A Local Authority v B's father et al
Summary
On the heals of the Supreme Court's deprivation of liberty ruling in Re D (A Child) [2019] UKSC 42, this is an important decision in childcare law. It concerned an application for a secure accommodation order under s.25 of the Children Act 1989 in respect of a 15-year-old girl. The judgment is given in the context of a notable crisis in the provision of secure accommodation in England and Wales, with a significant shortfall in the availability of approved secure accommodation. This is coupled with a growing number of children now viewed as deprived of liberty following the Re D decision.
The issues and conclusions were as follows:
- What is the meaning of "secure accommodation" in s.25? It means "accommodation designed for, or having as its primary purpose, the restriction of liberty… [and] 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." (para 59)
- What are the relevant criteria for making a secure accommodation order under s.25? The criteria are not limited to the conditions in s.25(1) and include whether the proposed placement would safeguard and promote the child's welfare.
- What part does the evaluation of welfare play in the court's decision? Their welfare is not paramount but is an important element in the criteria (para 72).
- 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? Yes, it is one of the relevant criteria which must be satisfied before a secure accommodation order is made (paras 88, 93).
- 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?
- 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?
- 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?
- 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?
- Does the proposed order safeguard and promote the child's welfare?
- Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?
It was noted that s.25 does not cover all the circumstances in which it may be necessary to deprive a child of their liberty and that a judge exercising the inherent jurisdiction of the court has the power to authorise detention. Thus:
- "101 … 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."
This decision clarifies the relevant criteria for secure accommodation orders and recognises the hinterland of the inherent jurisdiction for authorising detention where those criteria are not met. The relevance of proportionality was very much a key issue in this case, in particular whether proportionality is a part of Article 5 ECHR. It may be worth noting that in Re D, the Supreme Court was considering proportionality in a slightly different context. The question there was whether the right to liberty under Article 5 should be traded off against Article 8 to allow parental rights to be respected.
