M (A Child) (Secure Accommodation)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,OR,Lord Justice Peter Jackson |
| Judgment Date | 06 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2707 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/2719 |
| Date | 06 December 2018 |
[2018] EWCA Civ 2707
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL AND FAMILY JUSTICE CENTRE
HHJ Sharpe
SA17C01718
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
and
Lord Justice Peter Jackson
Case No: B4/2018/2719
Simon Stephenson (instructed by Duncan Lewis Solicitors) for the Appellant
Piers Pressdee QC (instructed by Pembrokeshire County Council and CAFCASS Cymru) for the Local Authority and Guardian
Hearing date: 29 November 2018
A secure accommodation order permits, but does not compel, a local authority to keep a child in secure accommodation. A court hearing an application for such an order under Section 25 of the Children Act 1989 or Section 119 of the Social Services and Well-being (Wales) Act 2014 in respect of a child who is being looked after by a local authority must determine whether the criteria for keeping a child in secure accommodation are satisfied and, if they are, shall authorise the child to be kept in secure accommodation for a stated period not exceeding the maximum period specified by regulations.
Section 25(1), contains the two alternative criteria for making an order:
EITHER
(a) that the child has a history of absconding and is likely to abscond from any other description of accommodation AND that 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.
It is established that in this context likelihood means a possibility that cannot sensibly be ignored ( Re G (Secure Accommodation Order) [2001] 1 FLR 884 at 896).
Absconding means something more than trivial disobedient absence. It may connote an element of escape from an imposed regime ( Re W [2016] EWCA Civ 804 at [21]) but it is not limited by consideration of the intentions of the individual concerned. Judges can be relied upon to give the word its ordinary meaning and recognise behaviour that can be properly described as absconding in all the circumstances of the individual case.
The maximum periods are specified in the Children (Secure Accommodation) Regulations 1991. Regulations 11 and 12 provide for an initial maximum period of 3 months and thereafter maximum periods of up to 6 months. In specifying the period of authorisation, the court must consider carefully the purpose to be achieved and assess as best it can the length of time which that is likely to take; the order should be for no longer than is necessary and the court should explain its reasoning ( Re W (Secure Accommodation Order) [1993] 1 FLR 692 at 697).
In Re M (Secure Accommodation Order) [1995] Fam 108, this court confirmed that the welfare paramountcy principle in Section 1 does not apply to a Section 25 application, although a local authority should consider the child's welfare when deciding whether to use the power granted by the court to restrict a child's liberty. The function of the court under Section 25 is rather to control the exercise of the local authority's power than to exercise an independent jurisdiction in the best interests of the child.
I turn to the relevance of proportionality to these decisions. Section 25(4) states that where the criteria are satisfied the court “shall” make an order. In Re M (above), a case before the Human Rights Act 1998, this court described the requirement as mandatory. In Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526, Section 25 was found to be compatible with Article 5 ECHR. More recently, in Re SS (Secure Accommodation Order) [2014] EWHC 4436 (Fam) at [26], Hayden J declined to make a secure accommodation order on proportionality grounds, and in Re W (2016, above) at [24] this court accepted as “plainly right” an uncontested submission that any order must be necessary and proportionate. However, in T (A Child) [2018] EWCA (Civ) 2136 at [16], Sir Andrew McFarlane P noted that the ambit within which it is possible, if at all, for the court to exercise discretion where the qualifying criteria are met is limited. There is accordingly a range of authority on the place of proportionality in an application for a secure accommodation order. The central question is perhaps whether the stringent criteria within Section 25 itself amount to an inbuilt proportionality check, or whether, notwithstanding the statutory wording, something more is required. This will be a question with consequences in a very small number of cases only, and this case is not one of them. Accordingly, it is not the occasion for resolving the issue of principle, and for now all that can be said is that proportionality should not become a surrogate for a general welfare assessment of the kind disapproved in Re M.
Against that background, I turn to the present appeal, which we heard and dismissed on 29 November. It is brought by a young person to whom I shall refer as Emma (not her real name). She is 15 1/2. On 9 November 2018, HHJ Sharpe made a care order and a secure accommodation order for six months. This appeal relates only to the latter order.
Briefly, Emma's home has been with her mother and younger sister. However, at the age of 13 she became subject to a child protection plan due to being beyond parental control in that she would leave home, use drink and drugs and place herself at severe and repeated risk of sexual harm. During 2017, her behaviour fluctuated and she was at times placed in foster care or residential accommodation. In February 2018, she was diagnosed by a forensic psychiatrist as having a conduct disorder. She continued to engage in seriously risky behaviour, and on 5 April 2018 HHJ Sharpe authorised a deprivation of liberty at a residential placement under the inherent jurisdiction of the...
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Rochaun Archer v The Commissioner of Police of the Metropolis
...be satisfied in order to authorise such restrictions of liberty have been described as “stringent criteria” (see In re M (A Child) [2018] EWCA Civ 2707 at [7]). There are detailed criteria, time limits, and safeguards and requirements imposed, alongside those set out in the Children (Secur......
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Secure Accommodation
...at any time (sections 20(8) and (9) and 25(9) of the CA 1989). In the recent case of Re M (A Child) (Secure Accommodation) [2018] EWCA Civ 2707, Peter Jackson LJ stated (at [4]) that ‘absconding’ for the purposes of the criteria set out, means something more than trivial disobedient absence......