Council defends challenge over provision of secure accommodation for children at risk of being detained by police

Judges have dismissed a legal challenge over an alleged systemic failure by a London council to provide adequate secure accommodation for children at risk of being detained in police cells in circumstances where normal local authority accommodation would be unsuitable to meet the risks they pose to the general public.

In AR (A Child), R (On the Application Of) v The London Borough of Waltham Forest [2020] EWHC 622 it was alleged that in breach of its statutory duty under s.21(2)(b) of the Children Act 1989, Waltham Forest Council failed to have in place a reasonable system to enable it to respond to requests made at short notice by the police under s.38(6) of the Police and Criminal Evidence Act 1984 ("PACE") for secure accommodation to be provided for a detained child, until he or she can be brought to court. This would mostly involve an overnight stay.

In this case, a Team Manager at Waltham Forest said to the custody sergeant that the council could not source secure accommodation for AR (the claimant), who was 16 and a half, at such short notice and besides, all the secure accommodation providers were located outside London. Bearing in mind the timing of his scheduled court appearance, the Team Manager and the custody sergeant agreed that it was in the best interests of AR to remain in police custody overnight.

In the light of that conversation, the custody sergeant certified that AR could not be moved to local authority accommodation because there was no secure accommodation available for him. That decision was noted on the custody record, and approved by a police Inspector, who agreed that (i) secure accommodation was necessary to protect the public from serious harm and (ii) as suitable secure accommodation with the local authority was not available, AR should remain in police custody until his court appearance the next day.

The case was heard in the Divisional Court by Lord Justice Davis and Mrs Justice Andrews.

Counsel for Waltham Forest accepted that its current system – using the Secure Accommodation Network (“SAN”; a centralised arrangement through which local authorities have access to pooled licensed secure accommodation) together with an initiative in place with three other London boroughs for dealing with the practicalities of requests for secure accommodation outside working hours – was unsatisfactory.

However, he argued that the claim for judicial review was misconceived. Amongst other things, he pointed out that the effect of granting declaratory relief would be to state that Waltham Forest acted irrationally in subscribing to what all other local authorities do. Since there was a shortage of secure accommodation and each local authority had an obligation to provide it, and they were operating in financially straitened circumstances, it could not be irrational to use a pooling arrangement.

Mrs Justice Andrews said she was not persuaded that Waltham Forest was in breach of statutory duty as alleged, and accordingly she would dismiss the claim.

She found that:

• The claim was “really a complaint about the nationwide lack of secure accommodation available to all local authorities due to the absence of funding by Central Government”.
• The Court of Appeal had made clear in R (M) v Gateshead Metropolitan Borough Council [2006] EWCA Civ 221 the duty of the local authority is to put in place a reasonable system to enable it to respond to requests under s.38(6) for secure accommodation. “The evidence in the present case is very similar to that in Gateshead, in that the local authority has no secure units of its own, it purchases such accommodation from registered providers, and the nearest provider is many miles away (though much less than the distance involved in Gateshead).”
• The handful of requests for the provision of overnight secure accommodation made to the four London boroughs (including Waltham Forest) collaboratively operating the out of hours EDT (Emergency Duty Team) system, in the period of around 18 months before and after AR's arrest, indicated that such requests remained a comparative rarity. Waltham Forest did not ignore those requests but tried to meet them: however, the secure accommodation was either unavailable, or if available, too far away from London to be practicable. “That was not the fault of Waltham Forest, as it had no practical alternative to using the 15 approved providers using the [SAN] system and procedures laid down by the Department for Education. The only means theoretically available to it to avoid that course would be to spend its limited resources on providing, staffing, and maintaining its own secure accommodation which would then be made available to all local authorities, but a decision not to go down that route can hardly be described as irrational.”
• The absence of evidence of successful placements did not lead to the conclusion that there was a systemic breach of statutory duty as the claimant’s QC had contended. “I cannot see any valid distinction between the system which was found to be lawful in Gateshead and the system adopted in the present case.”
• It was rational for Waltham Forest to enter into centralised arrangements for the use of existing, authorised secure accommodation via the Secure Accommodation Network, to operate these arrangements in accordance with the Concordat (as subsequently supplemented by the London Protocol), and to make arrangements to pool its resources with three other London boroughs to provide an out of hours response through the EDT to urgent applications, including s.38(6) requests for accommodation, both secure and non-secure.
• The guidance and procedure set out in the EDT handbook established that Waltham Forest had its legal duties well in mind when it developed the out of hours system. “The procedure squarely faced up to the practical impediments to providing secure accommodation in a case where the child had to be transported in the middle of the night and then brought back for a hearing in court the next morning.”
• Waltham Forest had to form a value judgment about the appropriate use of its resources, taking account of its statutory obligations, and the judgment that it formed was plainly one that was open to it.

Lord Justice Davis agreed. He said:

• The challenge raised in these proceedings was not as to the specific decision-making on behalf of Waltham Forest. Rather, the challenge was as to whether Waltham Forest had in place a reasonable system to enable it to respond to requests for secure accommodation under s.38(6) of PACE. “That said, the underpinning complaint in this case relates, in many ways, to the lack of availability of such accommodation on a national basis.”
• The evidence did not establish that Waltham Forest did not have a reasonable system in place. “In particular the limited, and to a degree undifferentiated, statistical evidence adduced does not sustain such a conclusion. Further, the sharing arrangements put in place cannot fairly be described as unreasonable (in the public law sense), even if in some cases they demonstrably cannot achieve the ideal. Important issues of resources and allocation also come into the equation here: and the courts must show an appropriate degree of respect for local authorities' decision-making in this regard.”
• The overarching principle underpinning s.38(6) of PACE was no doubt by reference to the best interests of children. “But there will inevitably be occasions when that general principle has to accommodate the specific interests of a specific child on a specific occasion. It is hard, for example, to see how it could possibly be in the best interests of a child – indeed, how it could be fair for a child – to be, say, placed in a car at a police station late at night, driven for a considerable period of time to secure accommodation, and then be rousted out again in the early hours to be driven back to a court. The claimant would say that such a scenario shows the need for the availability of many more secure accommodation centres, available locally. That is an understandable viewpoint. But, as the Gateshead decision illustrates, public law principles of reasonableness do not mandate such an outcome.”

Enver Solomon, CEO of Just for Kids Law, which brought the claim on behalf of the claimant, said: “We are very disappointed by the court ruling as the Home Office recognises that police cells are traumatic, inappropriate places for children, yet the practice of detaining them overnight continues. The deeply damaging and unlawful practice must come to an end.

“The government urgently needs to work with local authorities to enable them to comply with their legal duties to provide safe, secure accommodation for children who are detained by the police.”