The local authority was applying for a secure accommodation order in respect of B (aged 15). B and her parents opposed this, mainly because the proposed placement was some distance away.
Section 25(1) of the Children Act 1989 says:
… 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 that –
- he has a history of absconding and is likely to abscond from any other description of accommodation; and
- if he absconds, he is likely to suffer significant harm; or
- that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
The questions for the Court of Appeal
Lord Justice Baker said that there were four questions about section 25 that needed answers:
(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 (deprivation of liberty) and 8 (respect for private and family life) of the ECHR, to carry out an evaluation of proportionality?
He added that there were two reasons that made it timely for the Court to look at section 25. First because, the Supreme Court has made some provisional observations about section 25 in its recent decision, Re D (A Child)  UKSC 42 Second, there is a desperate shortage of secure accommodation in England and Wales. We wrote about this here. https://www.transparencyproject.org.uk/the-problems-are-huge-teenagers-in-care-living-in-caravan-parks/
As Baker LJ says at para 6:
‘The absence of sufficient resources in such cases means that local authorities are frequently prevented from complying with their statutory obligations to meet the welfare needs of a cohort of vulnerable young people who are at the greatest risk of harm. The provision of such resources is, of course, expensive but the long-term costs of failing to make provision are invariably much greater. This is a problem which needs urgent attention by those responsible for the provision of resources in this area. ‘
The case about B
B is 15 year old girl who came to the attention of social services in 2018 when she reported that she had been abused by a 52 year old man. There followed a series of disturbing events, including suicide attempts by B, and her physically attacking her family. B was taken into care and in May 2019, began living at N House, a property that was being developed to house up to five children with autism but not yet completely ready. B was the sole resident at N House but this wasn’t thought suitable in the longer term, as she had been absconding and self-harming. Staff had been called on to restrain her for her own safety, but this extent of detention had been authorised under the High Court inherent jurisdiction. The evidence given to the court was that B needed specialist therapy that wasn’t available at N House. The local authority were looking for a secure accommodation place for her but of course these are hard to find. When they did find somewhere that could offer B the in-house therapy she needed and applied for the section 25 order in June, this was refused by the judge. By this time, N was attending school and arrangements were in place, as had been described by the judge:
‘Two staff go with B whenever she is out in the community. Waking night-staff are on shift throughout the night to monitor B when she is in the accommodation, doors and windows are kept locked and two staff are on hand, and the staff continually assess the risk of her behaviours and, if required, can restrain B if she is at serious risk of harming herself or others. What that shows is that there is, here, in place an alternative to secure accommodation which enables N House, legally, to put in place arrangements to prevent B from absconding.’ [para 28]
The judge therefore concluded that because B was not, at that point in time, at risk of absconding or harming herself at N House, the criteria for a section 25 order, depriving her of her liberty, were not met. This is understandable, as the language in s 25 is so restrictive.
On appeal, the local authority argued that the regime at N House as described in evidence from their service manager clearly amounted to accommodation “provided for the purpose of restricting liberty” under s 25. They also argued that it wasn’t satisfactory for children to be detained in non-regulated placements under the inherent jurisdiction if the s 25 framework could be used. The Court of Appeal concluded that the judge’s decision to refuse the application was a wrong interpretation of s 25, and the meaning of ‘secure accommodation’. B had been admitted to N house as a respite placement and the local authority had decided that she should remain there for the time being and that she would be the only resident at the property, and that her liberty would be restricted. This meant that although N House was not designed as secure accommodation, it had ‘become’ secure accommodation for B within the meaning of s 25(1) because of the use to which it had been put in her case. The appeal by the local authority was allowed. However, by the date of the appeal hearing, things had (unsurprisingly) moved on. Baker LJ said:
‘Over four months have now passed since the judge’s decision. In some respects, B’s circumstances have changed. Her mother and stepfather have seen encouraging progress while she has remained at N House. But the local authority remains concerned that, without comprehensive therapeutic support, she will remain at risk. The local authority must therefore decide whether it wishes to pursue its application for a secure accommodation order. The placement at the secure unit on the South coast is no longer available. If the local authority is still of the view that B should be securely accommodated and has identified a suitable placement in an approved children’s home, it will no doubt pursue its application under s.25.’ [para 112]
Proceedings have been adjourned until December.
Baker LJ answered his four questions as follows:
- “Secure accommodation” is accommodation designed for, or having as its primary purpose, the restriction of liberty. 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.
- The criteria include (1) whether the child is being “looked after” (2) whether the accommodation proposed by the local authority is “secure accommodation” in the sense above (3) whether, if the local authority is proposing to place the child in a secure children’s home, the accommodation has been approved by the Secretary of State for that use, and (4) whether, if the child is aged under 13, the placement of that specific child has been approved by the Secretary of State.
- The child’s welfare is not the court’s paramount consideration but is plainly an important part of the court’s analysis.
- The stringent criteria within s.25 might itself amount to an inbuilt proportionality check, but there will be occasions where something more that these stringent criteria in the section’s wording is required. If the statutory criteria are satisfied, but the only approved secure accommodation is located several hundred miles away from the child’s home, the making of the order will inevitably amount to a greater interference with Article 8 rights than if it is close to home.
Interestingly, the Court of Appeal has stated that government guidance issued in 2014 is wrong in suggesting that secure accommodation should not be considered a ‘last resort’ because it may on occasion be a positive option for a particular child. The Court of Appeal rejected this: under Article 5, locking a child up can only be a proportionate response where the child’s welfare, including the safety and protection of the public, demands it.
What does this mean for other children?
It is mentioned that when Peter Jackson LJ gave permission to appeal that he invited the ALC to make submissions. Unfortunately, we can only read about part of the arguments being made by the ALC and what their interest was in intervening, because the Court said that much of it went beyond the case in front of them. The judgment focuses on the ALC’s concern that, if the court were to accept the local authority’s submission as to the meaning of “secure accommodation”, judges might be faced with a marked reduction in placement options for a child with behavioural problems, with the result that a regulated secure children’s home might be the only realistic option available to the court. The ALC believed that there is a need for bespoke placements that restrict the liberty of children with escalating or complex behaviours even if those placements are, unregulated and unregistered, and that a secure order mist be the last resort.
A new test
In future cases, there is now a ‘test’ set out by Baker LJ in para 98:
(1) Is the child being “looked after” by a local authority?
(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or does it 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? (We don’t know why the Court omitted Wales, because exactly the same provisions apply under section 119 of the Social Services and Well-being (Wales) Act 2014 under which the secure unit has to be approved by Welsh 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?
Subsequent to this case being heard, on 13 November, the President of the Family Division, Sir Andrew McFarlane, issued guidance in England and Wales on the use of unregulated placements. This requires courts to monitor the progress of the application for registration and, if registration is not achieved, to review its continued approval of the child’s placement in an unregistered unit. His concerns were explained in a lecture back in May.
All these cases about individual children raise wider questions. For example, about the five children who could now be living in the specially designed accommodation for them at N House. It won’t be available to them until there is somewhere suitable for B to live.