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)
 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.
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
(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.
(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)
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—
(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.
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