Re W
| Jurisdiction | England & Wales |
| Judge | Macur LJ |
| Judgment Date | 28 July 2016 |
| Neutral Citation | [2016] EWCA Civ 804 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2016/1670 |
| Date | 28 July 2016 |
[2016] EWCA Civ 804
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ORDER OF
MR JUSTICE KEEHAN [2016] EWHC 1139 (Fam)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
and
Lady Justice Macur
Case No: B4/2016/1670
Frances Judd QC and Alex Forbes (instructed by Tustain Jones) for the Appellant
Will Tyler QC and Paula Thomas (instructed by A Local Authority) for the Respondent Local Authority
Barbara Connolly QC for the Respondent
Hearing dates: 7 July 2016
These are the court's reasons for the order made on 7 th July 2016 dismissing the appeal.
This is an appeal against the making of a secure accommodation order pursuant to s 25 of the Children Act 1989 in relation to W, aged 17years 8 months at the time of the application. It was argued on her behalf that the court has no jurisdiction to make such an order without her consent to being accommodated by the local authority and/or consent to being securely accommodated. In the alternative it was argued that the judge wrongly interpreted the term "absconded" and, in any event, was wrong to make a secure accommodation order for a term of three months, since the deprivation of her liberty was a disproportionate response to the unruly, but not unusual, behaviour of a rebellious teenager and there were other options, short of secure accommodation, which would adequately safeguard W's wellbeing.
The secure accommodation order was made on 14 April 2016 and ceased to have effect on 14 July 2016, unless extended on the intended application of the local authority until W's 18 th birthday on 7 August 2016. However, we were of the firm view that this appeal should not be regarded as 'academic' since the liberty of W was in issue, no matter how short the length of time remaining in which she can be subject to a secure accommodation order. Quite apart from this, we were told that there is an inconsistency in the approach of local authorities to s 25 applications in respect of 16 to 18-year old individuals by reason of differences in the interpretation of the provisions of s 20 of the 1989 Act, which issues have been argued in this appeal.
As we were unanimous in our view that the appeal should be dismissed we announced our decision at the conclusion of the hearing, considering that it was in the best interests of W to inform her, and those under a duty to accommodate her, of the same as soon as possible. The appeal was dismissed. These are the reasons why we decided to affirm the order of the lower court and hence dismiss the appeal which sought to set it aside.
As was the case in the court below, W was represented by Miss Judd QC and Mr Forbes. Mr Tyler QC together with Miss Thomas, appeared on behalf of the relevant local authority. The Children's Guardian was represented at first instance, but the attendance of her counsel in the appeal was excused since the Guardian supported the making of a secure accommodation order in the court below, and adopted the local authority's arguments in response to the appeal.
There was no significant dispute of fact. Miss Judd QC, accepted that W is "a child in need" and that Keehan J had sufficient evidence before him in order to make a finding that W was the victim of child sex exploitation. In summary, W has been beyond her mother's control, probably since the age of 9, but certainly from the age of 14. However, despite the significant risks to her emotional welfare and physical safety, she remained living in the family home until the age of 15 when she was "accommodated" by the local authority; it follows that this would be pursuant to s 20 (1) of the Children Act 1989, which provides:
"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of
…
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care".
Since that time, W became a "looked after" child and has been placed at several residential care units to no good effect. Her behaviour has been consistently disruptive, abusive and sexually promiscuous. She has been drunk and under the influence of illegal drugs and has dismissed any attempt to address or ameliorate the associated risks of her disinhibited behaviour. She has had no regard for the rules of any institution where she has resided and has constantly absented herself at all hours to pursue her own ends, often involving unknown men in unknown locations, after which she has sometimes been observed to be in possession of significant amounts of money. In these circumstances it is almost impossible to conceive that the local children's services authority would not adjudge her to be at risk of continuing significant harm.
When W became 16 we consider that these facts would have mandated the relevant local authority to provide accommodation for W pursuant to s 20(3) since:
"(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of 16 and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation". (Our underlining.)
However, Miss Judd QC did not concede that W's circumstances, as indicated in paragraphs 5 and 6 above, necessarily identified the basis upon which the children's services authority was providing her with "accommodation" since, she submitted, the local authority could also have accommodated W in the same unit, pursuant to s 20(5) of the Act which provides:
"(5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under the age of twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare." (Our underlining)
This distinction is significant. Regulation 5(2) of the Children (Secure Accommodation) Regulations 1991/150 excludes application being made for a secure accommodation order in respect of children accommodated pursuant to s 20(5) of the Act.
Miss Judd QC submitted that W can only be "accommodated" by the local authority if she consents to the same, and by inference that she therefore determines the basis upon which she became, or continues to be, "accommodated". She relied upon s 20(6), which requires that a local authority
"Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare —
(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain."
and on s 20(11), which enables a child of sixteen to veto their carer's objection to them being provided with accommodation by the local authority.
Mr Tyler QC pointed out that neither provision requires the child to give consent prior to being "accommodated". He drew considerable support from the leading speech of Baroness Hale in R (on the application of M) v London Borough of Hammersmith and Fulham [2008] UKH 14 at [17], in which she states that the child's voice is:
"…not a decisive one. Before providing accommodation, the local authority must, so far as...
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