Family President to issue guidance to courts on secure accommodation placements and statutory regime

The President of the Family Division has said he will issue practice guidance to the courts before the end of July so that more can be done to bring secure accommodation placements within the statutory regulatory scheme.

Giving the Nicholas Wall Memorial Lecture 2019, Sir Andrew McFarlane questioned the ability of the Children Act 1989 to encompass the needs of young people who may require to be accommodated in circumstances where their liberty is restricted.

Part 3 of the Children Act 1989, which deals more generally with local authority support for children and young people, includes provision in s25 by which a court may make a ‘secure accommodation order’. That jurisdiction is facilitated by a statutory scheme for secure accommodation enshrined in the Children (Secure Accommodation) Regulations 1991.

“For the children who fit the criteria, the provision made by s 25 is entirely appropriate and not in need of reform,” Sir Andrew said.

“The number of young people who need this form of accommodation, however, far exceeds the number of approved places available. I understand that at any one time each secure bed that comes free will have between 15 and 20 potential occupiers chasing it.”

The Family President went on to identify three separate groups of young people who require some form of restriction on their liberty and who are brought before the Family Court:

1. Those who would otherwise go to an approved secure accommodation facility but, due to a lack of beds, no such place can be found for them.
2. Those whose circumstances do not strictly come within the statutory scheme for secure accommodation, but whose mental health and well-being requires some form of restriction. “Those suffering from eating disorders, or who have been groomed for sexual abuse, or who may self-harm, might be examples of this second group.”
3. Young people who need to be moved out of their home area and placed in accommodation to prevent them from being found and drawn back into the gang culture.

Each of these three groups represents some difficulty for the Family Court, Sir Andrew said. “In essence the difficulty is that, normally, and almost inevitably, the bespoke accommodation identified by social services will not be in an approved children’s home, let alone approved secure accommodation. Often the placement will be a significant distance away from the local authority area and outside the local knowledge of the court. Often it will be provided by a private company. Often the accommodation will be very expensive.”

The President added that very frequently the need for the court to approve any particular placement would arise as a matter of urgency, with the court being told that no other placement is currently available.

“Typically, the application comes before a judge on short, or no, notice,” he said. “Young people in the groups that I have described are vulnerable and very needy. It is difficult for the court not to approve such a placement – at least on a temporary basis.”

The Children Act 1989 does not make provision for the court to authorise placements on the basis that he had described, Sir Andrew said. “Young people under the age of 16 years do not fall within the jurisdiction of the Court of Protection where there is a statutory scheme for the authorisation of deprivation of liberty. The Family Court engages with these cases either by approving the local authority care plan, which will specify the particular placement provision that is to be made, or more commonly, by deploying the High Court’s inherent jurisdiction.”

The judge continued: “Whilst there seems to be no legal basis to question the Family Court’s jurisdiction to approve ad hoc placements that restrict a young person’s liberty as I have described, I do have a profound unease over the court frequently being asked to approve the accommodation of children when it, the court, has no means of checking or auditing the suitability of the facility that is to be used.”

The circumstances in which the Family Court is asked to approve placements of this nature have developed “exponentially” in recent years, he said. “It is now a regular feature of the life of the Family Court, whereas this was rarely so even 10 years ago. Whether or not the court’s jurisdiction to deal with these cases requires to be brought within the statutory scheme is, of course, a matter for Parliament, and, in raising it this evening, I am doing no more, nor no less, than inviting those who were charged with these matters to consider the question.

“In any event, there is a need, where a judge is forced by circumstances and the lack of any other option to authorise placement in facilities which have not been approved as a children’s home under the statutory scheme, for the court to ensure that steps are taken immediately by those operating the facility to apply to the regulatory authority (OFSTED) for statutory registration,” he said, announcing his intention to issue guidance for the courts.

Elsewhere in his speech the Family President Act said the 1989 Act had “more than stood the test of time”. He noted that the concept of ‘significant harm’ and the need for the State to establish an objective baseline of detriment to a child’s wellbeing sufficient to justify intervention in family life “must be high on any list of innovations brought to pass under the Act".

Sir Andrew said a modern example of the flexibility of the s31 threshold criteria was to be found in the ability of the Family Court to make orders for the protection of young people who are involved in gang culture generally, or running “county lines” in particular.

“In the past some such young people may have found themselves before a criminal court. Now, not infrequently, young teenagers in such circumstances, who are seen as victims and in need of protection, are brought, by local authority social services, before the Family Court where an application is made for a care order on the grounds that the child is “beyond parental control” and as a result is suffering or is likely to suffer significant harm,” he said.

“Care judges in the larger courts in urban centres now see a regular flow of cases involving young people on the edge of the gang culture. Whilst these are not the most straightforward of cases, it is right that the Family Court is able to take steps to try to protect these young people, where protection is needed, and it is, again, a sign of the flexibility of the Children Act that its provisions apply readily to these modern problems.”

The judge added: “At a time when, rightly, there is extreme public concern over the impact on young people of the gang culture, it is, I believe, important to trumpet this initiative by local authorities and the Family Court by taking action under the Children Act 1989 to try to protect some of these vulnerable young people.”

The Family President did however go on to highlight one of the regular challenges now presented to the staff and security teams at city centre Family Courts from some of those attending carrying knives on arrival at the court building.

During the first four months of this year at the Central Family Court in Holborn, London, no fewer than 473 knives with blades over 3 inches long were confiscated from individuals during security checks at the court entrance, he said. An additional 230 knives were found deposited in the precincts immediately outside the court entrance.

“We do not believe that most, indeed any, of these knives were necessarily being brought in for use in the court building. It simply seems to be a facet of everyday life in 2019 for some members of the population to carry a weapon with them at all times.”