Court of Appeal hands down key ruling on nature of 'secure accommodation'

Premises used to accommodate a 15-year-old girl became "secure accommodation" within the meaning of s.25(1) of the Children Act 1989, even though they were not designed as such, because of the use to which they were put in her case, the Court of Appeal has ruled.

In B (Secure Accommodation Order), Re (Rev 1) [2019] EWCA Civ 2025 Lord Justice Baker allowed an appeal by an unnamed local authority against HHJ Hayes’s refusal of its application for a secure accommodation order under s.25 of the Children Act 1989 for ‘B’.

The Court of Appeal judge said the case raised four important and overlapping questions on the interpretation of s.25:

1. What is the meaning of "secure accommodation" in s.25?
2. What are the relevant criteria for making a secure accommodation order under s.25?
3. What part does the evaluation of welfare play in the court's decision?
4. When considering an application for an order under s.25, is the court obliged, under Articles 5 and 8 of the European Convention on Human Rights, to carry out an evaluation of proportionality?

“The context in which this appeal is being considered is what can fairly be described as the crisis in the provision of secure accommodation in England and Wales,” Baker LJ said.

B had carried out acts of aggression against her mother and stepfather and had attempted to kill herself at least twice.

The local authority failed to find a place in an approved secure unit, but a local agency that specialises in providing shared accommodation and sole placements for young people suggested B should live in ’N House’.

This though was not registered with Ofsted nor approved by the Secretary of State as secure accommodation. In those circumstances, the local authority initially decided that the agency would not be able to offer an appropriate placement.

However, the council eventually accepted this proposal after B was involved in violence at a residential home.

The local authority continued to search for a placement in approved secure accommodation and found one several hundred miles away.

It applied for a court order under s.25 but HHJ Hayes refused this, holding that the criteria were not satisfied and that it would be disproportionate to make the order.

Permission to appeal was granted to the local authority by by Peter Jackson LJ, who invited the Association of Lawyers for Children (ALC) to intervene by filing written submissions.

The ALC submitted that any enlargement of the meaning of ‘secure accommodation’ to encompass placements which otherwise meet the definition of a ‘children's home’ which are unauthorised by the Secretary of State would be “a step which runs contrary to the ordinary reading of the section and regulations”.

It said a child would be unable to argue for any less restrictive regime because such alternatives as existed would not amount to “any other description of accommodation”.

Baker LJ said he had “considerable sympathy” for HHJ Hayes, who had had to make a decision on s.25 which was “not a straightforward statutory provision”.

“The judge was plainly and understandably concerned at the proposal to move the child so far away from home when there were some signs that she had settled down slightly at N House,” Baker LJ said.

“He had to make a decision immediately and deliver a judgment ex tempore…I have, however, concluded that the decision was wrong and this appeal must be allowed.”

HHJ Hayes had used an erroneous reading of s.25, in particular the meaning of ‘secure accommodation’.

Baker LJ said: “He proceeded on the basis that the accommodation in N House was not ‘secure’ accommodation and that it therefore fell into the category of "any other description of accommodation".

“He found that B was not likely to abscond from N House or injure herself while staying there and that, accordingly, neither of the conditions in s.25(1)(a) or (b) was satisfied.”

But the judge said it had been wrong to proceed on the basis that N House was not ‘secure accommodation’.

While not designed as such, “it became secure accommodation for B within the meaning of s.25(1)  and so did not fall into the category of ‘any other description of accommodation’.”

HHJ Hayes had attached importance to B not having absconded from N House in the weeks before the hearing and was persuaded by submissions that the local authority could make place arrangements addressing her situation when at school.

But Baker LJ said: “There was, however, no evidence about any such arrangements. The evidence adduced by the local authority showed that, on the last occasion when B had attended school, she had absconded, visited the family home and assaulted her stepfather.

“The level of absconding had only abated after she stopped going to school and was detained at N House under a regime that plainly satisfied the acid test for deprivation of liberty.

“The evidence clearly demonstrated that, unless she was detained in secure accommodation – either at N House or another establishment – she was likely to abscond and injure herself or others.

“It follows, therefore, that the judge's analysis of whether the conditions in s.25(1) were satisfied was flawed.”

Lord Justice Baker said that in determining whether the relevant criteria under s.25(3) and (4) are satisfied, a court must ask:

(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?

Lord Justice Baker noted the alternative reason given by the judge for his decision was that, if he was permitted to take proportionality into account, it would "very strongly come down in favour of the decision", having regard to the progress B had made at N House.

"...[He] was, in my judgment, entitled – indeed, obliged – to carry out an assessment of proportionality, and also to evaluate the impact of the proposed order on the child's welfare. But the evaluation of proportionality and welfare required the judge to look carefully at the local authority's plan and the advantages as well as the disadvantages of its proposal to place B in an approved secure unit. In my judgment, the judge failed to carry out such an evaluation in this case," the Court of Appeal judge said.

Lord Justice Baker added: "In his brief analysis of this issue, the judge identified the progress which B had made at N House, but he did not sufficiently consider the clear evidence, given not only by the local authority social worker but also by the service manager at N House, that the regime there would not provide B with the comprehensive therapeutic support she needed.

"He failed to take into account the full benefits of the proposed placement at the approved secure unit. His evaluation of proportionality was therefore flawed."

The Court of Appeal judge said over four months had now passed since the judge's decision and that, in some respects, B's circumstances had changed. "Her mother and stepfather have seen encouraging progress while she has remained at N House."

But, Lord Justice Baker said, the local authority remained concerned that, without comprehensive therapeutic support, she would remain at risk.

"The local authority must therefore decide whether it wishes to pursue its application for a secure accommodation order. The placement at the secure unit on the South coast is no longer available. If the local authority is still of the view that B should be securely accommodated and has identified a suitable placement in an approved children's home, it will no doubt pursue its application under s.25," Lord Justice Baker said.

Mark Smulian