17 December, 2019
The Court of Appeal has handed down an important decision, which analyses the law pertaining to secure accommodation orders.
The local authority appealed an order refusing a local authority's application for a secure accommodation order under section 25 of the Children Act 1989 (s25) in respect of a 15 year old girl, hereafter referred to as B.
Section 25 reads as follows: … 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 -
Lord Justice Baker said that the appeal raised four important questions on the interpretation of s25:
Baker LJ also opened the case by stating 'the context in which this appeal is being considered is what can fairly be described as the crisis in the provision of secure accommodation in England and Wales'.
B was a 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, allegations of abuse by her mother and stepfather and B threatening her family members with knives and screwdrivers.
In January 2019, she was accommodated by the local authority under s20 of the Children Act 1989. The local authority then started care proceedings and were granted an interim care order.
B's behaviour continued to deteriorate. On 15 May 2019, the local authority, having failed to find a place in an approved secure unit, approached a local agency about an alternative placement. The agency service director suggested a placement at N House. This property was being developed to house up to five children with autism, but was not yet completely ready. B was admitted at N House as the sole resident, but N House was not registered with Ofsted nor approved by the Secretary of State for use as secure accommodation.
On 20 May 2019, the local authority applied to court for an order under the inherent jurisdiction authorising the authority to keep B at N House. The allocated social worker asked the court to make orders 'requiring that B be kept at N House and that it is lawful to meet her care needs whilst she is placed there, including by restricting her liberty'.
The measures proposed were that she;
HH Judge Anderson made an order under the inherent jurisdiction approving the placement until further order in the following terms: "the placement of B at N House is appropriate, in her best interests, and it is lawful for her assessed care and support needs to be met at the placement (which may amount to a deprivation of liberty) notwithstanding that the placement is not registered with Ofsted."
It was accepted that, taken together, the measures imposed at N House amounted to a deprivation of B's liberty within the meaning of Article 5 of the ECHR.
Following this, the staff at N House informed the allocated social worker that B needed to be at an approved secure unit. The local authority therefore continued to search for a placement in an approved secure accommodation. They later found a unit on the South coast, several hundred miles from B's home.
On 4 June 2019, the local authority applied for an order under s25. When the application came before the court on 10 June 2019, the judge refused to make the order, holding that the criteria for making such an order were not satisfied and that it would be disproportionate to make the order. Thereafter, B remained at N House.
On appeal, the local authority argued that the regime at N House, as described above, clearly amounted to accommodation 'provided for the purpose of restricting liberty' under s25. They also argued that it was not satisfactory for children to be detained in non-regulated placements under the inherent jurisdiction if the s25 framework could be used.
The Court of Appeal concluded that the judge's decision to refuse the application was a wrong interpretation of s25 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 and that her liberty would be restricted.
The appeal by the local authority was allowed.
Baker LJ answered his four questions above as follows:
In future cases, there is now a 'test', which was helpfully set out by Baker LJ:
However, the Court confirmed that secure accommodation remains a measure of last resort and courts will be under an obligation to consider alternative obligations.
The Court of Appeal's clarification of the relevant criteria is helpful, though it is important to note that there will be an expectation that any future applications for a secure accommodation order will be accompanied by social work evidence, which addresses all the relevant criteria.