Re K (A Child) (Secure Accommodation Order: Right to Liberty)

CourtCourt of Appeal
Docket NumberCase No: B1/2000/3183/A
Judgment Date15 Nov 2000
JurisdictionEngland & Wales
Neutral Citation[2000] EWCA Civ J1115-13

[2000] EWCA Civ J1115-13

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LIVERPOOL COUNTY COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

The President Lord Justice Thorpe and

Lord Justice Judge

Case No: B1/2000/3183/A

'w' Borough Council
Applicant
and
D K
First Respondent
and
D J K
Second Respondent
and
A K (a Minor)
Third Respondent
and
David Delahunty (guardian Ad Litem)
Fourth Respondent

Mr E. Ryder QC and Miss C. Grundy (instructed by 'W' Borough Council for the Appellant)

Miss M. de Haas QC and Mr S. Crabtree (instructed by Messrs Herwald Seddon for the Third Respondent)

Mr N. Garnham (for the Secretary of State)

Mr P. Sales and Mr N. Garnham (for the Lord Chancellor)

The First and Second Respondents and the Guardian ad Litem were not represented.

DAME ELIZABETH BUTLER –SLOSS PRESIDENT:

1

AK is 15. He was born on the 6 th July 1985. His manifestly difficult problems come to be considered by the Court of Appeal in the context of an interim care order to the local authority and a series of secure accommodation orders as a result of which he has lived since the 4 th December 1998 at a secure unit. The appeals is brought by AK through his own legal team against the most recent secure accommodation order made by His Honour Judge Urquhart on the 30 th June 2000. That order was made to run until the 16 th October 2000, the first day on which we began to hear this appeal. Miss de Haas QC for AK raised on the appeal the issue that section 25 of the Children Act 1989 was incompatible with Article 5 of the European Convention on Human Rights, made part of English domestic law by the Human Rights Act 1998. She sought a certificate of incompatibility under section 4(2). The Secretary of State for Health was, therefore, joined as a party under section 5(2). AK also claimed damages under section 8 and the Lord Chancellor was joined under section 9(4). At short notice Mr Garnham attended on behalf of the Secretary of State and Mr Sales and Mr Garnham on behalf of the Lord Chancellor. We are very grateful to them for their written and oral arguments, largely without sight of the papers. The guardian ad litem was not represented but supported the local authority. The parents were not represented and did not attend, but by letter indicated their support for the local authority.

2

The second main issue before us was the application by the local authority for a new secure accommodation order, in order to keep AK at his present secure unit beyond the 16 th October. This application had been before Wilson J in Manchester and very sensibly it was agreed that this court should decide the application after hearing the appeal. We gave AK leave to appeal out of time; gave leave to the local authority to adduce further evidence and made a secure accommodation order to run until the end of the appeal. We reserved our decision.

The history

3

There is a long history of the difficulties experienced by AK and by those looking after him starting long before he went to school. His parents married in 1983, separated in early 1996 and divorced in August 1996. He has an elder brother D, born in 1983, who was for some years in care. On AK's first day at nursery in 1987, aged 2, he was permanently excluded as a result of his destructive behaviour. He was referred to an educationalist at the age of 4 because of his aggressive behaviour and was described by the psychologist as being over-active to the point of being chaotic, deliberately destructive and using provocative and abusive language. He was assessed as having moderate learning difficulties and was admitted to a special school. The local authority became involved in 1991 as it became increasingly difficult for his parents to manage his behaviour. He was aggressive and physically and verbally abusive to staff and children. On occasions he damaged school property. From an early age he was fascinated by fire and behaved in a sexualised way. Respite care was arranged on a number of occasions to help his family.

4

In 1993, At the age of 7, he was reported as displaying sexualised behaviour towards a 6 year old girl. The same year he attempted to set fire to his home. He spent longer and longer periods accommodated by the local authority in residential care with the consent of his parents. His behaviour deteriorated and there were regular incidents of sexualised and aggressive behaviour. In 1994, at the age of 8, He went to a residential school and spent his holidays at home. In 1996 there was a marked deterioration in his behaviour. There were incidents of sexualised behaviour including masturbation and exposing himself in public. He was disruptive and in September 1996 he assaulted a female member of staff.

5

In December 1996 the Adolescent Forensic Service at hospital P carried out a psychiatric assessment. They considered that he did not have a mental illness or impairment as defined under the Mental Health Act 1983, but exhibited symptoms consistent with a diagnosis of Hyperkinetic Conduct Disorder. The report said that:

" we believe that [A] presents a serious risk to himself and others as is demonstrated by his recent offences, the continuation of his fire setting behaviour, the increasing aggressive behaviour coupled with his ability to target vulnerable members of staff and the inability to safely contain [A] despite intensive effort at his current placement.

Our concern would include the current tendency for those caring for [A], both professional and personal to minimise the risk he presents perhaps due to his young age and pre-pubertal nature. This risk is likely to increase with puberty, increasing physical size and strength."

6

The report recommended a placement in secure accommodation. In January 1997, the local authority planning committee recommended a secure placement. Since AK was only 11 years old the approval of the Secretary of State was required. This was given in April 1997. Other residential placements were tried and his behaviour improved. A further psychiatric assessment was carried out in May 1998 which concluded that:

"At present he continues to present with all the risk behaviours identified at our initial assessment. These risks appear at present to be contained within his current placement. However our concern would be that as [A] develops in physical strength and size these behaviours will become more difficult to contain. Consideration must be given to constructing a longer term strategy to both recognise and react to this need."

7

Between October and December 1998 there was a marked deterioration in AK's behaviour. He was charged with two offences of indecent assault on a girl at his placement. He was moved and moved again. He was involved in two incidents of fire setting. He assaulted two female members of staff and was charged with indecent assault. In November 1998 he was aggressive and assaulted a male member of staff. This catalogue of incidents and AK's general behaviour caused the local authority to place him in his present secure unit and apply, for the first time, for a secure accommodation order. A guardian ad litem was appointed. An interim order was made on the 7 th December 1998 for four weeks.

8

AK had a further psychiatric assessment which concluded that he was not suffering from a psychiatric illness. He did, however, have complex social and educational needs and mental health problems. He continued to present a significant risk to others through sexual aggression, even within a secure setting. AK's father was unhappy for AK to remain in secure accommodation and, with the possibility of withdrawal of consent by one parent, the local authority obtained an interim care order, as a precaution, on the 4 th January 1999. In February full psychiatric assessment confirmed the earlier reports, including sexually inappropriate behaviour, sexual assaults, destructible and disorganised behaviour. It was thought that he needed a structured environment which could manage his violent and sexually aggressive behaviour and that his sexually inappropriate behaviour was likely to respond to a behavioural therapy programme. Further applications for secure accommodation orders were not opposed by the guardian nor by either parent. AK, however, appealed against the refusal of the Family Proceedings Court to allow him to attend the section 25 hearing. Wall J allowed the appeal and, since the transfer of the case to the county court on the 28 th July 1999, AK has attended the hearings. In the county court his case has been heard throughout by Judge Urquhart who has clearly taken a great deal of trouble over AK. He held one hearing in the secure unit and went round the unit with AK. He has seen and talked to AK at the court hearings and has established a rapport with him. AK likes him and has confidence in him. I very much hope that, in due course, when the plans for AK settle down, future applications concerning AK will continue to be heard by Judge Urquhart.

9

A clinical psychologist assessed AK in April 1999 when he was 13 years and 8 months old. He was assessed as having general, moderate learning difficulties with a cognitive age of approximately 7 years. AK continued to exhibit worrying behaviour which caused the principal of the secure unit to set out in a letter, dated the 17 th June 1999, his concerns about AK's behaviour and sexual fantasies. He reported that AK was acting out sexual fantasies even in the controlled and highly supervised environment in which he was placed. He posed a considerable risk to others. The principal of the unit then said:

"The identification of babies as victims, the anger he feels during abusive acts, the lack...

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