s lawyers were saying that W DID NOT consent to being accommodated under s20(3), and thus could not be accommodated, and if she wasn’t accommodated, she couldn’t be SECURELY ACCOMMODATED.

The LA lawyers said, the statute doesn’t say that W has to consent.   (It doesn’t say that the parents have to consent either, but that particular ship has sailed with the caselaw on s20 over the last year)

The Court of Appeal on this point said  (and curse it not being on Bailii, because I’m having to TYPE this rather than cut and paste it as normal)

 

“A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a Local Authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child’s consent is not a pre-requisite of the making of a secure accommodation order”

They also indicate that for secure based on s20(3), the parents have to be consenting to the s20 accommodation  (the s20(11) provision that a 16 year old can block parents removing them from s20 if they want to stay there doesn’t apply, because it is not removal but entry that is up for debate)

The Court of Appeal also had to look at whether the secure accommodation criteria were met, and there’s a novel argument there.  W’s lawyers argued that W was not ‘absconding’ from placements. She was absenting herself and then returning, whereas absconding carries the connotation of ‘escape’  and this was developed into ‘escape’ has a connotation of an intent to be absent indefinitely.

 

Now, that’s very very important. An awful lot of the ‘absconding’ that you see in application for Secure Accommodation Orders is a young person going missing for a few days and coming back of their own free will – and them putting themselves in danger in the interim. You do see some absconding which fits the classic ‘escape with intent to avoid recapture’ where the child is missing for weeks or even months and generally gets picked up by the police not entirely voluntarily, but those are rarer.   The very modern post Rochdale phenomenon of Child Sexual Exploitation leading to secure is very much a young girl not returning to placement after school and staying away for a few days (with abusive and exploitative men) and then returning home.  This case is raising the important issue of whether that actually IS absconding.  If it ISN’T, then the first of the two possible limbs to satisfy the Secure Criteria is not made out.

 

25 Use of accomodation 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.

 

So if the Court of Appeal rule that ‘absconding’ for s25 means some intent to escape with intent to stay away, then ground (a) can’t be made out for a lot of young people in Secure, because although they are AWOL a lot, and missing a lot, they are coming back and intended to, rather than had the intent to ‘escape’.   Ground (b) might still apply, but most Secures are dealt with on ground (a).

 

This could be very big.

What did the Court of Appeal decide?

 

21. Miss Judd QC’s arguments in relation to the Judge’s definition of ‘absconding’ arose in the fact-specific circumstances of the case and did not persuade us that it was necessary to define the term beyond its everyday meaning.

 

[That noise you just heard was 500 LA lawyers breathing out. Don’t jump the gun – the Court of Appeal might SAY that they don’t think it’s necessary, but they are probably still about to do it anyway]

 

Munby J (as he then was)

 

[500 LA lawyers just said ‘oh god, no’]

 

in Re G (Secure Accommodation Order) 2001 FLR 884 at 895 relied on the definition of ‘abscond’ found in the Concise Oxford English Dictionary. This accords with the usual application of the term to connote the element of ‘escape’ from an imposed regime.  Mr Tyler QC’s reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps borne of the need to support his argument that Keehan J’s approach to the issue was correct.  Although trite to say, the facts will speak for themselves.  As it is, we are satisfied, as we indicate below, that the Judge wrongly categorised W’s absences from the Unit in which she had been placed since January 2016 as absconding.

 

This particular girl had NOT absconded.

 

We don’t have Keehan J’s judgment to look at the facts, but the Court of Appeal say at para 7 that she has from a variety of placements and units, absented herself at all hours to pursue her own ends and has not followed the rules in any of the placements, when absent she has been with risky adult males and come back with sums of money. It looks, therefore like the sort of CSE case I discussed earlier.  Lots of short-lived absences without leave, which the Court of Appeal concluded did not amount to absconding.

Eep.

22 . In determining that W had absconded, Keehan J invoked the facts that W had ‘disengaged’ with the Unit, returning “not just a few hours later but well into the following day”.  I do not consider that this meant that W was ‘absconding’ from the Unit, in terms of  escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed.

 

The Court of Appeal went on to say that in W’s case, they considered that the second criteria (b) was made out in any event and thus a Secure Accommodation Order could legitimately be made.

 

But the first criteria is now in tatters for a lot of cases  –  the Court of Appeal are looking for evidence that the young person ‘escaped indefinitely from an imposed regime’   rather than ‘deliberately absenting themselves for  limited period in breach of rules.  Obviously, the shorter the period of absence the harder it will be to prove that the young person ‘escaped indefinitely’, particularly if they return of their own volition.  Ground (b) will be the criteria to inspect chronologies for in the future – the absconding ground just became very tough to prove in 80% of cases.

 

 

If you enjoyed this piece, or like the blog generally – my novel which is set in a Children’s Secure Accommodation centre, is available to pre-order and should be out around Christmas time.  I’d LOVE your support, which you can provide by pre-ordering here

 

https://unbound.com/books/in-secure

 

A whole heap of trouble (secure accommodation)

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

http://www.bailii.org/ew/cases/EWHC/Fam/2014/4436.html

 

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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)”

And (4):

“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]

secure accommodation bed shortage

 

Re A (Secure Accommodation) 2014 is a County Court decision and contains nothing of earth-shattering importance in terms of law or precedent, but raises a very real problem.

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B90.html

Secure accommodation applications are relatively rare and reserved for drastic situations, where a child is either running away and putting themselves at significant harm, or that they would cause themselves or others harm if they weren’t kept in accommodation that was entitled to restrict their liberty.  (I have to say that I personally am never keen on doing them, but there are times when there is literally nothing else that can be done to keep that child, or others, safe)

 

In this case, there was little doubt that the boy needed that sort of accommodation

 

Nevertheless the chronology establishes a terrifying history of A behaving both violently and in an assaultive sexual manner to women.  He has three convictions for indecent assault perpetrated upon women in addition to convictions for violence outside a sexual context.  A’s victims of his non sexual violence and of his sexual assaults include both his peers, the staff who look after him, or try to look after him, and strangers who he encounters.  A’s history, as set out in this document, is terrifying.  It seems to me proper on the evidence before me to conclude that A is a young man who presents a danger to the public and, indeed, to himself by reason of his behaviour.

 

The Court made the order and the Local Authority tried to find a bed for this troubled young boy in accommodation that would meet his needs. They had no success and went back to Court to let the Judge know.

 

When this matter came before me on Thursday last week, Lancashire County Council informed the Court that although there are 17 secure units in the country, none appeared then to have the facilities to accept A.  That is because, in those 17 secure units in the country, whilst there are 1,200 places for children or young people who have been subject to a criminal conviction and a custodial sentence there are only 60 allocated as welfare places. A, upon his release, from his custodial sentence, was to become a child in respect of whom a welfare place and not a criminal place was required.

 

Since last Thursday I know that Lancashire County Council have been unstinting in their efforts to find a safe and proper placement for A both in his own interests and in the interests of the public and other people generally.  The senior manager, the team manager and the social worker allocated to him have been working around the clock and through last weekend to try and identify a placement for A.  They have also approached agencies with whom they should be able to work in partnership, including the Youth Offending Team, the Probation Service, the Department of Education and also the Ministry of Justice but they have not been able to identify a placement for A. This is despite approaches, in some cases repeatedly, to all of the 17 agencies with secure placements.  In some cases, that is simply because there are no welfare beds available.  In some cases, that is because the risks that A presents of sexual offending mean that the institutions concerned are not able to accommodate him.  In one case, for example, this is because they have a number of young women in placement.  In other cases, it is difficult to fathom what the issue is other than the high risk this young man presents might suggest that he is too much for them.

I do not consider it appropriate to name those units who have declined to take A but simply to outline the facts which amount to a terrible national shortage of secure placements for children and young people who are a danger to themselves and others.  I have already said that there are 1,200 beds for young people who are convicted of criminal offences but only 60 for those who are subject to section 25 orders, referred to as “welfare beds”.  The Local Authority, during discussions with the Department of Education over the weekend about A was told that there were three other young people who were in the same position at the time of their enquiries.

I was faced last Thursday with a young man who was to be released from custody on Friday for whom there was no secure placement available. This was despite him abundantly satisfying the criteria for a secure accommodation order.  I, therefore, adjourned the matter until today.  The Local Authority wished to seek from Rainsbrook Secure Unit, where he has been detained during his custodial sentence, information about any assessment or therapeutic work that has been done with him whilst he has been detained.  That information was not forthcoming from that unit. I do now have, in addition to the evidence filed with the application a helpful chronology prepared by the Local Authority of the exhaustive efforts that they have made to secure secure accommodation for him.

 

Thus, despite the Local Authority wanting to place the boy in secure accommodation, and the Court approving that, a lack of beds meant it didn’t happen.

Thus it was that, at two o’clock on Friday afternoon 6th June 2014, A was released from custody and transported back to Lancashire, his home area. He had to be placed in a children’s home: a children’s home with six other children also in the placement.  The Local Authority seconded three additional staff into the home to look after A specifically having regard for the risks I have outlined in this judgment.  Notwithstanding that, A, having initially said that he was going to comply with the regime at the children’s home and having had a meal with a social worker and having spoken to his mother over the telephone, left that unit with another young person and stayed out until five o’clock in the morning.  Furthermore A does not dispute that, whilst he was out, he used cannabis, to which I have omitted to say he appears to have been addicted since before the age of 10 years.  Those events are extremely concerning in the circumstances of the chronology and the risks that I have outlined and those events strongly support the urgent need for A to be placed in a secure unit.

The efforts so far made by the Local Authority have produced only a possibility of him going to a unit in south Wales.  Neither A nor his mother want him to be placed so far away from home but if that is the only placement available, then it seems to me it would be a proper placement, although, of course, my jurisdiction is simply to permit the Local Authority to place in secure accommodation.  The alternative to South Wales is a unit in Leeds where the Department of Education may be able to release a criminal bed to become a welfare bed.  That unit could still decline to take A because of the risks that he presents.

The reason I have delivered this judgment and propose to authorise its publication is because this case demonstrates a gross shortage of resource.  The shortage necessarily creates a lack of protection for the public and for the dangerous young person/child unless and until a criminal offence, sufficiently serious to attract  a custodial sentence, is committed. Neither the Local Authority nor this court would want to see anything else happening in this case having regard for the already frightening chronology. Another incident would have every potential to be a serious incident having regard for the history I have read in respect of A.  The fact that I was told there were three other children in the same situation over last weekend means that it is only right for the circumstances in this case to be made public

 

This is a real worry – there need to be beds available for children in this position, and a provision of 60 nationally is well short of what is needed  (particularly since in the light of the Rochdale ‘grooming and sexual exploitation’ cases, Local Authorities and police forces are alive to the possibility of secure accommodation being the only real option to protect victims and get them away from sexual exploitation if the police aren’t able to press charges (because the girls won’t make a complaint due to fear, bribery or manipulation).

 

Also, although nobody has really got stuck into this yet, Baroness Hale’s judgment in Cheshire West means that an awful lot of children with disabilities/cognitive issues are actually being deprived of liberty than were previously thought, and many of them might end up coming into the Secure Accommodation system.