Magical sparkle powers

Mr Justice Mostyn has recently issued two rulings on secure accommodation and consent. Andrew Pack examines the judgments and the prospect of an appeal.

These are two intricate judgments about the same child, where two different and unusual points of law collide.

A Local Authority v SW & Ors [2018] EWHC 576 (Fam)

A Local Authority v SW & Ors [2018] EWHC 816 (Fam)

1. For a while now, because there are not enough Secure Accommodation beds for the children who need to be placed in them, the High Court has been asked (and is often granting) approval for the child to be placed in a unit that is NOT approved for Secure Accommodation and giving all of the powers for the child’s liberty to be restricted, using the Court’s inherent jurisdiction – or what I like to call magical sparkle powers. (I think this is a public enquiry waiting to happen – there are very good reasons – google Pindown – for why Parliament set up a very restrictive statutory regime for how children can be deprived of their liberty, with training and inspection regimes to safeguard those children. Others take a pragmatic view that these children need to be somewhere safe and contained and as we don’t have enough Secure Units, we have to do something, and the High Court are doing their best with the resources we have)
2. The deprivation of liberty for children as a result of their circumstances short of the secure accommodation regime, where the Court of Appeal and High Court have found that parents can consent to the arrangements and that capacitious children can consent to the arrangements too. So that an authorisation under the inherent jurisdiction is not necessary, because it is being done by consent.

What appeared before Mostyn J was a young person for whom the grounds for Secure Accommodation were clearly made out, but there was no bed in a Secure Unit. He was being asked to approve a different form of home to use those powers, BUT it was argued that the young person was consenting to that regime, and so a declaration by the Court for use of inherent jurisdiction was not necessary.

The way that Mostyn J approached it was to think about the quality of consent – was it temporary or enduring?

A Local Authority v SW and Others [2018] EWHC 576 (Fam)

Mostyn J firstly sets out his approach when looking at authorising secure accommodation with a lowercase s, under the inherent jurisdiction. I wholeheartedly agree – I’d rather we weren’t doing it at all, but at least this is making efforts to safeguard these very vulnerable children.

"3. Since the enactment of the Act that scheme appears to have functioned tolerably well until recent times, when an unhappy phenomenon has arisen, and that phenomenon is that there had not been sufficient authorised places made available under this section. When I say “authorised places” I am talking about places that have been authorised by regulations made pursuant to subsection (7), which allow the Secretary of State to prescribe which places may provide secure accommodation. In recent times, a phenomenon has arisen, as I have said, whereby insufficient places have been made available to meet the demand for children to be placed in secure accommodation. Therefore, a mirror procedure has been devised by the High Court which has authorised placements in secure environments for children in places not authorised pursuant to the regulations made under section 25 of the Children At. And this is such a case. There is no suitable place to accommodate a child pursuant to an order under section 25 of the Children Act (or its Welsh equivalent) apparently available anywhere in the country, even in Scotland.

4. There have been a number of authorities as to the scope of the power of the High Court under an inherent jurisdiction to make these alternative mirror arrangements. In my opinion, lest the democratic process is to be subverted by judicial activism, it is important that, so far as is practicably achievable, that mirror orders made under the inherent jurisdiction conform as much as possible with the prescriptions within section 25 and its subsidiary regulations. Were the court to devise an alternative scheme that deviated significantly from the terms of section 25 (or its Welsh equivalent) there would, as I have said, be a danger of criticism of judicial activism in conflict with a Parliamentary directive.

5. Therefore, it seems to me that if the court is to make an alternative mirror order pursuant to its inherent jurisdiction, it should strive to ensure that, in the first instance, it is not longer than 3 months, and that each subsequent renewal is for no more than 6 months. Further, it should be satisfied initially and on each renewal that the criteria within section 25(1) are met. I am not saying that the court is imprisoned within the four corners of the terms of section 25(1). To coin a phrase, it should not have its liberty so deprived, but there should be endeavours made by the court that, so far as possible, it should be satisfied that the statutory criteria are met. Were that not so, then there would be, by judicial activism, established an alternative scheme which perhaps might have lower standards than that which Parliament has decreed should apply where the liberty of a child who is the subject of a care order is deprived.

6. The compliance of section 25 with the European Human Rights Convention and the Human Rights Act was considered by the Court of Appeal in the famous case of Re K [2001] 1 FLR 526. In that case it was held that a secure accommodation order is indeed a deprivation of liberty within the meaning of article 5 of the Convention, but it is not incompatible with the Convention where it is justified under one of the exceptions in article 5(1). For example, where the order is for the purposes of educational supervision. I should say here that education within article 5(1) plainly is not to be read as being confined purely to scholastic instruction, but must be given, for the purposes of the construction of that provision, a wider definition. Re K was decided 17 years ago, and since then there have been (as is well known) significant developments both in the Strasbourg Court and domestically in the interpretation of the scope and meaning of article 5. Famously, in Storck v Germany [2005] 43 EHRR 96 it was held that in order for article 5 to be engaged three criteria must be met: namely, that there must be an objective component of confinement in a particular restricted place for a not negligible length of time; secondly, there must be a subjective component of lack of valid consent; and, thirdly, there must be an attribution of responsibility to the state. Thus, there must be a non-consensual detention at the behest of the state. This formulation was approved by the Supreme Court in the Cheshire West case [2014] UKSC 19 at para 37."

He then turns to the issue of consent:

"7. The second limb of the formulation requires there to be a lack of valid consent. An interesting question arises, which is relevant to the decision that I have to make, as to whether this requirement has to be demonstrated when an application is determined under section 25 of the Children Act 1989. The notes to the Red Book state that the consent of a young person to the making of a secure accommodation order is not required. The citation for that is Re W (a child) [2016] EWCA (Civ) 804. But that does not really answer the question that I am now posing, which is that if the young person who is the subject of an application under section 25 consents to the application, can the order in fact validly be made? Because in order for there to be a deprivation of liberty, there must be, as the Strasbourg Court has said, present the subjective component of lack of valid consent. So one can see a curious catch-22 arising, which is where the local authority consider that a child should be placed in secure accommodation, and the child through his representatives realises that the case against him or her is very strong, if not overwhelming, and consents to it, that the act of consent in fact prevents the order being made. That cannot be an acceptable construction of the provision, in my respectful opinion, and it is for this reason that consent, or lack of consent, never features in applications under section 25, and that, as Miss Edmondson has eloquently explained, in many cases the applications for these orders are disposed of by consent.

8. So this gives rise to the question whether there must be demonstrated lack of valid consent if the application is being made under the alternative mirror procedure pursuant to the inherent jurisdiction. If the issue of lack of consent is not a requirement under the statutory procedure, and if, as I have suggested, it is important that the alternative mirror procedure conforms as much as possible to the statutory procedure, it is hard to see why there should be an imputation of the lack of consent requirement into the alternative procedure. However, I am persuaded by Mr Laing that all the authorities under the alternative procedure have emphasised strict compliance with the Strasbourg jurisprudence on article 5. Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative procedure, that it does have to be satisfied of the presence of a lack of valid consent. It may well be that in a case in which an application is being made under section 25 (or under its Welsh sibling) the court will have to consider the point that I have spent some time describing, and whether there does in fact, since the arrival of the Strasbourg jurisprudence to which I have referred, lie latently within section 25 an insoluble catch-22.

9. So I proceed on the basis that in order for the order to be made today, the 3 components have to be present. There is no dispute as to the first and the third. The question is as to whether the second is demonstrated in circumstances where there is active consent by the child with whom I am concerned to the placement in question.

10. This matter was considered by Keehan J in the decision of A local authority v D [2016] EWHC 3473 (Fam) (otherwise known as Re C). It has to be said that in that case the conduct of the children concerned was very much of a lower level of concern to that which I am concerned with. However, Keehan J decided clearly that the child in question could give a valid consent. Moreover, he decided at paragraph 58 that once he was satisfied that valid consent has been given, the fact that he may withdraw that consent at some point in the near future does not negate the valid consent he gave nor does it negate the legal consequences of that consent." I have considered this judgment carefully, and I take from it that the concept of consent does not necessarily mean hearing the words “I do”. There must be an authentic consent, and this much is accepted by Mr Laing who represents the child. As he put it, he must say it and mean it. The consent in question must be an authentic consent, and it must be an enduring consent. This means that the court will have to make a judgment as to whether the consent is going to endure in the short to medium term, or whether it is a merely evanescent consent. If the court is satisfied by the history that the consent in question is merely evanescent and is not likely to endure, then, in my judgment, that is not relevant consent for the purposes for which I am concerned. This is, to my mind, to state the obvious. So the court can only make the order in question if it is satisfied that there is a lack of valid consent in the way that I have described it: authentic, and likely to endure.

(The bits in italic are the parts that probably lead to the decision being appealed. For my part, I think that Mostyn is right. We can’t predict whether consent will be withdrawn, but where the history is very clear that it is a temporary consent that the young person can’t maintain, that’s a factor to be taken into account. Put bluntly, if a Local Authority are looking to have the power to stop a young person leaving a children’s home because they have a history of running away, how much force does the young person saying “okay, I agree that I can’t leave… but if I change my mind and try to, you’ve got to let me” actually have?)

On the facts of the case Mostyn J decided that the consent being proffered by the child was not authentic and likely to endure and he made the inherent jurisdiction declarations.

Permission to appeal was then given by Jackson LJ. The child absconded from the unit, and the case came back to Court. And if there was ever a daunting prospect in advocacy it is appearing before Mostyn J on a case where he knows you have just appealed him. His approach to such things is not sanguine. It is more akin to striking an Edwardian gentleman about the face with a white silken glove. In short, it’s on.

Like Donkey Kong.

So, part 2

A Local Authority v SW & Ors [2018] EWHC 816 (Fam)

"3. That decision of mine has been appealed and permission to appeal was granted by Peter Jackson LJ on 19th March 2018 under the second limb, namely that there were compelling reasons for an appeal to be heard. I have noted that in the skeleton argument in support of the proposed appeal, an analogue in relation to the consent to sex was made; similarly, an analogue with the formation of a commercial contract was made. It will be for the Court of Appeal to decide whether these analogues have any relevance at all to the consent which, is in fact, in play. I would point out that a person at the age of the child with which I am concerned cannot consent to sex or form a contract, so the relevance of those analogues at the moment presently escapes me.

4. In my judgment, the view that I took that the consent in question has to be found to be both authentic and enduring is well borne out by the subsequent events. I cite from the witness statement made by a social worker on behalf of the Local Authority dated 16th March 2018. At para.10 it says this:

“On 3rd March 2018, [name redacted] went out for a walk without permission at 16.45 following becoming agitated at the home and staff followed her. A staff member [name redacted] has reported that she maintained contact with [name redacted] through text messaging and met up with her again in McDonald’s at 17.40. [Name redacted] reports to [name redacted] that she was upset about her younger brother staying at his mother’s house when he was not supposed to. On her return, [name redacted] went into her bedroom, the following day staff reported that [name redacted] was pacing back and forth in her room, asking for a paracetamol for a headache. [Name redacted] reports that [name redacted] unusual behaviour continued, leading her to request a room search. [Name redacted] became aggressive towards staff whilst in her bedroom when staff asked her to do a room search. They describe that her eyes were like saucers and could possibly have been under the influence of a substance. [Name redacted] used a plastic plaque to harm herself, was hitting out at staff with it and making verbal threats that she would, “Fuck them up”. The staff reported that [name redacted] calmed down quickly after the incident. Police attendance had initially been requested and when the police arrived, [name redacted] became agitated again and upon search of her, a mobile phone with Internet use fell out of her bra. Upon a search of the room, nothing further was found. [Name redacted] was admitted to hospital following the incident of self-harm, where she had superficially cut her wrists. At the hospital, she was seen by CAMHS and they concluded that she had no further self-harm intent and no suicidal ideation and were happy for her to be discharged. She was discharged back to [name redacted] on 6th March 2018 at 2.00 p.m…

12. On 6th March 2018, following being discharged, [name redacted] left her accommodation at about 5.00 p.m. and was reported missing to the police. She was found by the police smelling of alcohol, having hallucinations and was aggressive. She was refusing to be monitored and was very agitated and was given two milligrams of Lorazepam to calm her down. Ambulance staff transported her to hospital on 7th March 2018 at 5.00 a.m. where [name redacted] reported to hospital staff that she did not remember what had happened, was given alcohol and sweets and reported to have had anal and oral sex with one man who she did not know. [Name redacted] refused to go to the [name redacted], a provision to offer urgent and follow-up care to people who have been sexually assaulted but agreed to a hepatitis B vaccine, bloods and sexual health tests. [Name redacted] was given three weeks preventative medication for HIV.”

5. Three days after that, the placement of the child completely broke down and she was moved to a new placement in the Midlands. She is content and compliant at that placement. Everyone hopes that this new placement will represent a success for her and that improvements can be made in her mental rehabilitation.

6. The consequence of this is that the order that I made authorising her detention at the previous placement has been overtaken by events. That order will therefore be discharged and replaced by a fresh order made by me today. The consequence of that is that the order in respect of which permission to appeal has been granted by Peter Jackson LJ no longer exists and that appeal becomes redundant. However, in view of the fact that I intend to adopt the same legal reasoning in respect of this fresh placement will, no doubt, lead the child to seek permission to appeal this new order, notwithstanding that the point of this exercise entirely escapes me."

At this point, I like to pause and imagine the charged atmosphere should Mostyn J and Peter Jackson LJ find themselves in a slow lift together at the Royal Courts of Justice, with perhaps the “Girl from Ipanema” as elevator hold music playing in the background.

So, the order that was being appealed is no more, so the appeal has to end (it is an appeal of an order, not a decision – though the Court of Appeal do fluctuate quite wildly on whether they champion this point or completely ignore it – see the various decisions about findings of fact). Mostyn J recognises that this judgment is also likely to be appealed (though he is on even firmer ground in deciding that the young person’s consent is not enduring, the point of law as to whether that’s necessary if capacity and consent are both present remains)

"8. On the last occasion in my judgment I held that the consent, as I have said, can only be found to exist where it is authentic and enduring. That I was correct in that determination is demonstrated by the subsequent events. Notwithstanding that the child on the last occasion expressed to me, seemingly authentic consent, subsequent events show that within a relatively short period of time, that consent was not genuinely expressed because the events which I have set out occurred.

9. For these reasons, I am satisfied once again, even more satisfied than I was on the previous occasion, that the deprivation of liberty declaration should be given, granting the Local Authority the powers and protections which I have mentioned in my previous judgment.

10. I have asked, if I were not to make this declaration, what position would the Local Authority and, indeed, the child be left in? She would not be in a position of formal state detention with the powers and protections that attach to that. She would, on the face of it, be free to leave her present placement, although the consequences would be that she would then become an officially missing person and the Local Authority could summon police assistance to bring her back to base, but there will be nothing to prevent her leaving again almost instantly, a situation that is almost too absurd to contemplate as a consequence that the law intends to apply.

11. For these orders, therefore, I make an equivalent order to the one that I made on the last occasion in relation to this new placement. For the avoidance of any doubt and in anticipation of an application for leave to appeal, I refuse leave to appeal on the same basis that I did on the last occasion, namely that I see no prospect of an appeal succeeding and, with all due respect to Peter Jackson LJ, I can see myself no compelling reason for the appeal to be heard.

12. I will authorise the bespeaking with expedition of a transcript of the judgment I have just given at public expense."

(Bespeaking, by the way, doesn’t refer to speech – it isn’t a posh way of saying, “speaking”, it means to order in advance. It is like Captain Picard saying “Make it so”)

Mostyn J had raised in the first judgment the issue of whether consent could block a Secure Accommodation application, if it were not for his test of whether the consent is authentic and enduring. If it were not for the particular construction of s25, that would be a powerful point.  If the ‘no order principle’ applied to s25, consent from the young person would be sufficient to block the order, and then the young person could immediately withdraw the consent and walk out of the placement. Assuming no criminal offence was being committed, nobody could stop the child (it is arguable that the LA could use the 72 hour provision if they had not already done so, but only arguable)

However, section 25 is constructed in such a way that it is not at all clear that s1(5) applies

1 (5)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.

That would mean that the Court should not make a Secure Accommodation Order if the child is consenting.

BUT

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 specifying the maximum period for which he may be so kept.

And those two sections are in conflict. After nearly 30 years of the Act, we don’t actually know whether s1(5) applies to a section 25 order. I would always have said that it didn’t, but it is less clear since the Human Rights Act. Since a Court making a Secure Accommodation Order not only has to think about article 5, but also article  8 – is it proportionate and necessary? And I think consent might come into play on necessity.

In conclusion then, I agree with Mostyn J’s decision and rationale. I disagree that there’s no value in an appeal. It is not usually desirable to have an appeal on a decision that you think is right, but it would be nice to have clarity and backing. Particularly given that a lot of Secure Accommodation applications are heard before the Magistrates and having to decide whether consent blocks Secure Accommodation order might be better if they have some very clear judicial guidance.

Andrew Pack is a local authority childcare lawyer. This article first appeared in his Suesspicious Minds family law blog. Andrew's first book, In Secure, has been published this week - find out more here.