Hereford and Worcester County Council v S
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
CONNELL, J
Child in care – secure accommodation – application under s 25 of the Children Act 1989 – whether existence of other statutory criteria for restricting liberty of child prevented court from hearing application for secure accommodation order – court required to have regard to welfare of child – power to adjourn and make interim order.
Secure accommodation – application in respect of child in care – issue not exclusively within province of local authority – court entitled to consider matters relating to alternative accommodation.
A child, now aged 16, had been placed in the care of the local authority in 1988. There were problems of self-harm and absconding and she had spent extended periods in secure accommodation. On 10 October 1992 she inflicted injury on herself by cutting her wrists. On 11 October 1992 she was detained in hospital under s 2 of the Mental Health Act 1983. On 12 October she was apparently granted leave of absence from the hospital under s 17 of the 1983 Act. On 15 October 1992 the local authority applied to a family proceedings court for a secure accommodation order. The power to make a secure accommodation order was contained in s 25 of the Children Act 1989. By subs (1) of that section it was provided, inter alia, that such an order might not be made unless the child had a history of absconding and, if he absconded, was likely to suffer significant harm, or, if kept in other accommodation was likely to injure himself. Regulation 5(1) of the Children (Secure Accommodation) Regulations 1991 provided:
"Section 25 of the [Children Act 1989] shall not apply to a child who is detained under any provision of the Mental Health Act 1983 or in respect of whom an order has been made under s.53 of the Children and Young Persons Act 1933 (punishment of certain grave crimes)."
By reg 5(2), s 25 of the 1989 Act also did not apply to a person accommodated under s 20(5) of the Act or a child who was kept away from home under a child assessment order made under s 43.
At the hearing on 15 October 1992 the magistrates refused to read the statements the local authority wished to file but heard submissions from the advocates. The magistrates held that they could not hear the application as the child was currently detained under the
Mental Health Act 1983.
On 16 October 1992 the child was discharged under s 23 of the 1983 Act. On 19 October 1992 the local authority again applied for a secure accommodation order for the maximum period of three months. After reading and hearing the evidence, which included evidence from the guardian ad litem recommending an order for a period of less than three months, the magistrates adjourned the hearing and made an interim secure accommodation order for one month. The magistrates did not inform the parties that they were considering an adjournment. In their reasons they stated that they found the grounds in s 25(1) of the 1989 Act proved but, as the proceedings had been brought at short notice, the child's welfare would best be served by allowing the guardian ad litem to make further inquiries.
The local authority appealed against the decisions of the family proceedings court on 15 and 19 October 1992.
Held – (1) Regulation 5(1) of the Children (Secure Accommodation) Regulations 1991 only disapplied s 25 of the Children Act 1989 if the child was detained under the Mental Health Act 1983. As, in this case, the child was not actually being so detained, or there was an issue as to whether she was so detained, the magistrates had erred in not hearing the application on 15 October 1992. Further, s 25 of the 1989 Act was only one of a number of provisions enabling the liberty of a child to be curtailed. These included s 2 of the Mental Health Act 1983, s 53 of the Children and Young Persons Act 1933, and ss 20(5) and 43 of the 1989 Act. The fact that the criteria under any of those provisions had been satisfied did not preclude the court from considering whether an order under s 25 of the 1989 Act should be made. Even if some other statutory criteria applied, the court should consider the evidence and decide what, if any, order it should make. For this reason also the magistrates had erred in not hearing the application 15 October 1992.
(2) On an application under s 25 of the 1989 Act, once the court was satisfied that the criteria in s 25(1) were satisfied, it was required to consider the matters set out in s 1 of the Act: the child's welfare was paramount: subs (1); delay was likely to prejudice the welfare of the child: subs (2); and whether making an order was better for the child than no order: subs (5). As an application under s 25 was not one of the applications referred to in s 1(4), the matters set out in s 1(3), referred to as the welfare checklist, were not of particular relevance though they were not irrelevant. In the present case it was clear from the magistrates' reasons that, at the hearing on 19 October 1992, they had taken into account all relevant matters under s 1. Further, the court should authorize a secure placement only for so long as was necessary and unavoidable. This was an important factor. In this case, the guardian ad litem, who was under a duty to advise the court of the options available to the court, had indicated that she would wish to make further inquiries and had recommended an order for a shorter period than three months. It was unfortunate that the magistrates had not informed the parties that they were considering an adjournment. However, having regard to the evidence of the guardian ad litem, it was clear that the magistrates were entitled to grant an adjournment when they came to give their adjudication. Although subs (4) of s 25 stated that if the court was satisfied that the criteria were satisfied "it shall make an order", subs (5) empowered the court to adjourn. It was important that subss (4) and (5) were read together and wrong to read subs (4) on its own and say the court was obliged to make a secure accommodation order. In the circumstances the decision of the magistrates to adjourn and make an interim order was entirely appropriate.
(3) On an application under s 25 of the 1989 Act the court was entitled to consider matters related to alternative placement of the child. Placing a child in secure accommodation was not a matter exclusively within the province of the local authority.
They could not do so unless they could satisfy a court of the relevant statutory criteria, especially those in s 25(1). By carrying out its duties under that section the court was not usurping the powers of the local authority but was carrying out the function required of the court by the statute.
Re CN (A Minor) (Care Proceedings)[1992] 2 FCR 401 distinguished.
Statutory provisions referred to:Children Act 1989, ss 1, 20(5), 25 and 43.
Children and Young Persons Act 1933, s 53.
Children (Secure Accommodation) Regulations 1991, regs 5 and 10.
Family Proceedings Courts (Children Act 1989) Rules 1991, rr 11, 17 and 21.
Mental Health Act 1983, ss 2, 17 and 23.
Cases referred to:CN (A Minor) (Care Proceedings), Re[1992] 2 FCR 401.
JR v Oxfordshire County Council[1992] 2 FCR 310.
AppealAppeal from Redditch family proceedings court.
Christopher Adams for the local authority.
Julia Macur for the child and guardian ad litem.
MR JUSTICE CONNELL.This is an appeal by the appellants, the Hereford and Worcester County Council, in respect of two decisions made by the magistrates' court sitting at Redditch during October 1992.
Each of the appeals concerns a girl who was born on 29 February 1976 and, accordingly, she is now 16 years and 8½ months old.
During the course of these proceedings she has been represented by a guardian ad litem and Miss Macur has appeared on her behalf during the appeal before me.
Her mother is a respondent to this appeal, has been present during the course of the appeal, but has taken no active part in it, and her father has not attended the appeal hearing.
As I say, the appeal is by the county council against the two decisions of the Redditch magistrates given first of all on 15 October 1992, and secondly, on 19 October 1992. Bearing in mind the fact that a minor is involved in this appeal I give the usual direction as to anonymity should there be any subsequent report of this decision.
The background history to the matter is as follows: the child was the subject of an interim care order which was granted to the local authority on 24 November 1988. Thereafter she ceased to live with her mother. On 21 November 1989 she was made the subject of a full care order, in effect, as the legislation now stands, under s 31 of the Children Act 1989.
Since that date, she has spent extended periods in secure accommodation and has on a number of occasions caused injury to herself. The aim of the local authority has always been to rehabilitate the child into the community, but the
problems which have most regularly occurred, unhappily, have related to self-harm and to her absconding on a number of occasions.
At the end of December 1991, the child was returned for a period to her home having been in secure accommodation, and on 3 January 1992, the secure accommodation order that was then in existence was revoked. Unhappily, thereafter there were further incidents of self-inflicted injuries and of the child taking an overdose of tablets and of taking insulin.
On 29 June 1992 the child was placed with a Mrs H under what is described as a teenage placement. Whilst in that placement in July 1992 she was arrested and charged with offences of burglary and on 3 September 1992 before the Redditch justices in respect of eight charges of burglary and two charges of criminal damage, she was made the subject of a conditional discharge.
That same month, on 21 September 1992, the child was arrested, the allegation being that she had committed arson together with another girl, the arson being committed, it was said, in respect of a barn and its contents, the total...
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