Secure Accommodation Orders

Depriving Children of their Liberty

This is the text of a talk I gave for White Paper Conferences in February 2021 looking at the unresolved issues, both legal and practical, around deprivation of liberty orders for children of all ages.

The importance of freedom of movement.

Your freedom to come and go as you wish is very important and has been a protected right for centuries. From the ancient common law remedy of ‘habeus corpus’ we now look to Article 5 of the ECHR  – everyone has the right to liberty and security of person. Being deprived of your liberty can only be lawful:

  • if you consent to it, or someone else is allowed to consent on your behalf, or
  • there is an existing legal framework that allows it, or
  • you apply to the court for a declaration that its lawful. 

Deprivation of liberty means that someone is under continuous supervision and control and is not permitted to leave. It doesn’t make any difference if the conditions are pleasant or necessary. It is defined by using the criteria set out in the case of Storck v Germany 43 EHRR 96, as confirmed in 2014 in the case of  Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16

  • Confinement in a particular restricted place for more than a short period of time
  • lack of valid consent
  • attribution of responsibility to the State.

An obvious example of lawful deprivation of liberty is sending someone to prison after conviction of a criminal offence. 

The current legal situation regarding depriving children of their liberty is a complex mixture of common law, the inherent jurisdiction, statute and European law. Although a child is defined as a person between 0-18, children aged 16 and over are treated differently to younger children. There is also a forthcoming Supreme Court decision on the use of the inherent jurisdiction, which is discussed below. 

We need to look carefully at the reasons behind any decision to restrict a child’s liberty in order to identify the correct route to ensure that any detention is lawful. Sadly for family practitioners, The Children Act 1989 does not specifically address mental disorder, does not provide specific powers to enforce treatment, and does not provide specific safeguards for the rights of the detained patient. Family lawyers therefore may have to come out of their comfort zones when dealing with a case where a child needs to be deprived of their liberty.  It may be that the family court is not the right place for such decisions to be made. 

Why might a child be deprived of their liberty?

There are a variety of reasons why a decision is made to deprive a child of liberty. 

Consent and exercise of parental responsibility. 

In some circumstances, you can consent to your own confinement. Regarding children, parents may exercise ‘parental responsibility’ which means they are able to offer their own consent when a child cannot. The younger the child the less likely it is that the acceptable ‘zone of parental authority’ will be controversial  – for example, when parents consent to a five year old receiving medical treatment. However, it has long been accepted by the courts that parental responsibility is a ‘dwindling right’ that diminishes as the child grows in age and understanding. Parental responsibility must also be exercised in the best interest of the child. 

Once a child reaches the age of 16, they are treated differently to younger children – for example, they are presumed to be able to offer consent to medical treatment as if they were an adult. But what if a 16 year old does not have the mental capacity to make decisions? Can a parent then consent to a deprivation of liberty on their behalf? The short answer is no.

The Supreme Court in D (A Child) [2019] UKSC 42 (26 September 2019) held that a parent could not consent to deprivation of liberty once a child was 16, even if the child lacked capacity. Logically this should extend to younger children and require careful examination of what falls within the normal ‘zone of parental control’. The key question was Do the restrictions fall within normal parental control for a child of this age or do they not? If they did not, Article 5 was engaged and the parent could not consent on the child’s behalf. 

However, as an indication of the complexity in this area and reasonable scope for disagreement, the court was split 3:2. The majority of those in support agreed that deprivation of liberty involved a fundamental human right and it could never be within the boundary of acceptable exercise of parental responsibility to deny a child a fundamental human right. Further, the court restated the principle set out in Cheshire West, that the living arrangements of the mentally disabled had to be compared with those of people who did not have the disabilities which they had. They were entitled to the same human rights, including the right to liberty, as any other human being. Even if they were deprived of their liberty for the best possible motives, they were still entitled to the protection of Article 5 so it could be independently ascertained that the arrangements were in fact in their best interests. 

But, its interesting to consider one of the minority judgments. At para 151 Lord Carnwath said this:

Later in [Lady Hale’s] judgment (para 48) she reinforces that view by equating deprivation of liberty with other “fundamental human rights” such as the right to life or freedom from torture. She argues that it would be a “startling proposition” that it lies within the scope of parental responsibility to authorise violation of such rights. I say at once, with respect, that I am not persuaded that such comparisons are fair or helpful. D’s parents were not authorising the state to commit torture or anything comparable to it. They were doing what they could, and what any conscientious parent would do, to advance his best interests by authorising the treatment on which all the authorities were agreed. That this involved a degree of confinement was an incidental but necessary part of that treatment, and no more than that. On the President’s view, with which I agree, they were not “authorising a violation of his rights”, but rather exercising their parental responsibility in a way which ensured that there was no such violation.

So it looks as if there is scope for that argument to be potentially revived. 

Necessary treatment for mental illness 

A child can be compelled to accept treatment for a mental disorder under the Mental Health Act 1983.or consent to their own informal admission to hospital for treatment section 131(2). Detention under the Mental Health Act provides the child with a number of important safeguards, such as the right to appeal against detention and a duty to ensure an age-appropriate environment (s 131A).

Necessary protection for the mentally incapacitated 

The Mental Capacity Act 2005 applies only to children aged 16 or over. The Mental Capacity Amendment Act 2019 inserted a new Schedule to the MCA which sets out a new administrative scheme for the authorisation of deprivation of liberty in order to enable care or treatment of a person who can’t consent. Under Schedule AA1, a ‘responsible body’ will be able to authorise arrangements giving rise to a deprivation of a person’s liberty in any setting, if satisfied that the necessary conditions are met, including that the arrangements are necessary and proportionate to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person. 

Once an authorisation has been given, there are a number of safeguards put in place for the person which include regular reviews of the authorisation by the responsible body or care home and the right to challenge the authorisation before the Court of Protection. 

Detention by the police 

See section 38 of Police and Criminal Evidence Act 1984. The custody officer must secure that any arrested child is moved to local authority accommodation unless it is not practical to do so, or once the child has reached the age of 12, that no secure accommodation is available and keeping him in other local authority accommodation would not be adequate to protect the public from serious harm. 

Secure accommodation under the Children Act 1989

Use of section 25 of the Children Act 1989 and the accompanying regulations is a lawful way of depriving a child of liberty but it has proved not to be a ‘straightforward’ statutory provision. The inherent jurisdiction can be used to ‘fill the gaps’ but the courts are very clear – If section 25 applies it must be used as it provides statutory safeguards for the child.  See Re X, Re Y [2016] EWHC. 

This route has to be endorsed by court order; the consent of any party is not relevant – Re T (A child) (Secure Accommodation Order) [2018] EWCA Civ 2136.

The Regulations set out various safeguards for the child, such as ensuring that parents are informed and that the deprivation of liberty is regularly reviewed. 

In essence, section 25 operates to make deprivation of liberty lawful if the child is subject to a care order or is ‘looked after’ by the LA under section 20 of the Children Act 1989 and:

  • the child has a history of absconding and is likely to abscond from any other description of accommodation; and
  • if the child absconds they are likely to suffer significant harm; or
  • if not placed in secure accommodation, the child is likely to injure themselves or another person. 

Relevance of the child’s age

A child younger than 13 can only be placed in secure accommodation if this is authorised by the Secretary of State under Regulation 4 –  unless the child is 12 and has been arrested by the police. 

If the child is 16 or older 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 [2010] EWHC 3801 for further consideration about transfer to and from the Court of Protection and Family Court.

There has been some confusion over whether or not a secure accommodation order can be made once a child reaches the age of 16 and this may depend on whether the child is accommodated under section 20(3) or section 20(5). 

An alternative route could be to rely on the court’s inherent jurisdiction which is theoretically limitless. 

Scotland and Wales

Wales now has a separate regime for secure accommodation under s.119 of the Social Services and Wellbeing (Wales) Act 2014 (“SSW(W) 2014”), although the provisions are substantially the same as under s.25 of the Children Act 1989.

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 [2016] 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.

An application of last resort

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. The courts have confirmed it is an order of ‘last resort’ 

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. 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 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) [2011]

  • 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.

Issues to consider when applying for a secure accommodation order

There have been many practical difficulties in applications for secure accommodation and the courts have had to look very carefully about what ‘secure accommodation’ means, the relevant criteria under section 25 that justify the order, to what extent the child’s welfare is considered in the balance and the over arching demands of proportionality. 

The complex interplay of various statutory provisions must then be seen in the context of the nationwide shortage of accommodation which is designated as ‘secure’ to meet the necessary statutory requirements.

The case of  B (Secure Accommodation Order) [2019] EWCA Civ 2025, tackled these questions head on. The court was very concerned that the lack of designated secure accommodation meant that the court was increasingly being asked to use its inherent jurisdiction to make it lawful to deprive a child of their liberty.

The court took a wide ranging review of available case law and considered submissions from the Association of Lawyers for children and set out the questions that a court must ask and answer before making a secure accommodation order. See para 98. 

(1) Is the child being “looked after” by a local authority under section 20 of the Children Act 1989 or, alternatively, does the child fall within one of the other categories specified in regulation 7 (which are children accommodated by health authorities, NHS trusts, local educational authorities and children in residential care homes or nursing homes). 

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

However, this did not end the confusion of many practitioners and required further guidance from the President of the Family Division in February 2020. This guidance focused on the discussion by the Court of Appeal about the definition of ‘secure accommodation’ which was found to be “any ‘accommodation designed for, or having as its primary purpose, the restriction of liberty’”

However, the President was clear that this does not mean that an application to place a child in such a unit must be determined via a s 25 secure accommodation application and he referred back to the questions asked and answered in the Court of Appeal judgment, stating that question 4 was the ‘clincher’. 

“It follows that, although an unregistered and/or unapproved secure placement may come within the definition of ‘secure accommodation’ within s 25, that accommodation cannot satisfy item (4) in the ‘relevant criteria’ with the result that a s 25 order cannot be made to authorise placement in that unit. In such a case any court approval would need to be sought under the inherent jurisdiction.

The bottom line is that Re B does NOT signal a need for the court to use s 25 to process applications for deprivation of liberty in a unit which is unapproved by the Secretary of State as ‘secure accommodation’. Such applications should continue to be considered under the inherent jurisdiction. If the s 25 criteria are met, then, of course, s 25 should be used.

The inherent jurisdiction 

If section 25 doesn’t apply then the courts could rely on the inherent jurisdiction which is in theory a ‘limitless’ power of the High Court to make decisions if there is an apparent ‘gap’ in the statute law.

The case of Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 (Fam). Mr Justice Cobb provided a clear overview of how the inherent jurisdiction is used to authorise a deprivation of liberty of a vulnerable adult.

The court has found there is jurisdiction 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) [2013] 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.

However, A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) points out there are problems when there is no care order as the inherent jurisdiction used when a child is 17 would have the effect of ‘grant[ing] authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme’ 

The court considered that Re B ought to be treated with caution.

First, the requirements of s 100(2) do not appear to have been the subject of detailed argument before the court. Second, whilst the court appears to have entertained doubts about whether the child could be said to be accommodated at [9] to [14], and to have perceived the significance of an answer in the negative, no final conclusion appears to have been reached by the court on that issue. Third, and importantly, before coming to its decision the court does not appear to have been referred to the decision of the Court of Appeal in Re E (A Child). Within this context, I am satisfied that there are reasons to doubt that Re B (Secure Accommodation: Inherent Jurisdiction)(No 1) was correctly decided

In re T (A Child) (Secure Accommodation) [2018] EWCA Civ 2136, the court was clear that it is fundamentally unsatisfactory that many young people were being placed in secure accommodation outside the statutory scheme in units that by definition had not been approved by the secretary of state as secure children’s homes. This case has been appealed to the Supreme Court who heard the appeal in October 2020 and we are waiting for the judgment. 

The appellant, T, was a 15-year-old child who was subject to a care order. The local authority wished to place T in secure accommodation but there were no places available in any registered secure children’s homes. So the LA applied to the High Court for orders under its inherent jurisdiction authorising T’s placement in non-statutory accommodation. T had consented to the restrictions on her liberty in the placements sought and submitted that the orders restricting her liberty were unnecessary. The Court of Appeal found that consent was not a relevant issue for the exercise of the inherent jurisdiction. T appealed to the Supreme Court, wishing to be recognised as capable of consenting in law. 

The Supreme Court was asked to consider the following issues:

  • In circumstances where insufficient places are available in registered secure children’s homes, is the exercise of the inherent jurisdiction to authorise a child’s placement in unregistered secure accommodation lawful?
  • If it is, what legal test should the courts apply when determining whether to exercise the inherent jurisdiction?
  • Is a child’s consent to the confinement of any relevance when determining whether to exercise the inherent jurisdiction?

So watch this space!

EDIT JULY 30th 2021 – Judgment handed down

The Supreme Court dismissed the appeal and determined that use of the inherent jurisdiction IS permissible but expressed grave concerns about its use to fill gaps in the child protection system, due to lack of resources. The child’s consent or lack of it did not determine the decision about whether a deprivation of liberty was permissible. Placement of a child in unregistered or unregulated accommodation must be a temporary solution, only if no other alternative available and reflects a ‘scandalous lack’ of provision. The full judgment is here

Children’s homes and unregulated placements

The difficulties and tensions in relying on the inherent jurisdiction in this area, is the extent to which this may undermine a statutory or regulatory framework to make sure that accommodation provided for children by the state is fit for purpose and that the child’s rights are protected. As a general rule, the more an area of law is controlled by statute and regulations, the more extreme the circumstances must be to justify the use of the inherent jurisdiction.

The Supreme Court noted the distinctions between ‘secure accommodation’ ‘children’s homes’ and ‘unregulated placements’

Secure accommodation is a secure children’s home, designed and developed as such and approved by the Secretary of State for such use (the court comment at para 134 that it is ‘hoped’ no such homes would be in use without approval of the Secretary of State but that it was theoretically possible). This involves a ‘locked setting’ with a ‘custodial complexion’ – i.e. locked doors and windows, perimeter fences, high quality digital CCTV.

A children’s home is defined as a place that provides care and accommodation wholly or mainly for children (excluding hospitals and most schools). Under the Care Standards Act 2000 and accompanying regulations, children’s homes must be registered and it can be a criminal offence under section 11 of the Act to run an unregistered children’s home

The Supreme Court found that this does not relieve the court from authorising placing a child in an unregistered placement if a failure to do so risks breach article 2 of the ECHR (the right to life) where there must be absolutely no alternative and the child or someone else is likely to come to grave harm if the court does not act (para 145). This must not be seen as the court authorising a criminal act. Practice Guidance issued by the President of the Family Division in 2019 made it clear that if a child is placed in an unregistered children’s home then steps must be taken immediately to secure registration and keep the court informed of the registration process, which the court must oversee. If registration is refused and the home continues to operate, this does raise a risk of criminal prosecution.

An unregulated placement is one that is NOT a children’s home, as it doesn’t meet the definition of providing accommodation wholly or mainly for children – for example, a caravan or outward bound centre. The court was doubtful that such places could ever be suitable to deprive a child of liberty.

Regulation 27 of the Care Standard Act Registration Regulations 2010 puts a duty on a LA who is placing a child in unregulated accommodation to be satisfied that the accommodation is suitable. A new Reg 27A comes into force in September 2021 which limits the circumstances in which the LA can place a child under 16 in unregulated accommodation.

Section 22C(6)(d) deals with placement of children by the LA when they cannot be safely or practically placed with a parent or other person with PR. The LA then have to find a placement that it considers ‘the most appropriate’. This can be with a friend or relative, a foster carer, a registered children’s home OR subject to section 22D ‘placement in accordance with other arrangements which comply with any regulations made for the purposes of this section’.

Section 22D confirms that a LA can make arrangements to place a child in an ‘appropriate placement’ when it is necessary and required as a matter of urgency.

Regulation 27A provides that a LA may only place a child under 16 in accommodation in England ‘in accordance with’ other arrangements under section 22C(6)(d) of the Children Act 1989 where the accommodation is in a

  • a care home, defined by section 105(1) of the Children Act 1989 as the same definition as the Care Standards Act – an establishment is therefore a care home if it provides accommodation and nursing/personal care for persons who are or have been ill, who have or have had a mental disorder, who are disabled or infirm and who are or have been dependent on alcohol or drugs
  • a hospital (defined by section 275(1) of National Health Service Act 2006
  • a residential family centre as defined in section 4(2) of Care Standards Act
  • A school, defined by section 4 of the Education Act 1996
  • a holiday scheme for disabled children, as defined in Reg 2(1) of the Residential Holiday Schemes for Disabled Children (England) Regulations 2013

To summarise; the court will need to know, if a child can’t be placed with family or foster carers:

  • is the proposed placement is a children’s home – which must be registered or immediately applying for registration
  • OR one of the establishments set out above in Regulation 27A for a child under 16
  • OR if no children’s home or regulation 27A placement is available for a child under 16, if its urgent and necessary then the court may authorise a placement outside the regulations, in order not to be in breach of article 2 ECHR (right to life).

However, it is clear that no family court can override the operation of the criminal law so it remains to be seen what kind of risk of criminal prosecution would be faced by those operating unregulated placements. Hopefully a defence of necessity would be available. It is therefore very important that LA follow the Supreme Court guidance about what evidence the court needs to authorise an unregulated placement under the inherent jurisdiction.

See paras 155 and 172: the court must have evidence about

  • If the placement is a children’s home, is it registered? If not registered, application must be made without delay and the court will oversee this process. If registration is refused but child remains in the placement then risk of criminal prosecution is more likely.
  • the provider of the service has confirmed it can meet the child’s needs
  • the steps the LA are taking to assure itself that the premises and those who work there can give safe and suitable care
  • the proposed regime
  • justification of why proposed regime is necessary and proportionate
  • the child’s views

Lord Stephens says at para 178:

I agree with Lady Black that recourse to the inherent jurisdiction in the fact of this scandalous lack of provision should be a temporary measure… I add my name to the list of judges who have called attention to this issue which is a scandal containing all the ingredients for a tragedy

See also the case of Tameside MBC v L (Unavailability of Regulated Therapeutic Placement) [2021] EWHC 1814 (Fam) where the court decided that it remains open to the High Court to use the inherent jurisdiction to authorise the deprivation of liberty of a child under 16, where the child will be living in a placement which is outside the statutory or regulatory scheme, provided that everyone followed the President’s Guidance of November 2019 entitled Placements in unregistered children’s homes in England or unregistered care home services in Wales and the addendum thereto dated December 2020. 

The court set out the relevant principles to be applied in such cases: 

  • It remains open to the High Court to authorise under its inherent jurisdiction the deprivation of liberty of a child under the age of 16 where the placement in which the restrictions that are the subject of that authorisation will be applied is prohibited by the terms of the Care Planning, Placement and Case Review (England) Regulations 2010 as amended. 
  • In deciding whether to grant a declaration authorising the deprivation of liberty, the existence or absence of conditions of imperative necessity will fall to be considered in the context of the best interests analysis that the court is required to undertake when determining the application for a declaration on the particular facts of the case. 
  • Whilst each case will turn on its own facts, the absence of conditions of imperative necessity will make it difficult for the court to conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child under the age of 16 in an unregulated placement is in that child’s best interests in circumstances where the regulations render such a placement unlawful. 
  • It is not appropriate to define what may constitute imperative considerations of necessity. Again, each case must be decided on its own facts. 
  • The court must ensure the rigorous application of the terms of the President’s Guidance, which will include the need to monitor the progress of the application for registration in accordance with the Guidance. Where registration is not achieved, the court must rigorously review its continued approval of the child’s placement in an unregistered home. Ofsted should be notified immediately of the placement. Ofsted is then able to take immediate steps under the regulatory regime. 

The Judge said

However, I can observe that, in the experience of this court, the prohibition on placing children under the age of 16 in unregulated accommodation contained in the amended statutory regime is not coming into force on 9 September 2021 in the context of local authorities choosing to utilise such placements for vulnerable children in great need. Rather, it is coming into force in the context of local authorities having no choice but to employ such unregulated provision due to the well-recognised acute lack of appropriate provision. 

Exercise of the inherent jurisdiction if a placement is in Scotland

The placing local authority will need to make application to the Scottish Court of Session within six weeks of the placement starting under the ‘Nobile Officium’ procedure, which will enable the English order to be approved by the Scottish courts. These applications appear to proceed without opposition but the LA will probably need to instruct a firm of solicitors in Scotland to make the application.

Secure Accommodation Orders

The use of accommodation for restricting liberty.

Your freedom to come and go as you wish is very important. It is protected at common law by the ancient remedy of  “habeas corpus” translated from Latin as ‘you have the body’. This was used as early as the 13th Century. A writ of habeas corpus is a request to the court to order someone who has restrained another to produce that person at a designated time and place so that the court can determine if this person is lawfully restrained.

False imprisonment is a ‘tort’ (a civil offence).

Article 5 of the ECHR makes it clear that any deprivation of liberty is an infringement of Article 5, but it can be lawful if authorised under one of the exceptions, which are:

  • a. the lawful detention of a person after conviction by a competent court;
  • b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
  • c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
  • d. 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;
  • e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
  • f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Some difficult issues arise with children, particularly older children, who might want to use their freedom to come and go to do – or fail to do –  things that their adult carers think will harm them.

A further complication is how to factor in the wishes of the parents, who have authority over their children, encapsulated in the concept of ‘parental responsibility’ and the right to demand respect for their family lives under Article 8 of the ECHR. In Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the Supreme Court recognised the responsibility of parents to bring up their children as they see fit, within limits, as an essential part of respect for family life in a western democracy.

A crucial issue, particularly for younger children is whether restrictions on their liberty fall within normal parental control for a child of this age or not? If they do, they will not fall within the scope of Article 5; but if they go beyond the normal parental control, Article 5 will apply.

Therefore a variety of tensions and different legal mechanisms will exist around any attempt to restrict a child’s freedom, which would not arise if dealing with an adult. The current situation is a confusing mixture of common law, the inherent jurisdiction, Statute and European law.

The situation gets even more complicated once a child is 16. It is clear is that various statutes do treat 16 year olds differently to younger children. For example:

  • Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment “shall be as effective as it would be if he were of full age”;
  • Section 131(2) of the Mental Health Act 1983 provides that subsections (3) and (4) apply to a child of 16 who has the capacity to consent to arrangements for his own informal admission to hospital for treatment for mental disorder;
  • Section 2(5) of the Mental Capacity Act 2005 provides that the powers which may be exercised under that Act in relation to a person who lacks, or is reasonably believed to lack, capacity cannot be exercised in relation to a person under 16.
  • Section 9(6) of the Children Act 1989 provides that no court may make a child arrangements, specific issue or prohibited steps order under section 8 of the Act which is to have effect after the child reaches 16 unless the circumstances are exceptional.

There is significant 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 [2010] EWHC 3801 for further consideration about transfer to and from the Court of Protection and Family Court.

This post shall attempt to pick its way through the different approaches of the court, which will depend largely on the age of the child and whether or not he has capacity to consent.

How do you identify a deprivation of liberty?

What is meant by ‘deprivation of liberty’? The ‘acid test’ is that someone is under continuous supervision and control and is not permitted to leave. It doesn’t make any difference if the conditions are pleasant or necessary. It is defined 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.

 

The use of the ‘inherent jurisdiction’

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. It has been recognised by the courts that this is not a ‘straightforward’ statutory provision. See below for further discussion of section 25.

If section 25 doesn’t apply then the courts could rely on the inherent jurisdiction which is in theory a ‘limitless’ power of the High Court to make decisions if there is an apparent ‘gap’ in the statute law.

However, If section 25 applies it must be used as it provides statutory safeguards for the child.  See Re X, Re Y [2016] EWHC. 

The case of Wakefield Metropolitan District Council & Anor v DN & Anor [2019] EWHC 2306 (Fam). Mr Justice Cobb provided a clear overview of how the inherent jurisdiction is used to authorise a deprivation of liberty of a vulnerable adult.

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) [2013]

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.

 

Section 25 Children Act 1989 – Secure Accommodation Orders

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 are set out above.

Wales now has a separate regime for secure accommodation under s.119 of the Social Services andWellbeing (Wales) Act 2014 (“SSW(W) 2014”), although the provisions are substantially the same as under s.25 of the Children Act 1989.

If the child is detained under section 2 of the Mental Health Act, section 25 doesn’t apply.

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. The court confirmed that this was an action of ‘last resort’ in Re B [2019], discussed below.

A further difficulty is that it is clear that for some time now there has been a shortage of accommodation which is designated as ‘secure’ to meet the necessary statutory requirements.

In the case of B (Secure Accommodation Order) [2019] EWCA Civ 2025, the court was very concerned at this continuing situation where the lack of designated secure accommodation meant that the court was increasingly being asked to use its inherent jurisdiction to make it lawful to deprive a child of their liberty.

The court took a wide ranging review of available case law and considered submissions from the Association of Lawyers for children. The court considered four important and over lapping questions

  1. What is the meaning of “secure accommodation” in s.25? – para 48: A straightforward construction of the words of s.25 leads to the conclusion that “secure accommodation” means nothing more or less than accommodation provided for the purpose of restricting liberty. But (para 60) while some types of secure accommodation will be readily recognisable as such, others will not. In some cases, it will not be easy to say whether the accommodation is or is not “secure”.
  2. What are the relevant criteria for making a secure accommodation order under s.25? – Para 61: At first sight, it might appear that the criteria that are “relevant” to the court’s decision are merely the conditions in s.25(1). On closer examination, however, that is plainly not the whole answer. S.25(3) does not simply require the court to determine whether the conditions in s.25(1)(a) or (b) are satisfied, and s.25(4) does not oblige the court to make the order if it determines that one or other of those conditions is satisfied. Plainly there are other “relevant criteria” which must be satisfied before an order must be made. These include (1) whether the child is being“looked after” by a local authority (or alternatively comes under one of the other categories of children identified in Regulation 7); (2) whether the accommodation proposed by the local authority is “secure accommodation” in the sense already discussed; (3) whether, if the local authority is proposing to place the child in a secure children’s home, the accommodation has been approved by the Secretary of State for that use, and (4) whether, if the child is aged under 13, the placement of that specific child has been approved by the Secretary of State.
  3. What part does the evaluation of welfare play in the court’s decision? -para 72: In my judgment, the “displacement of the court’s welfare role” as required by the decision in Re M extends only to the displacement of the paramountcy principle. It does not require the court to abdicate responsibility for evaluating impact of the proposed placement on the child’s welfare. On the contrary, as Butler-Sloss LJ said, the child’svwelfare is plainly of great importance in deciding whether or not an order should be made. The local authority and the court must each consider whether the proposedvplacement would safeguard and promote the child’s welfare. In some cases, the child’vswelfare needs will be served by a period in secure accommodation, particularly if supported by a comprehensive therapeutic programme. In other cases, the child’svwelfare will not be promoted by such a placement.
  4. When considering an application for an order under s.25, is the court obliged, under Articles 5 and 8 of the ECHR, to carry out an evaluation of proportionality? – para 88: In my judgment, an evaluation of proportionality must be carried out by the local authority before applying for an order under s.25 and by the court before granting such an order. Proportionality is one of the “relevant criteria” which must be satisfied before an order is made.

Questions court must ask before making a secure accommodation order

Having considered these issues of principle, the court set out the necessary questions to ask. See para 98:

(1) Is the child being “looked after” by a local authority, or, alternatively, doeshe or she fall within one of the other categories specified in regulation 7?

(2) Is the accommodation where the local authority proposes to place the child“secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’shome in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?

(In the rare circumstances of the child being aged under 13, Regulation 4 of the 1991 Regulations require that the placement must also be approved by the Secretary of State.)

If the relevant criteria are satisfied, s.25(4) obliges the court to make an order under the section authorising the child to be kept in secure accommodation and specifying the maximum period for which he or she may be so kept …. If the court determining an application under s.25 is obliged to conduct an evaluation of welfare and an assessment of proportionality, and in doing so applies the principle that a secure accommodation order should always be a last resort, the court will be under an obligation to consider alternative arrangements.

EDIT – Further guidance from the President of the Family Division February 2020

I am offering this guidance by way of email to judges hearing applications under the inherent jurisdiction to authorise the restriction or deprivation of liberty of a young person in Family Proceedings.

It has become apparent that there may be some confusion with regard to these sensitive cases following the Court of Appeal decision in November in Re B [2019] EWCA Civ 2025

In the course of the leading judgment of Baker LJ, at paragraphs 46 to 60, consideration is given to the definition of ‘secure accommodation’ within the statutory scheme under CA 1989, s 25. Baker LJ concludes that the definition of ‘secure accommodation’ applies to any ‘accommodation designed for, or having as its primary purpose, the restriction of liberty’.

On the facts of Re B, Baker LJ held that the accommodation in which the young person had been living [‘N House’], which was neither a registered children’s home, nor approved by the Secretary of State as secure accommodation, was nevertheless ‘secure accommodation’ as it was accommodation designed for, or having as its primary purpose, the restriction of liberty:

“Although N House was not designed as secure accommodation, it became secure accommodation for B within the meaning of s.25(1) because of the use to which it was put in her case.” [para 107]

It is, however, clear that the above conclusion (that a particular unregistered and unapproved unit is ‘secure accommodation’ within the s 25 definition) does not mean that an application to place a child in such a unit must be determined via a s 25 secure accommodation application. The reason for this lies in paragraph 98 of the judgment in Re B which sets out the relevant criteria for a s 25 order, each of which must be satisfied:
“98. Having analysed the roles played by welfare and proportionality in the decision-making process under s.25, I conclude that, in determining whether the “relevant criteria” under s.25(3) and (4) are satisfied, a court must ask the following questions.

(1) Is the child being “looked after” by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7?

(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?

(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?

(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?

(5) Does the proposed order safeguard and promote the child’s welfare?

(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?
(In the rare circumstances of the child being aged under 13, Regulation 4 of the 1991 Regulations require that the placement must also be approved by the Secretary of State.)”
[emphasis added by AMcF]

Item (4) is the clincher.

It follows that, although an unregistered and/or unapproved secure placement may come within the definition of ‘secure accommodation’ within s 25, that accommodation cannot satisfy item (4) in the ‘relevant criteria’ with the result that a s 25 order cannot be made to authorise placement in that unit. In such a case any court approval would need to be sought under the inherent jurisdiction.

The reason, in Re B, for the court to focus on the definition and its application to ‘N House’ was not because authorisation of ‘N House’ should have been considered within a s 25 secure accommodation application, but because it was necessary, on the facts of Re B, to determine whether ‘N House’ was ‘secure accommodation’ or was ‘any other description of accommodation’ which the young person ‘has a history of absconding and is likely to abscond from’ [s 25(1)(a)(i)] – item (3) of the relevant criteria.

I hope that the above assists in clarifying this issue.

The bottom line is that Re B does NOT signal a need for the court to use s 25 to process applications for DOL in a unit which is unapproved by the Secretary of State as ‘secure accommodation’. Such applications should continue to be considered under the inherent jurisdiction. If the s 25 criteria are met, then, of course, s 25 should be used.

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 discussion above.

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 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) [2011]

  • 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 [2016] 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.

 

The judgement of the Supreme Court in D (A Child) [2019] UKSC 42 (26 September 2019)

This is an important case about the admits and limits of parental responsibility which deserves reading in full. Particularly as the court was split 3-2.

The questions before the Supreme Court in Re D were these

  • Is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17-year-old child which would otherwise amount to a deprivation of liberty within the meaning of Article 5 – the majority of the court said ‘no’.
  • What difference, if any, does it make that the child lacks the mental capacity to make the decision for himself? – no difference.

The case concerned D who was no longer a child when these proceedings were heard, but the issues were so important the court wanted to deal with them. D presented with some very challenging behaviours and so in 2013 when he was 14, his parents could no longer cope and he was admitted to hospital for multi disciplinary treatment and assessment.

In 2014, the Hospital Trust issued an application under the inherent jurisdiction for a declaration that it was lawful for the Trust to deprive D of his liberty and that this was in his best interests. In March 2015, Keehan J found that it was “within the zone of parental responsibility” for his parents to consent to this and thus agree to what would otherwise be a deprivation of liberty. Howeveronce he reached 16 he would come under the jurisdiction of the Court of Protection – see : In re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam); [2016] 1 FLR 142.

D then moved to a residential placement which restricted his liberty and the local authority issued proceedings in the Court of Protection when he was 16 years old and argued that parental consent continued to operate to make this lawful. But In January 2016, Keehan J held that the parents could NOT consent now D was 16. Birmingham City Council v D (by his litigation friend, the Official Solicitor) [2016] EWCOP 8; [2016] PTSR 1129.

The local authority appealed – the Court of Appeal agreed, affirming the central principle of the majority of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, that the exercise of parental responsibility comes to an end, not on the child’s attaining a fixed age, but on his attaining “Gillick capacity”.

The Official Solicitor appealed to the Supreme Court on behalf of D, arguing that no one can consent to the confinement of a child who has reached the age of 16 and lacks the capacity to decide for himself. There must be safeguards to ensure that the deprivation is lawful.

Lady Hale identified the crux of the matter in this way at para 39 of the judgment, commenting that the restrictions placed D went beyond such ‘normal parental control’:

Do the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply (subject to the question of whether parental consent negates limb (b) of the Storck criteria, see para 42 below)….The question then arises what difference, if any, does D’s mental disability make?

The answer to the last question – the impact of D’s mental disability – was that it made NO difference. As the decision in Cheshire West made clear was that disabled people were entitled to the same human rights, including the right to liberty, as any other human being. The fact that they had to be subject to control for the best of motives,  did not mean that they were not deprived of their liberty. The protection of Article 5 was necessary so there could be an independent check on whether or not the arrangements really were in their best interests.

With regard to whether or not parental consent could over come the difficulties of lack of consent from the child in the Storck criteria, Lady Hale said NO – D’s accommodation did amount to a deprivation of liberty and his parents consent that he stay there did not alter that. It cannot be within the scope of parental responsibly to authorise something so fundamental as a loss of liberty.  Lady Hale did not wish to express an opinion on the extent of parental responsibility around other significant issues, such as medical treatment.

Therefore the procedural requirements of Article 5 remained, and in this case were met as D’s placements had been authorised by a High Court Judge. His rights were not in fact violated.

Lady Black raised some important issues about section 25 but these were not determined by the court, rather a ‘marker’ was set down for the future. These questions were considered by the court in  B (Secure Accommodation Order) [2019] EWCA Civ 2025, discussed above.

It is a testament to the complexity of this area that while Lady Black and Lady Arden agreed with Lady Hale. Lord Carnwath and Lord Lloyd Jones did not, preferring the view of the Court of Appeal that parents could consent to their 16 year old child being deprived of their liberty. At para 151 Lord Carnwath said this:

Later in [Lady Hale’s] judgment (para 48) she reinforces that view by equating deprivation of liberty with other “fundamental human rights” such as the right to life or freedom from torture. She argues that it would be a “startling proposition” that it lies within the scope of parental responsibility to authorise violation of such rights. I say at once, with respect, that I am not persuaded that such comparisons are fair or helpful. D’s parents were not authorising the state to commit torture or anything comparable to it. They were doing what they could, and what any conscientious parent would do, to advance his best interests by authorising the treatment on which all the authorities were agreed. That this involved a degree of confinement was an incidental but necessary part of that treatment, and no more than that. On the President’s view, with which I agree, they were not “authorising a violation of his rights”, but rather exercising their parental responsibility in a way which ensured that there was no such violation.

Further Reading