Summary of M (A Child) (Secure Accommodation)

In M (A Child) (Secure Accommodation) 2018 EWCA Civ 2707 the Court of Appeal has provided a useful summary of the current law on secure accommodation orders.

Background

A 15-year-old girl was initially subject to a secure accommodation order for a period of 3 months. She had been diagnosed with a conduct disorder and had a history of self-harming, leaving placements and putting herself at risk.

On 9 November 2018, HHJ Sharpe made a further secure accommodation order for 6 months (as well as a care order). The child accepted that she could not go home and that a care order was appropriate. However, she opposed a secure accommodation order arguing that she had made progress and could now be trusted. She appealed on the basis that (i) that the judge was wrong to find that either of the statutory gateways was satisfied, (ii) that that the making of the order was disproportionate and (iii) its duration too long.

Section 25 (1) Children Act 1989

A secure accommodation order permits a local authority to keep a child in secure accommodation. To make a secure accommodation order, the court must be satisfied that the criteria set out in section 25(1) of the Children Act are met. Section 25(1) provides:

(1) Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation in England or Scotland 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.

The Children (Secure Accommodation) Regulations 1991 sets out the maximum periods a secure accommodation order can last. Regulations 11 and 12 provide for an initial maximum period of 3 months and thereafter maximum periods of up to 6 months.

Summary of the case law

Peter Jackson LJ provided a helpful summary of the case law relating to this section.

Likelihood” in the context of this section means a possibility that cannot sensibly be ignored (Re G (Secure Accommodation Order) [2001] 1 FLR 884 at 896).

“Absconding” means something more than trivial disobedient absence.  It may connote an element of escape from an imposed regime (Re W [2016] EWCA Civ 804]) but it is not limited by consideration of the intentions of the individual concerned.  Judges can be relied upon to give the word its ordinary meaning and recognise behaviour that can be properly described as absconding in all the circumstances of the individual case.

In specifying the period of a secure accommodation order, the court must consider carefully the purpose to be achieved and assess as best it can the length of time which that is likely to take; the order should be for no longer than is necessary and the court should explain its reasoning (Re W (Secure Accommodation Order) [1993] 1 FLR 692 at 697).

The welfare paramountcy principle in section 1 of the Children Act 1989 does not apply to an application for secure accommodation order (Re M (Secure Accommodation Order) [1995] Fam 108) although a local authority should consider the child’s welfare when deciding whether to restrict a child’s liberty.  The function of the court under section 25 is rather to control the exercise of the local authority’s power than to exercise an independent jurisdiction in the best interests of the child.

Peter Jackson LJ briefly summarised the range of authority on the place of proportionality in an application for a secure accommodation order. The central question is whether the stringent criteria within section 25 itself amount to an inbuilt proportionality check or whether something more is required. The most recent Court of Appeal case held that if the qualifying criteria are met, the ambit within which it is possible, if at all, for the court to exercise discretion is limited (T (A Child) [2018] EWCA (Civ) 2136). However, in 2016 the same court had accepted that is was “plainly right” that any order must be necessary and proportionate (Re W [2016] EWCA Civ 804]). The court did not think the current case was the occasion for resolving this issue of principle.

Judgment

The child’s position was that too much weight was placed on the events of spring 2018 – when she absconded on 10 occasions – and too little on her more recent progress. This approach, it was argued, impacted on the trial judge’s findings on the likelihood of future absconding and injury. It was argued on her behalf that, in light of her recent progress, placement in a custodial type environment was a disproportionate inference with the child’s article 5 and article 8 rights.

The court dismissed the child’s appeal. Peter Jackson LJ found that the case for a continued secure accommodation order was compelling. The trial judge was fully entitled to find that the child’s history of absconding placed her at severe risk of absconding in the future. The trial judge made proper factual evaluations in line with the authorities and addressed the issue of proportionality albeit that it may not have been necessary.

Comment

Whilst the application of the law in this case was itself unremarkable, it serves as a useful summary of the current state of the law. It’s interesting to note that the issue of whether proportionality is an additional requirement to the qualifying criteria or is inbuilt within those criteria is yet to be resolved.

Back to Cases