Re AK (secure accommodation order)
| Jurisdiction | England & Wales |
| Judgment Date | 28 May 1999 |
Secure accommodation – Application for secure accommodation order – Child residing with parents when application made – Order sought on basis child satisfying statutory criteria relating to risk of absconding or risk of injuring self or others – Whether statutory criteria requiring that child already in secure accommodation when application made.
On 11 November 1998 the authority applied for an interim secure accommodation order under art 44 of Children (Northern Ireland) Order 1995 (the equivalent to s 25 of the Children Act 1989) in respect of the 15-year-old child who was the subject of a care order. At the time of the application the child was residing with her parents whilst on bail, and the grounds of the application were that she was likely to abscond and harm herself or others and that if kept in other accommodation she was likely to injure herself or other people. Under the 1995 Order the authority were entitled to place the child in secure accommodation for a maximum period of 72 hours where the injury or absconding criteria were met, beyond which time they had to apply to the court for a secure accommodation order. A preliminary point of law arose as to whether, before such an order could be made, it was necessary that the child was already in secure accommodation.
Held – (1) Although art 44 of the 1995 Order (and s 25 of the 1989 Act) did not specify that the child should be in secure accommodation when the secure accommodation order was sought, in ordinary applications one would expect the child to be in secure accommodation at the time the court application was made as a result of the circumstances which satisfied the absconding or injury criteria. Nevertheless, there might be very exceptional circumstances in practice justifying an application for court authorisation when the child was not in secure accommodation, and the legislation required a degree of flexibility. In deciding whether the circumstances were so exceptional, the court would have to take into account the welfare of the child, the necessity, if practicable, for notice to be given to interested parties, and the right to legal representation. However, exceptional circumstances would not cover the situation where the child had absconded and was not amenable because he had to be available to instruct legal representation, or where a place in secure accommodation was not available.
(2) The original application in the present case was for an interim secure accommodation order and the 1995 Order did not provide for such an application, although on an application for a secure accommodation order the court could, for good reason, decide to make an interim order.
Per curiam. (1) When a secure accommodation order is made the court should do so on admissible evidence which is either given orally or admitted by the parties during the court proceedings. The court should state the facts on which it finds and give short reasons for its decision, which should be recorded.
(2) An application for secure accommodation is not susceptible of transfer under the Children (Allocation of Proceedings) Order (Northern Ireland) 1996, SR 1996/300, unless there are already proceedings pending in a county court or the High Court arising out of the same circumstances.
Cases referred to in judgmentAS (secure accommodation order), Re[1999] 2 FCR 749, [1999] 1 FLR 103.
B (a minor) (secure accommodation order), Re[1995] 1 FCR 142, [1995] 1 WLR 232, [1994] 2 FLR 707, CA.
C v Humberside Council[1995] 1 FCR 110, [1994] 2 FLR 759.
M (secure accommodation order), Re[1995] 2 FCR 373, [1995] Fam 108, [1995] 3 All ER 407, [1995] 2 WLR 302, [1995] 1 FLR 418, CA.
W v North Yorkshire CC[1993] 1 FCR 693; sub nom Re W (a minor) (secure accommodation order) [1993] 1 FLR 692.
Preliminary issueA preliminary point of law arose on the hearing of an application, made on 11 November 1998 to the Family Care Centre sitting at Londonderry by Foyle Health and Social Services Trust and transferred to the High Court by the Recorder of Londonderry by order dated 19 November 1998, for an interim secure accommodation order in respect of a child the subject of a care order. The facts are set out in the judgment.
Henry Toner (instructed by Brangam Bagnall & Co) for the Trust.
Siobhan O’Hagan (instructed by John Fahy & Co) for the child.
Gemma Loughran (instructed by Meehan Murphy & Co) for the guardian ad litem agency.
Cur adv vult
28 May 1999. The following judgment was delivered.
HIGGINS J.On 11 November 1998 Foyle Health and Social Services Trust (the Trust) applied to the Family Care Centre sitting at Londonderry for an interim secure accommodation order under art 44 of the Children (Northern Ireland) Order 1995, SI 1995/755 in respect of AK, a female born on 14 November 1982. AK is the subject of a care order deemed to have been made under the 1995 Order. She is also the subject of ongoing criminal proceedings at, inter alia, the Crown Court
sitting at Omagh. At the time of the application she was residing with her parents having been released on bail from Maghaberry prison a short time previously where she had been held as a remand prisoner together with her sisters.
The grounds upon which the application for the interim secure accommodation order were made are set out in Form C17:
‘(i) the child has a history of absconding and is likely to abscond from any other accommodation and if the child absconds she is likely to suffer significant harm;
(ii) if the child is kept in other accommodation the child is likely to injure herself or other people.’
By order dated 19 November 1998 the Recorder of Londonderry transferred the application to the High Court and the reasons therefore are set out in a ruling attached to the transfer order. I need not set out these reasons for the purposes of this judgment
When the matter first came before the High Court counsel on behalf on the applicant informed the court that a preliminary point of law required adjudication. The proceedings were adjourned to enable other interested parties to be notified. When the preliminary point came on for hearing counsel on behalf of the Trust stated the preliminary point in the following terms:
‘Is it a prerequisite under Article 44 of the Children (Northern Ireland) Order 1995 that the child is actually placed in secure accommodation prior to and at the time of a court considering the making of an order under Article 44(4)?’
This question is not on all fours with the issues identified by the Recorder of Londonderry, but it is one question at the root of certain difficulties experienced in relation to applications for secure accommodation orders under art 44 of the 1995 Order which came into force on 4 November 1996. Many of the difficulties have arisen, the court has been informed, because only one building in Northern Ireland has accommodation of the type which can be described as secure. This building is the Lakewood Centre outside Bangor (formerly Rathgael Training School) which has accommodation for eight children. As a result, the court was informed, a queue for secure accommodation places has developed and as well other difficulties have been experienced relating to the acceptance of certain children at Lakewood Centre. Thus, inter alia, an issue has arisen whether a court should entertain applications for secure accommodation orders where the child has not yet been placed in secure accommodation because no place is available.
The relevant legislation is set out in art 44 of the 1995 Order and the Children (Secure Accommodation) Regulations (Northern Ireland) 1996, SR 1996/487:
‘44 Secure accommodation.—(1) In this Article “secure accommodation” means accommodation provided for the purpose of restricting liberty.
(2) Subject to paragraphs (3) to (10), a child who is being looked after by an authority may not be placed, and, if placed, may not be kept, in 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.
(3) The Department may by regulations—(a) specify a maximum period—(i) beyond which a child may not be kept in secure accommodation without the authority of the court; and (ii) for which the court may authorise a child to be kept in secure accommodation; (b) empower the court to authorise a child to be kept in secure accommodation for such further period as the regulations may specify; and (c) provide that an application to the court under this Article shall be made only by an authority.
(4) A court hearing an application under this Article shall determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.
(5) 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.
(6) On any adjournment of the hearing of an application under this Article, a court may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation.
(7) No court shall exercise the powers conferred by this Article in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for legal aid and having had the opportunity to do so, he refused or failed to apply.’
Paragraph (1) defines secure accommodation as accommodation provided for the purpose of restricting liberty. It does not define the type of building or design which would represent accommodation which is secure. Rather it defines secure accommodation by its purpose. Therefore different types of accommodation may qualify as secure accommodation where the accommodation is provided for the purpose of...
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