Re as (Secure Accommodation Order)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Year | 1999 |
| Date | 1999 |
| Court | Family Division |
Secure accommodation – Application for order – Procedure – Child not informed of application and unable to give instructions to legal representatives – Stipendiary magistrate making order on basis of submissions and without hearing evidence – Whether procedure flawed – Whether order should be quashed.
The local authority wished to exercise the power under s 25 of the Children Act 1989 to place a child in secure accommodation. As he was under 13 the local authority sought and obtained the approval of the Secretary of State under reg 4 of the Children (Secure Accommodation) Regulations 1991 for him to be placed in such accommodation. Having received that approval the local authority were permitted, under reg 10(1), to place the child in secure accommodation for up to 72 hours without recourse to the court. However, instead adopting that course of action, the local authority applied to a family proceedings court for an interim secure accommodation order. The child was not notified of the proceedings nor was a guardian ad litem appointed. At the hearing before a stipendiary magistrate the child was legally represented but his counsel and solicitor had been unable to take instructions from him as he had not been notified of the hearing. The stipendiary magistrate granted an interim secure accommodation order on the basis of submissions by those representing the mother, the local authority, and the child and without hearing evidence. The child appealed.
Held – The making of a secure accommodation order was a deprivation of liberty for a child and for that reason it was specifically provided by s 25(6) of the Children Act 1989 that no court should exercise the powers conferred by that section unless the child had refused or rejected an invitation to apply for legal aid. It was implicit in that provision that, in order to be effective, legal representation must involve the taking of instructions. In the present case the procedure adopted by the stipendiary magistrate was fundamentally flawed as the child had not been informed of the application nor given an opportunity to give instructions to his legal representatives; and the deficit was compounded by the failure to appoint a guardian ad litem. A further fundamental error was that no sworn evidence had been heard by the stipendiary magistrate. It was essential that in a case such as a secure accommodation application there should be clear recordings of facts found by the court and in order to reach those...
To continue reading
Request your trial
-
London Borough of Barking and Dagenham v SS
...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 "threshol......
-
Re P (Application for Secure Accommodation Order)
...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 "threshol......
-
Re AK (secure accommodation order)
...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 B (a minor) (secure accommodation order), Re[1995] 1 FCR 142, [1995] 1 WLR 232, [1994] 2 FLR 707, CA. C v Humberside Council......
- A City Council v T, J and K
-
Secure Accommodation
...refused to apply. If a child is not notified of the application for the secure order, the matter may not be heard, as set out in Re AS [1999] 1 FLR 103, in which the court decided that natural justice required notification to the child of the application. However, in the later case of Re C ......