The use of accommodation for restricting liberty.
The starting point is Article 5 of the ECHR. Any deprivation of liberty is an infringement of Article 5. This can be lawful if it is necessary, proportionate and authorised by a court.
How do you identify a deprivation of liberty?
By using the Storck criteria as confirmed in 2014 in the case of Cheshire West
- Confinement in a particular restricted place for more than a short period of time
- lack of valid consent
- attribution of responsibility to the State.
There may be an overlap between the jurisdiction of the Court of Protection and the Family Court. Generally if a person is under 18, deprivation of liberty should be dealt with by the Family Court. If a child is over 16 and lacks capacity under section 2 of the Mental Capacity Act, then the Court of Protection is the more appropriate venue. See B v RM MM AM  EWHC 3801 for further consideration about transfer to and from the Court of Protection and Family Court.
Section 25 Children Act 1989
One lawful way to deprive a child of his liberty is by the use of ‘secure accommodation’ under section 25 of the Children Act 1989 and the Children (Secure Accommodation) Regulations 1991. A secure accommodation order involves a deprivation of liberty within Article 5 of the ECHR but it will not be unlawful if it can be justified under one of the exceptions in Article 5(1), which includes ‘the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority’.
If section 25 doesn’t apply then the courts could rely on the inherent jurisdiction. However, If section 25 applies it must be used. See Re X, Re Y  EWHC.
If the child is detained under section 2 of the Mental Health Act, section 25 doesn’t apply.
A child who is being ‘looked after’ by a local authority under a care order or by being provided with accommodation under section 20 of the Children Act cannot be placed or kept in accommodation which has the purpose of restricting the child’s liberty unless the requirements of section 25 are met.
- that the child has a history of running away (‘absconding’)and is likely to run away from accommodation which isn’t secure; and
- if he runs away, he is likely to suffer significant harm; OR
- if he isn’t in secure accommodation, he is likely to injure himself or someone else.
‘likely’ means a real possibility, a possibility that can’t be ignored when looking at the nature and extent of the harm its feared will come to the child. The courts have made it clear there is no need to define ‘absconding’ beyond its every day meaning – see W (A Child) EWCA Civ 804. Short periods of absences, particularly if the child returns of his own accord, may not satisfy this criterion.
If the local authority apply for a secure accommodation order, the court will have to be satisfied that those requirements exist. If the court agrees the criteria are met then it must make a secure accommodation order and must specify the maximum period for which this will be allowed. Usually a child will already be in secure accommodation when the application is made because the court’s authority is not required for the first 72 hours.
This is a serious application and should only be made when there is no alternative – for example, it should never be used to punish a child for running away or being a nuisance.
Duty to inform parents and to keep secure accommodation under review
Regulation 14 provides:
Where a child to whom section 25 of the Act applies is kept in secure accommodation in a community home and it is intended that an application will be made to a court to keep the child in that accommodation, the local authority which are looking after the child shall if practicable inform of that intention as soon as possible–
(a) his parent,
(b) any person who is not a parent of his but who has parental responsibility for him,
(c) the child’s independent visitor, if one has been appointed, and
(d )any other person who that local authority consider should be informed.
Regulation 15 provides:
Each local authority looking after a child in secure accommodation in a community home shall appoint at least three persons, at least one of whom must not be employed by the local authority by or on behalf of which the child is being looked after, who shall review the keeping of the child in such accommodation for the purposes of securing his welfare within one month of the inception of the placement and then at intervals not exceeding three months where the child continues to be kept in such accommodation.
The age of the child
A child who is under 13 years of age cannot be placed in secure accommodation without the prior approval of the Secretary of State UNLESS the child is 12 and has been arrested by the police – see section 38 of the Police and Criminal Evidence Act (PACE).
Once a child is approaching 16 years old, the situation can get more complicated. If a child is over 16 a secure accommodation order can be made if the child is already the subject of a care order OR accommodated by the LA under section 20(3) where there is a duty to provide accommodation if a failure to provide it would lead to the child’s welfare being seriously prejudiced.
But the court cannot make an order with regard to a child who is already 16 and is being accommodated under section 20(5) (accommodation in any community home in order to safeguard or promote his welfare) but it can make an order if the child isn’t yet 16 even if the child’s 16th birthday will happen whilst he is in secure accommodation.
The court has been prepared to make an order with regard to a 17 year old under the court’s inherent jurisdiction given the extraordinary circumstances of that case. See Re B (Secure Accommodation: Inherent Jurisdiction) 
The judge accepted the submission that the inherent jurisdiction of the High Court is theoretically limitless and in circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child (with the exception of the requirement that the child is looked after by the local authority), it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation.
How long can an order last?
If there isn’t a court order a child can only be held in secure accommodation for 72 hours every 28 days: see Children (Secure Accommodation) Regulations 1991, reg. 10. If the court makes an order, the first order can be made for an initial maximum period of 3 months and after that for further periods of up to six months (C (SA) R 1991, regs 11 and 12). Time starts running from the date of the order.
Once the order is made, it can’t be discharged unless the order was made incorrectly. If the child’s circumstances change and the local authority think the secure accommodation order is no longer needed the courts have decided that the way forward is to apply for a writ of habeas corpus under RSC Order 54 . If the parents and the local authority disagree about whether or not it is still needed, the parents can make an application for judicial review.
How do you decide if accommodation is ‘secure’?
A place doesn’t have to be specifically designated ‘secure accommodation’ for it to be so. Each case turns on its own facts. The crucial factor is whether or not the child’s liberty is being restricted. This must be the primary purpose of the accommodation. See Re C (Detention: Medical Treatment)  2 FLR 180. If deprivation of liberty is ‘incidental’ then use the inherent jurisdiction.
Accommodation must be approved by the Secretary of State under Reg 3.
How will the child make his wishes known to the court?
Under section 25(6) the court can’t consider making a secure accommodation order if a child is not legally represented in court, unless the child decides not to apply for legal representation.
However, the court should usually appoint a guardian to represent the child under section 41(1) of the Children Act. The guardian will speak to the child and will give instructions to a solicitor; this will allow the court to say that the child is legally represented.
The guardian will recommend to the court what he thinks is in the child’s best interest, but the child’s welfare is NOT the ‘paramount consideration’ in these proceedings.
Rule 12.14 (3) of the Family Procedure Rules 2010 gives the court power to exclude a child who wants to attend court if it is in their interest to do so and they are represented although Rule 12.14(4) requires the court to give the guardian, the child’s solicitor and child, if of sufficient understanding, the opportunity to make representations about the child’s attendance.
When deciding whether or not a child should come to court, the starting point should be an evaluation of the consequences of attending or not attending upon the child’s welfare taking into account the following factors. See Re K (A Child) 
- the age and level of understanding of the child
- nature and strength of the child’s wishes
- the child’s emotional and psychological state
- the impact of influence from others
- the matters to be discussed
- practical and logistical considerations – how far would child have to travel?
- the impact on proceedings – is the child likely to need to be restrained in court? If so that is usually a sufficient ground to refuse to allow the child to attend.
Can an English court make an order to put a child in secure accommodation in Scotland?
A shortage of available secure accommodation in England lead to some children being placed in Scotland. This caused some problems about jurisdiction. Just because an order is lawfully made in England, does not mean it automatically is lawful in Scotland. See the judgment of the President of the Family Division in Re X, Re Y  EWHC 2271 (Fam), para 1.
This problem has now been dealt with by The Children and Social Work Act 2017, Schedule 1 which simply amends section 25 of the Children Act to extend it to Scotland.
- This helpful article from April 2015 by Alex Laing offers a step by step guide for practiioners who are considering whether to apply section 25 or the inherent jurisdiction.
- Alex also considers the circumstances in which a child can be placed in secure accommodation once he/she is 16 years old.
- This article by Belinda Schwehr deals with the law more generally on the deprivation of the liberty of children, examining other statutory justifications for a deprivation of liberty such as the Mental Health Act 1983; the youth remand provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; or the custodial sentencing provisions of the Power of Criminal Courts (Sentencing) Act 2000.
- Secure placements for children: how local authorities use them. A report from the Department of Education in December 2016.