London Borough of Barking and Dagenham v SS
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Hayden |
| Judgment Date | 03 December 2014 |
| Neutral Citation | [2014] EWHC 4436 (Fam) |
| Docket Number | Case No. ZE14C00018 |
| Court | Family Division |
| Date | 03 December 2014 |
[2014] EWHC 4436 (Fam)
Mr. Justice Hayden
(In Open Court)
Case No. ZE14C00018
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Ms. D. Lewis (instructed by the Local Authority Legal Department) appeared on behalf of the Applicant.
Mr. R. Jones appeared on behalf of the Children's Guardian..
This is an application made by the London Borough of Barking and Dagenham for a secure accommodation order pursuant to s.25 of the Children Act 1989. That provision reads as follows:
"Use of accommodation for restricting liberty
(1) Subject to the following provisions of this section, 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 —
(a) that —
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons."
The provision goes on, at subsection (3), to provide that:
"It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied (inaudible)"
And (4):
"If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept."
There has been some confusion in this case by counsel as to the scope of section 25. There need be none. The core principles seem to me clear, though worth restating:
(1) It is the essence of 'curtailment of liberty' rather than any particular, or designated, establishment which underpins these orders (see Metropolitan Borough Council v DB [1997] 1 FLR 567);
(2) Secure accommodation is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights incorporated into domestic legislation by the Human Rights Act 1998 (see Re K (Secure Accommodation Order: Right to liberty) [2001] 1 FLR 526 CP);
(3) The two limbs of s.25(1)(a) and (b) are to be read disjunctively and not conjunctively; that is to say either the criteria under (a) or (b) is sufficient. Both are not required (see Re D (Secure Accommodation Order No.1 [1997] 1 FLR 197);
(4) It remains important to emphasise that there should always be a clear record of facts, when making an order under these provisions. Sworn evidence will always be necessary (see Re AS (Secure Accommodation Order) [1999] 1 FLR 103);
(5) When assessing the phrase "likely to abscond", the test is that applicable to the s.31 Children Act criteria, the so-called "threshold test". (see Charles J in S v Knowsley Borough Council [2004] 2 FLR 716);
(6) However, 'likely' in both limbs of that section must now, like the s.31 criteria themselves, be determined by reference to the clarification given by the Supreme Court in Re B [2013] UKSC 33 and Re SB (Children) [2009] UKSC 17, bearing in mind that it is not a permissible approach to find likelihood of future harm in the absence of findings predicated on actual fact;
(7) The court does not have power to make an order under s.25 in respect of a young person over the age of 16, but the order may be made prior to a child becoming 16, even if it extends beyond the child's 16 th birthday; (Re G (See Accommodation Order) 2001 1FLR 259
(8) Section 25 is not a provision to which the paramountcy principle applies. Section 25 is under the framework of Part 3 of the Children Act 1989 and, therefore, concerned with the general powers and duties of a local authority in relation to children within its area. The general duty of a local authority which applies to promote and safeguard the welfare of the child is not the same as the paramountcy principle. Determining welfare, though, will be illuminated, as always, by reference to the s.1(3) criteria, the welfare checklist. In these cases 'welfare' will always weigh very heavily.
I should add that Charles J observed in S v Knowsley Borough Council (supra) at p.730, para.45, as follows:
"As I have mentioned, 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 a child; rather the passages indicate 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 a 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 a child who is being looked after by it. Such a child may be one who is being provided with accommodation by the local authority or, as in this case, a child in respect of whom a care order has been made."
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.
I am here concerned with SS. Though there has been dispute about her age, it is now common ground between the advocates and their respective parties that SS is in her 15 th year. The local authority's application is for a Secure Accommodation order, and SS has already been accommodated in secure accommodation, now, for 4 1/2 weeks.
In October this year, Cobb J, found that SS is 'habitually resident' in the United Kingdom. It is accepted that she was brought to the United Kingdom against her will and, whilst here, was being groomed for both sexual and financial exploitation. She was arrested by the police on 22 nd April 2014 and placed under their protection. Care proceedings were commenced on 29 th April 2014 and SS has been the subject of a series of interim care orders, under which aegis she still continues.
SS was previously accommodated at a children's home, but, in July of this year, was allocated a foster placement. During the course of this hearing, I have heard much of that foster placement and, in particular, SS's relationship with her foster carer. Secure Accommodation is a very limited resource. It is sparsely scattered across the country and there are very few units designated solely for welfare purposes: Most establishments cater for young offenders as well. I have been told the integration of these two groups, though it may be counter intuitive to the lawyer, can sometimes lead to the development of mutually positive relationships. This is merely anecdotal and I will say no more about it, I am simply not in a position to judge.
SS sadly, in the light of her background experiences, has only two people on whom she can rely with any confidence. The first is her social worker, a Mr. Omoriyekewmen, and the second her foster carer. Hundreds of miles away from both of them, in this secure unit, she has been able to see her social worker only once, and unable to see her foster carer at all. I find it, I am bound to say, profoundly troubling that children who are accommodated in secure units for their protection, frequently find themselves so far away from those who care for them. In the context of a criminal offender, great care would be taken to keep prisoners, particularly vulnerable youngsters, near their families wherever possible, recognising the importance of the support. This sad consequence, though, arises from the fact that there are very few units actually available.
Happily, and though this is no part of her duties and for which she gains no remuneration, the foster carer has spent extended periods of every day speaking to SS on the telephone; this is, to my mind, a very significant feature of this case.
Whilst with her foster carer, SS was progressing well, and all who have commented upon it consider that relationship to have been a good and supportive one. However, without any apparent warning, on 17 th October this year, SS absconded. She was, by chance, located by the police a few days later in a motor vehicle driven by a male in his mid-30s and one other female, who, I have been told in evidence, is a sex worker. The car was stopped as part...
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