Re M (Secure Accommodation Order)

JurisdictionEngland & Wales
JudgeLORD JUSTICE HOFFMANN,SIR TASKER WATKINS,LORD JUSTICE BUTLER-SLOSS
Judgment Date10 November 1994
Judgment citation (vLex)[1994] EWCA Civ J1110-14
CourtCourt of Appeal (Civil Division)
Docket NumberNo. FAFMI 94/0940/F
Date10 November 1994

[1994] EWCA Civ J1110-14

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

(ON APPEAL FROM THE HIGH COURT)

(FAMILY DIVISION)

(Mr. Justice Ward)

Before: Lord Justice Butler-Sloss Lord Justice Hoffmann and Sir Tasker Watkins

No. FAFMI 94/0940/F

In The Matter of

M (A Minor)

MR. D. HERSHAM (instructed by Birmingham City Council Legal Services) appeared on behalf of the Appellants.

MR. S. COBB appeared on behalf of the Respondent

1

2

LADY JUSTICE Butler-Sloss: This is an appeal by a guardian ad litem from the order of Ward J made on the 1st July 1994. The judge dismissed an appeal from the order of the Birmingham magistrates on the 2nd June 1994 authorising the local authority to keep a child M in secure accommodation for 3 months.

3

M was born on the 5th December 1979 and is now 14. He has a history of being beyond control of his mother; he was first referred to the local authority at the age of nine; he was placed in voluntary care, (now accommodated), by the local authority and placed by it in various children's homes. He has persistently absconded; displayed violent and disruptive behaviour and has taken drugs including solvents, cannabis and LSD. He has been excluded from each school to which he was sent including a special residential school where he committed a serious assault on a teacher. He has appeared before magistrates' courts for various offences including criminal damage, assault, theft and offences involving cars. There has never been a care order.

4

The local authority applied under the provisions of s25 for authority to keep him in secure accommodation and indicated that if the application was granted he would be placed at Aycliffe Centre for six weeks assessment followed by a further six weeks at the same establishment. M was represented by his own lawyers. An application under s25 comes within the definition of specified proceedings in s41 and a guardian ad litem was appointed by the court. He attended the hearing but was unrepresented. The guardian asked for an adjournment or for an interim order to be made since the application had been made, as is the practice, on one day's notice and he had only met the child on the day of the hearing. He did not have an opportunity to compile a report nor to offer his informed recommendations upon the local authority plans for M. He sought an opportunity to make further inquiries. His applications were refused by the magistrates.

5

The findings of fact and the reasons of the magistrates are not in dispute. They were satisfied that M had a history of absconding and was likely to abscond from any other accommodation and that if he absconded his criminal behaviour and drug abuse put him at risk of suffering significant harm. His educational needs were not being met. They carefully applied the criteria set out s1. They made the order authorising the local authority to keep him in secure accommodation for three months.

6

M appealed to the High Court judge against the secure accommodation order. The guardian ad litem appealed the making of a final order and was critical of the lack of opportunity to carry out his duties under s41 and rule11 of the Family Proceedings (Children Act 1989) Rules 1991, since the effect of the final order was to discharge him from the case. But the real purpose of the appeal to the judge and to this court is to try to resolve the issue whether welfare is relevant to a s25 application by a local authority and if so does s1 of the Children Act 1989 apply. We are told that the confusion about the correct approach to a s25 application is causing difficulties for guardians appointed in these applications. We have been told that the appeal to this court by the guardian is funded by the Panel of Guardians and not by legal aid. There is also some confusion of approach by magistrates applying the criteria in s25. The issue has now been considered by at least seven judges of the Family Division and there is a considerable divergence of opinion. The result of this appeal is no longer of any significance to M who is not a party to it and the appeal might be thought to be academic. But it is clear that the issue needs to be considered by this court.

7

The Judge described M as 'a thorough little menace' and dismissed both appeals. In appealing the judge's decision Mr Hershman for the guardian has accepted that criteria set out in s25(1) were established but argued that s1 was to be imported into the criteria to be considered in a s25 application.

8

I turn to the relevant sections of the Children Act 1989. S1 is headed ' Welfare of the Child' and is at the heart of the philosophy of the Act. It states:-

"(1) When a court determines any question with respect to-

(a) the upbringing of a child; or….

(b) ……..

the child's welfare shall be the court's paramount consideration.

(2) In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child."

9

S1(3) sets out a careful and precise checklist of the criteria to which a court shall have regard in dealing with a child application under the Act. The s1(3) requirements are to be read subject to subsection (4) which makes them relevant to applications under Part II or Part IV of the Act.

10

S1(5) states:-

"Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all."

11

S 25 is to be found in Part III of the Act, headed 'Local Authority Support for Children and Families'. The relevant parts of s25 are:-

" Use of accommodation for restricting liberty.

(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ('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."

12

A maximum period of 72 hours in any period of 28 consecutive days is specified for which a local authority may keep a child without the authority of the court by regulation 10 of the Children (Secure Accommodation) Regulations 1991. The maximum period which the court may authorise a local authority to keep a child is three months, (regulation 11). Further periods may be authorised, (regulation 12).

13

By s25(3):-

"It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case."

14

s25(4):-

"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 specify the maximum period for which he may be so kept."

15

The court may also by subsection (5) make interim orders to cover adjournments.

16

The framework of Part III imposes various duties upon the local authority, and in s17(1)(a) the local authority is charged with the general duty to:-

"safeguard and promote the welfare of children within their area who are in need."

17

In s22(3) a similar duty is imposed on a local authority in relation to children looked after by them.

18

I turn now to the decisions of Family Division judges. In Oxfordshire County Council v R [1992] 1 FLR 648, Douglas Brown J held that the principles set out in s1 do apply to a s25 application. He relied upon the Children Act Guidance and Regulations: Volume I: Court Orders, (issued by the Department of Health) which clearly states in paragraph 5.7:-

"It is the role of the court to safeguard the child's welfare from inappropriate or unnecessary use of secure accommodation, by both satisfying itself that those making the application that the statutory criteria in s25(1) or Regulation 6, as appropriate, have been met and by having regard to the provisions and principles of section 1 of the Act. The court must therefore also be satisfied that the order will positively contribute to the child's welfare and must not make an order unless it considers that doing so would be better for the child than making no order at all."

19

Paragraph 5:9 also refers specifically to the duty of the court to have regard to the provisions of s1 in considering its powers under s25. Douglas Brown J expressed the view that the guidance to the court is authoritative and valuable and the court should have regard to it when arriving at a decision whether to authorise secure accommodation. He also held that the court had to have regard to the s1(3) circumstances and use them as a checklist.

20

Connell J in Hereford & Worcester County Council v S [1993] 2 FLR 360 also held that s1 applies to a s25 application and the court must make the welfare of the child its paramount consideration. He held that s1(2) and (5) apply but that the criteria in subsection (3) were not of particular relevance, but were not irrelevant, for instance the ascertainable wishes and feelings of the child. He recognised that a s25 application does not come within s1(4).

21

Booth J in Re W (A Minor) (Secure Accommodation Order) [1993] 1 FLR 360 agreed that the welfare of the child was to be taken into account but held that, if the...

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