R AR, a child (by his litigation Friend MP) v The London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Andrews,Lord Justice Davis |
| Judgment Date | 16 March 2020 |
| Neutral Citation | [2020] EWHC 622 (Admin) |
| Docket Number | Case No: CO/1324/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 2020 |
[2020] EWHC 622 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Mrs Justice Andrews DBE
Case No: CO/1324/2019
and
Caoilfhionn Gallagher QC and Sam Jacobs (instructed by Just for Kids Law) for the Claimant
Ashley Underwood QC (instructed by London Borough of Waltham Forest Legal Department) for the Defendant
Oliver Williamson (instructed by City of London professional Standards) for London Councils
Beatrice Collier (instructed by Weightmans) for the Metropolitan Police Commissioner
Galina Ward (instructed by Government Legal Department) for the Secretary of State for Education (written submissions only)
Hearing date: 26 February 2020
Judgment Approved
INTRODUCTION
This is a challenge to an alleged systemic failure by the defendant local authority (“Waltham Forest”) to provide adequate secure accommodation for children who are at risk of being detained in police cells in circumstances where normal local authority accommodation would be unsuitable to meet the risks they pose to the general public.
It is alleged that in breach of its statutory duty under s.21(2)(b) of the Children Act 1989, Waltham Forest failed to have in place a reasonable system to enable it to respond to requests made at short notice by the police under s.38(6) of the Police and Criminal Evidence Act 1984 (“PACE”) for secure accommodation to be provided for a detained child, until he or she can be brought to court. This would mostly involve an overnight stay.
For the reasons set out in this judgment I am not persuaded that Waltham Forest is in breach of statutory duty as alleged, and accordingly I would dismiss this claim.
THE LEGAL BACKGROUND
S.38(6) of PACE provides that:
“ Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies – (a) that, by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so; or (b) in the case of an arrested juvenile who has attained the age of 12 years, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him, secure that the arrested juvenile is moved to local authority accommodation.”
“ Local authority accommodation” is defined by s.38(6A) as “ accommodation provided by or on behalf of the local authority (within the meaning of the Children Act 1989)” and “secure accommodation” is defined as “accommodation provided for the purpose of restricting liberty”.
Section 21(2) of the Children Act 1989 provides that:
“ Every local authority shall receive, and provide accommodation for, children
…..
(b) whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984.”
The police are not obliged to approach the local authority for the area covering the police station where the child happens to be at the time of charge. They will often request the provision of accommodation by the local authority for the area where the child usually resides.
If the child to whom s.38(6) of PACE applies is already under the care of the local authority under s.20 of the Children Act 1989 (“a looked after child”), s.25 of that Act, as modified by regulation 6 of the Children (Secure Accommodation) Regulations 1991, limits the use of secure accommodation as follows:
“ Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation in England or Scotland provided for the purpose of restricting liberty (“secure accommodation”) unless it appears that any accommodation other than that provided for the purpose of restricting liberty is inappropriate because –
a) the child is likely to abscond from such other accommodation, or
b) the child is likely to injure himself or other people if he is kept in any such other accommodation”
The nature and scope of the obligations arising under these provisions were considered by the Court of Appeal in the case of R (M) v Gateshead Metropolitan Borough Council [2006] EWCA Civ 221 (“ Gateshead”). In that case, a child charged with a serious criminal offence was detained overnight at a police station before being produced at court the next morning. It was alleged that the failure by the local authority to provide the child (a female) with secure accommodation when the police requested it under s.38(6) of PACE, in the early hours of the morning, was a breach of the statutory duty imposed on it by s.21(2)(b) of the Children Act.
The court rejected the argument that s.21(2)(b) imposed an absolute duty on the local authority to provide secure accommodation whenever it is requested by a custody officer under s.38(6) of PACE. It held that whilst the local authority has an absolute obligation to provide accommodation if requested to do so, it has no obligation to provide, or even to use its best endeavours to provide, secure accommodation in cases where the custody officer is of the opinion that keeping the child in non-secure accommodation would not be adequate to protect the public from serious harm from them.
Dyson LJ observed at [40] that Parliament must be taken to have been aware that local authorities have limited resources and that a decision to place a child in secure accommodation should not be taken lightly. He cited a passage in guidance issued by the Department of Health in 1991 to the effect that secure accommodation must be a “last resort” in the sense that all else must first have been comprehensively considered and rejected.
Dyson LJ said that in performing its duty to provide accommodation under s.21(2)(b) the local authority has a discretionary power to provide secure accommodation where that is requested. The duty must be exercised in a manner that promotes the policy and objectives of the statute, namely, that children should not be detained in police cells if that is at all possible. It is therefore incumbent on all local authorities to have in place a reasonable system to enable them to respond to requests for secure accommodation under s.38(6).
The policy of keeping children out of police custody is consistent with international legal standards to which we were helpfully referred by Ms Gallagher QC in the course of argument, including the provisions of Article 37(b) and (c) of the UN Convention on the Rights of the Child and Rule 13 of the UN Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”).
On the evidence in Gateshead it was held that the arrangements that the council had in place were lawful, despite the fact that the nearest provider of PACE secure accommodation for girls was in Hull, over 100 miles away, which was so far away as to preclude the use of it unless the request under s.38(6) was made over a weekend. Dyson LJ gave the following warning at [48]:
“ the court should be slow to strike down as unlawful arrangements that have been made by local authorities. In my view, they should do so only if satisfied that an authority has made no arrangements at all, so that they can never provide secure accommodation when it is requested, or where the arrangements that have been made are ones that could not have been made by a reasonable authority, mindful of the need to avoid having children detained in police cells if at all possible.”
It is contended by the claimant that this is precisely the scenario in Waltham Forest.
FACTUAL BACKGROUND
The claimant, AR, was born on 27 May 2002 and was 16 1/2 years old at the relevant time. He was accommodated by Waltham Forest under an arrangement pursuant to s.20(1) of the Children Act 1989. On the afternoon of 27 December 2018, police went to the care home where AR was placed, to speak to him about an attempted street robbery of two schoolboys at knifepoint on their way to school, which had occurred on 2 November 2018. It was alleged that the attacker had attempted to stab one of the victims and had only been prevented from doing so and causing serious harm, by being overpowered. The police conducted a body search of AR and discovered a samurai sword hidden in the back of his trousers. He was arrested for possession of an offensive weapon and taken to Lewisham police station.
Despite his age, AR already had convictions for three robberies, one theft, and three counts of possession of a bladed article, and at the time of his arrest he was under investigation for two other offences. He had a history of regular non-compliance with a curfew of 23.00 which the care home had put in place. Just over a week before his arrest, a hunting knife with a 10-inch blade had been found under his bed. At the time when it was discovered, the police had taken no further action and asked the care home to dispose of the knife, but this had not yet happened when he was arrested. The knife matched the description of the one that had been used in the attempted robbery (which had occurred a few weeks before it was found in AR's room). After AR's arrest it was handed over by the care home to the police at their request.
On arrival at the police station at around 14.17, AR was read his rights and requested a solicitor. He was detained in a police cell until his solicitor arrived and he was able to have a conference...
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