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

“the placement of B at N House with [the agency] 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 shall be the duty of a local authority looking after any child (a) to safeguard and promote his welfare…”

“If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.”

“(1) Accommodation in a children’s home shall not be used as secure accommodation unless (a) in the case of accommodation in England, it has been approved by the Secretary of State for that use (b) in the case of accommodation in Scotland, it is provided by a service which has been approved by the Scottish Ministers …. (2) Approval by the Secretary of State under paragraph (1) may be given subject to any terms and conditions that the Secretary of State thinks fit.” (In passing I note that, as originally passed, regulation 3 provided: “Accommodation in a community home shall not be used as secure accommodation unless it has been approved by the Secretary of State for such use and approval shall be subject to such terms and conditions as he sees fit”.) (a) in the case of accommodation in England, it has been approved by the Secretary of State for that use (b) in the case of accommodation in Scotland, it is provided by a service which has been approved by the Scottish Ministers …. • Regulation 7 provides that s.25 shall apply to certain other categories of children in addition to those “looked after” by a local authority – for example, children accommodated by health authorities – and makes modifications to some of the provisions in s.25 in respect of those other categories of children. • Regulation 10(1) provides that “subject to paragraphs (2) and (3) [not relevant to this appeal], the maximum period beyond which a child to whom s.25 of the Act applies may not be kept in secure accommodation without the authority of the court is an aggregate of 72 hours (whether or not consecutive) in any period of 28 consecutive days.” • Regulation 11 provides that “subject to regulations 12 and 13 the maximum period for which a court may authorise a child to whom s.25 of the Act applies to be kept in secure accommodation is three months.” • Regulation 12 provides that “subject to regulation 13 a court may from time to time authorise a child to whom s.25 of the Act applies to be kept in secure accommodation for a further period not exceeding six months at any one time.”

“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. 41. 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. 42. For some children a period of accommodation in a secure children’s home will represent the only way of meeting their complex needs, as it will provide them with a safe and secure environment, enhanced levels of staffing, and specialist programmes of support. A secure placement may be the most suitable, and only, way of responding to the likelihood of a child suffering significant harm or injuring themselves or others. … 47. It is the role of the court to safeguard the child’s welfare from inappropriate or unnecessary use of secure accommodation, by satisfying itself that those making the application have demonstrated that the statutory criteria have been met.”

“B requires stability and long-term therapeutic support. B has shown she is able to regulate herself and wants help. There are positives and negatives with both options before the court. I believe the overriding need is for B to get the right mental health support, and this is only viable through the secure unit placement at this time.”

“20. … there is no question that, looking at the whole of B’s history, she does have a history of absconding. The question to my mind is the second part of the wording of s.25(1)(a), whether it is established that she is ‘likely to abscond from any other description of accommodation’ 21. That is an important safeguard built into the legislation. The legislation is designed to have strict criteria that must be both fulfilled before the local authority is able to establish that a secure accommodation order should be made. What I am faced with in the current situation is, in fact, an overwhelmingly positive description of the care arrangements that have been put in place for B at N House. 22. [The service manager] herself said that once N House have the authority of the court to put in place arrangements which amounted to a deprivation of liberty, it was able to do so. She has described … that they have worked well. Two staff go with B whenever she is out in the community. Waking nightstaff 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. 23. The nub of the issue becomes the need for B to be educated. The local authority say that, because of the one incident on 24 May 2019 when B left the school, this shows that these arrangements mean that she is likely to abscond when she is at school. I am, however, far from satisfied that the local authority, based on that one single incident, is able to establish that that part of the wording in s.25(1)(a) (“likely to abscond from any other description of accommodation”) is met. I am persuaded by the submissions made to me that the local authority has it within its power to put in place arrangements addressing the situation at school which would mean that that part of the test is not met and that the local authority should strive to do so. 24. On that basis, I am not prepared to find that the wording of s.25(1)(a) of the test is met. 25. S.25(1)(b) is an alternative ground for secure accommodation and that is that if B “is kept in any other description of accommodation she is likely to injure herself or other persons”. 26. Again, I am satisfied that the arrangements that have been put in place for B now are effective. They are working. Indeed, [the service manager’s] evidence in very large measure was to that effect. No service or institution presented with a child such as B is able to guarantee the situation. The local authority, in my judgment, in advancing a case on that ground (s.25(1)(b)) must also bring into account the alternative for B being moved against her will to the other end of the country … and the effect that that might have on her own behaviour. 27. In my judgment, the local authority, on the positive evidence presented to the court as to the care arrangements now in place for B at N House, are not able to establish that limb of the test either. So much of the local authority’s written evidence, in my judgment, shows that the real basis for their thinking is one that cannot be brought within section 25. I do not criticise [the service manager] for this at all. She presented as a professional person who was concerned to do what was right and best for B. But when I read her statement, I was struck by the fact that when she spoke of the risk to B, she spoke of them in the context that if the deprivation of liberty safeguards were removed from her, or if they were successful in the challenge, or if B escalated her behaviours such as she was focused on breaking the placement down. But none of these things have arisen, as she told me very clearly in her oral evidence. The whole point of s.25 is to ensure that the statute is properly interpreted and applied to the situation that there is now. I am not prepared to say that any of those matters, which are contingent on things which have not happened or presuppose the introduction of less restrictive arrangements for B (which is not contemplated by anyone at this stage) somehow satisfy the test in section 25. They do not. 28. So it is that I am not satisfied, as at this time on the evidence before me, that the s.25 grounds for secure accommodation are, in fact, made out. There is, I should add, a line of authority which suggests that proportionality should feature as part of this exercise. The strict approach is one of strict statutory interpretation, the alternative approach – which has some support from some case law - is that proportionality should be brought into account. 29. In many respects, what I am about to say is academic, because I have found that the s.25 criteria are not met. But if I were permitted to introduce proportionality into the overall exercise, in this particular case given the huge beneficial changes that have been brought about since the middle of May for B since the placement at N House, given the professional praise that there has been for those changed arrangements, given that that placement secures for B an alternative placement which is meeting her needs, safeguarding her at a time when she can remain in close proximity to her family home, given it accords with her wishes, given it has enabled good quality relationships to be formed with other professionals, given it does allow for psychological input for B locally which can be continued rather than starting again, and given it has the support of her children’s guardian, proportionality would also very strongly come down in favour of the decision that I have made ….”

“It is important to note that it is the restriction of liberty which is considered to be the essential factor in determining what is secure accommodation. To constitute secure accommodation, a place does not have to be so designated; each case will turn on its own facts.”

“Whilst I respectfully agree with Cazalet J that 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 individual cases, it does seem to me that the more natural meaning of the words ‘provided for the purpose of restricting liberty’ is ‘designed for, or having as its primary purpose’ the restriction of liberty. The circumstances in which s.25 operates based on the premise that the child has a history of absconding and is likely to abscond from any other description of accommodation the alternative premise, ‘that if he is kept in any other description of accommodation he is likely to injure himself or others’ once again envisages a secure regime designed to prevent self-harm. I prefer to look at the clinic, and ask myself: ‘is it accommodation provided for the purpose of restricting liberty’? This is, of course, as Cazalet J indicates, the question of fact.”

“Whilst it can readily be accepted that the intention is that only properly authorised children’s homes are to be used as accommodation for the purpose of restricting liberty, it does not necessarily follow that, in practice, a child could not find him or herself placed or kept in a children’s home which, but for the fact that it does not have the Secretary of State’s approval, has every appearance of being secure accommodation. If the argument advanced by the Secretaries of State is right, such children might be doubly prejudiced, i.e. placed in an unapproved children’s home and outside the protective regime of section 25.”

“even if the approach commended by the Secretaries of State is correct, it would not serve to identify “secure accommodation” in all its various settings, but only in so far as children’s homes are concerned, and it would leave unanswered questions in relation to many other children. Accordingly, there being no reliable and universally applicable shortcuts to identifying secure accommodation, it is necessary to look more closely at the wording of section 25(1) in order to determine what circumstances fall within it.”

“Focusing on the accommodation itself does not, however, provide such a simple answer to the problem of what is secure accommodation within s.25. s.25 extends well beyond local authority homes, and undoubtedly encompasses secure accommodation which does not have to be approved by the Secretary of State. Furthermore, the purpose of the provisions considered by the House of Lords was very different from the purpose of s.25. They were concerned with a scheme which conferred power on a court remanding a child to local authority accommodation to dictate that the child should be kept in secure accommodation as narrowly defined by s.23(4) of the Children and Young Persons Act, and confined credit for time spent in local authority accommodation to that type of accommodation. In contrast, what s.25 has to say about secure accommodation is of much wider application. It does not set out to dictate where a local authority must place/keep a particular child, but to regulate, in both local authority and non-local authority settings, the circumstances in which a child can be placed/kept in secure accommodation as defined in the section.”

“S.25 has played no direct role in the proceedings in the present case, and the bulk of the argument about it has occurred in writing after the conclusion of the hearing in this court. Nothing that we say about it will conclusively resolve the difficult questions that arise as to its scope and operation, and that is as it should be, because it would be undesirable that final views should be formed, without there having been an opportunity for oral argument. Furthermore, it would be better that such issues as there are about the scope of section 25 should be resolved in a case where the relevant facts have been found, so that the section can be interpreted with reference to a real factual situation.”

“113. The exercise in which we have engaged has, however, been sufficient to persuade us that section 25 is not intended to be widely interpreted, so as to catch all children whose care needs are being met in accommodation where there is a degree of restriction of their liberty, even amounting to a deprivation of liberty. There is much force in the argument that it is upon the accommodation itself that the spotlight should be turned, when determining whether particular accommodation is secure accommodation, rather than upon the attributes of the care of the child in question. This fits with the language used in section 25(1), when read as a whole. It is also consistent with the objective of ensuring that the section is not so widely drawn as to prejudice the local authority’s ability to offer children the care that they need, and it ought to make it more straightforward to apply than would be the case if the issue were dependent upon the features of a child’s individual care regime, so that the child might be found to be in secure accommodation in all manner of settings. 114. A restrained construction of the section is also justified by the fact that, far from being concerned with the routine sort of problems that might require a child’s freedom to be curtailed, the section has a “last resort” quality about it. It is concerned with accommodation which has the features necessary to safeguard a child with a history of absconding who is likely to abscond from any other description of accommodation or to prevent injury where the child in question would be likely to injure himself or others if kept in any other description of accommodation. 115. Of course, training the spotlight on the accommodation itself does not provide a complete answer to the question as to what falls within the definition of secure accommodation. Some secure accommodation will be readily recognisable from the fact that it is approved as such by the Secretary of State, but that is by no means a universal hallmark, as that approval is not needed for all types of secure accommodation. Moreover, given that it is contemplated that secure accommodation might be provided in places such as hospitals, it seems likely that there will not infrequently be more than one purpose of the child being in the accommodation, and there is much to commend Wall J’s approach to such a situation, that is to count within the definition of secure accommodation “designed for or having as its primary purpose” the restriction of liberty. Equally, the section will have to be interpreted in such a way as to allow for situations where only a part of the premises is made over to restricting liberty.”

“The framework of Part III of the Act is structured to cast upon the local authority duties and responsibilities for children in its area and being looked after. The general duty of a local authority to safeguard and promote the child's welfare is not the same as that imposed upon the court in s 1(1) placing welfare as the paramount consideration. I agree with Ward J as to the reasons for that distinction. Among those duties and powers is the right of a local authority to hold a child in secure accommodation for up to 72 hours without a court order. To be enabled to do so the local authority has to surmount the hurdle of the requirements of s 25(1). Only if subs (1)(a)(i) and (ii) or (b) are fulfilled may the local authority place or keep a child in secure accommodation. In coming to the decision to restrict the liberty of a child the local authority will also have regard to their duty to safeguard and promote the welfare of a child who is looked after by them (s 22(3)). The welfare principle is rightly to be considered by the local authority in coming to so serious and Draconian a decision as the restriction upon the liberty of the child. They have the power, however, to place him in secure accommodation if he is likely to injure others rather than himself (s 25(1)(b)). This power may be inconsistent with the concept of the child's welfare being paramount. The jurisdiction of the court is to be found in the same section and the court applies the same criteria in s 25(1) as the local authority. To require the court to have regard to other criteria than those imposed upon the local authority within the same section would, in my view, be inconsistent with the purpose of the section which gives the court the power to authorise the local authority to keep the child in secure accommodation. It is the same power as that exercisable by the local authority in the same way albeit for a much shorter period. By s 25(3) the court has the specific duty to determine whether any relevant criteria are satisfied for keeping a child who may or may not already have been placed by the local authority, in secure accommodation for a period longer than 72 hours. In considering 'any relevant criteria' the court has a similar duty to the local authority to include the welfare of the child concerned. Whether it is a reviewing power, as Ward J suggested, or a general duty to consider the welfare of the child, is a matter of words. No one can doubt that the restriction upon the liberty of a child, generally for his own good (subject to s 25(1)(b)) is a serious step which must be taken only when there is no genuine alternative which would be appropriate and, as The Children Act 1989 Guidance and Regulations, vol 1, Court Orders, para 5.1 sets out, as a last resort. Clearly the welfare of the child is of great importance and must take its place in the relevant criteria. But if at the end of the day the relevant criteria are satisfied there is a mandatory requirement that the court shall make an order authorising the child to be kept in secure accommodation.”

“Section 25 of the Children Act 1989 has taken over in virtually identical terms from s 21A of the Child Care Act 1980, which was inserted into that Act by s 25 of the Criminal Justice Act 1982. This explains a feature of s 25 which might otherwise be puzzling, namely that subs (1) is expressed not as the grant of a power to keep children in secure accommodation if the conditions in paras (a) or (b) are satisfied, but as a restriction on a power which is assumed already to exist.”

“ … the Child Care Act 1980, being concerned with the powers and duties of local authorities, contained no equivalent of s 1 of the Children Act 1989 and it seems to me very unlikely that s 25 of the latter Act was intended to have a different effect from s 21A of the Child Care Act 1980. The function of the court under s 25 is in my view to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child. What form should this control take? Subsection (3) says that the court's duty is to determine whether 'any relevant criteria' are satisfied. What are the relevant criteria? I have already said that in my judgment they do not include the principles in s 1. …. In my judgment the criteria applied by the court must be the same as those applicable to an initial decision by the local authority. These include not only the question of whether para (a) or (b) of s 25(1) is satisfied, but also having regard to the local authority's general duty under s 22(3) to safeguard and promote the welfare of the child, subject to the important qualification in s 22(6)”. 70. Hoffmann LJ set out s.22(6) (recited above) and continued: “This subsection is echoed in para (b) of s 25(1), which allows the condition to be satisfied if the child is likely to injure other persons. Both of these provisions are quite inconsistent with the full application of s 1. It seems to me that the question of whether a decision to keep the child in secure accommodation would be in accordance with these statutory duties imposed upon the local authority must be among the 'relevant criteria' to be considered by the court under s 25(3). It is said that the mandatory language of subs (4) – if the court determines that the criteria are satisfied, it 'shall' make an order – suggests that the criteria must involve giving a yes or no answer to a question of fact rather than a flexible application of general principles. But the mandatory element in subs (4) is to some extent illusory. True, the court shall make an order, but the maximum period for which he may be kept is a matter for the court's discretion. Since there is in practice little difference between an order for a very brief period and no order at all, the use of the word 'shall' does not seem to me to carry much weight. Thus I think that the duty of the court is to put itself in the position of a reasonable local authority and to ask, first, whether the conditions in subs (1) are satisfied and secondly, whether it would be in accordance with the authority's duty to safeguard and promote the welfare of the child (but subject to the qualification in s 22(6)) for the child to be kept in secure accommodation and if so, for how long.”

“this passage in my view indicates that the court, when making a secure accommodation order, must itself decide whether the s.25(1) criteria are met, but in my view it does not indicate that the court should decide the welfare issues relating to the duty to safeguard and promote the welfare of the child. Rather the passage indicates that the court should assess such welfare issues on the basis that the local authority is the decision maker and thus on the basis whether a placement of the child in secure accommodation is within the permissible range of options open to a local authority exercising its duties and functions to promote and safeguard the welfare of the child who is being looked after by it.” 74. In Re SS (Secure Accommodation Order) [2014] EWHC 4436 (Fam), Hayden J, however, cited this passage from Charles J’s judgment in the Knowsley case with this comment: “On the facts of this case, that distinction, if it is correctly drawn by Charles J, between the rationality of the local authority's interpretation of welfare and the Court’s own evaluation of it, is, largely, illusory and, I suspect, always will be, where the liberty of a child is concerned.”

“It would be surprising if section 25 were intended to be interpreted in such a way as to extend this displacement of the court’s welfare role beyond a relatively circumscribed group of children whose circumstances make this unavoidable. Underlining this, it is worth noting that where the position of a child of 16 or 17 is being considered in the Court of Protection under the Mental Capacity Act 2005, welfare is the touchstone, as deprivation of liberty will only be endorsed where it is in the best interests of the child.”

“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (d) the detention of a minor by lawful order for the purpose of educational supervision…. (e) the lawful detention of … persons of unsound mind …” … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” (d) the detention of a minor by lawful order for the purpose of educational supervision…. (e) the lawful detention of … persons of unsound mind …” 80. Article 8 provides: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

“92. …In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question…. 93. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance….”

“Article 5 is not a qualified right and there is no scope for holding that the denial of a person’s liberty engages Article 5 but does not amount to a violation because it serves a legitimate aim and is proportionate and necessary in a democratic society.”

“proportionality is … a concept applied by the European Court of Human Rights. As the court has often stated, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.”

“An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon.” 89. Having cited the relevant UK and Commonwealth case law, in particular the Canadian authority of R v Oakes [1986] 1 SCR 103, Lord Reed identified “a more clearly structured approach” to the assessment of proportionality by domestic courts in this jurisdiction under the Human Rights Act than that adopted by the ECtHR. Under that structured approach, the assessment of proportionality is broken down into four distinct elements (paragraph 74): “(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter …. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”

“Mr Tyler QC acknowledged that an order for secure accommodation will engage Articles 5 and 8 of the ECHR and that, notwithstanding the mandatory wording of s.25(4), which requires that the court which determined that any such criteria are satisfied ‘shall make an order’, any order must be necessary and proportionate to the circumstances. That is plainly right.”

“The ambit within which it is possible, if at all, for the court to exercise discretion is limited as, under s.25(3) [and] s.119(3) [of SSW(W)A 2014], the court must determine whether any of the relevant criteria for keeping a child in secure accommodation are satisfied and, if so, (CA 1989, s.25(4)) the court “shall”, or “must” (SSW(W)A 2014, s.119(4)), make a secure accommodation order (see Re M (Secure Accommodation) [1995] Fam 108).”

“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.”

“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 person’s spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution.”

“The welfare evaluation and the question what, if any, orders are to be made engages Article 8 of the Convention and the proportionality of that intervention must be justified.”

“The process of deciding what order is necessary involves a value judgment about the proportionality of the State's intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court's findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court's not the local authority's, the guardian's or indeed any other party's. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court's evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.”

“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.”