Samara Brackley discusses secure accommodation procedure after HHJ Lazarus’s judgment in Re O [2018] EWFC B60 published this week.

Secure accommodation applications and procedure continues to be an area at the forefront of criticism by both judges and practitioners alike. Applications are becoming more and more common as secure placements are used to protect children from the risks of gang violence, child sexual exploitation and trafficking, amongst the more routine applications for children involved in serious criminality or those whose behaviour requires constant monitoring.

2017 saw cases involving secure accommodation gain publication in the national press, as well as move the President of the Family Division and other High Court judges to place some significant judicial pressure on those government departments who are able to effect the change required (such as Re X (A Child:No. 3) [2017] EWHC 2036 (Fam). A year on, it appears little has changed.

So where do you begin?

s.25 Children Act 1989

The test for whether a child should be placed in a secure accommodation placement is set out under s.25 of the Children Act 1989. S.25(1) says that a child should not be placed in a secure accommodation unit unless it appears that:

1. :-
   1. he has a history of absconding and is likely to abscond from any other description of accommodation; and
   2. if he absconds, he is likely to suffer significant harm, or
2. that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

The test under s.25 is prescriptive, meaning that if the criteria are met, the court will make an order. The court should not make a s.25 order unless a placement has been found for the child in question, although anecdotally it appears that judges are now making s.25 orders without a placement having been found in order to put pressure on the relevant organisations responsible for placements.

Re W (A Child) [2016] EWCA Civ 804 at [22] helps narrow the definition of ‘a history of absconding’ to ‘escaped indefinitely from an imposed regime’.

What about DOLS?

DOLS placements for children have resurfaced in current case law courtesy of last week’s judgment of Re T [2018] EWCA Civ 2136. Residential placements (as opposed to secure placements) are not authorised to be used as secure placements by the Home Secretary under Regulation 4 of the Children (Secure Accommodation) Regulations 1991. If a local authority wishes to place a child in a Residential Unit, but with aspects that would restrict a child’s liberty under the Cheshire West criteria (set out below) such as 24-hour supervision, the local authority must apply to the High Court for authorisation of the placement under the Deprivation of Liberty Safeguards. A local authority that fails to do so runs the risk of a potential human rights claim on behalf of the child.

The new President, McFarlane P, heavily criticised these placements at [88] of Re T, as, amongst other things, they are not protected by a statutory regime, nor are they approved by the Department of Education as being proper placements for the most vulnerable teenagers. It seems, however, that these sorts of applications for DoLS authorisation of temporary accommodation solutions that restrict a child’s liberty, whilst waiting for an authorised s.25 placement, are increasingly frequent, with Holman J commenting upon the same at [6] of Re A (A Child) [2017] EWHC.

In order to bring an application for DoLS authorisation, the court must apply the ‘acid test’ for whether a person has been deprived of their liberty per [49] of Cheshire West [2014] UKSC 19 applies, that being:

1. That the person is under constant supervision and control; and
2. That the person is not allowed to leave.

Further to this, the court must be satisfied that the use of the inherent jurisdiction, which is the only jurisdiction under which the DoLS authorisation can be granted in the family courts. In order to invoke the use of the inherent jurisdiction in the Family Division, the court must be satisfied that the following criteria, under s.100(4) of the Children Act 1989, are made out

That:

1. The result which the local authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
2. There is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

The organisations involved

Hayden J commented upon the opacity of the secure accommodation unit structure in his judgment in Re F. In my experience as counsel for Southwark, it became apparent that it was almost impossible to identify anyone who was willing to accept responsibility for the secure accommodation placement procedure, which one year later, does not appear to have improved.

The organisation Secure Children’s Homes network is run and authorised by the National Secure Welfare and Commissioning Unit. The NSWCU was set up around three years ago and changed the way that local authorities apply for secure placements for their most vulnerable children. The local authority must fill out an application form on behalf of the child they seek to place, which is then uploaded to a portal. Every day, the local authority is informed via automated email of whether there are any placements available across England and Wales. The local authority may then send separate application form to apply for their child to be considered for the placement. The ultimate decision-making power lies with the individual units, all except one of which are private institutions (the one exception being run by a local authority).

A ‘distorted sellers’ market‘?

The NSWCU have no power to dictate that a secure unit must accept a particular child: this power is only vested in the Secretary of State for Education. There is, therefore, no ‘waiting list’, which HHJ Lazarus refers to as a ‘ distorted sellers’ market’, as the choice of which child is accepted is left to the individual secure unit. This has created the unintended consequence of some secure units refuse to take children who are more problematic than others.

HHJ Lazarus notes that some units may have a legitimate aim for refusing to accept a child, such as there being a conflict of gang affiliations with children already accommodated within the unit (which occurred in Re F). However, with HHJ Lazarus citing, at one point, 35 children waiting for one of just 90-beds nationwide to become available [22], the situation is undoubtedly desperate. HHJ Lazarus reminds us that the crack in secure application process allows for a needing child to be repeatedly rejected for a placement. The legislation in its current form allows units to ‘pick and choose‘ [24; 49] which children the units are willing accept, which ‘makes a nonsense of the immediacy of the safeguarding and need identified [49].

HHJ Lazarus reaches the tragic conclusion that this particular child was not ‘not so exceptional‘ [44] to warrant the making of a s.25 order where no placement is available. Sadly, she also concluded that ‘the very lack of placements and queuing for a placement and the filtering out of difficult cases by the secure units cannot be factors treated as making O’s case exceptional‘ [42].

Spot-purchasing beds

One very short-term option for roughly 72 hours is that the local authority may ask the Youth Justice Board (the Ministry of Justice section responsible for allocating beds to children coming to Young Offenders Institutions via the criminal as opposed to care route) if they can ‘spot-purchase’ a bed for the young person in question. This option is often dismissed as it does not provide stability, but it can be a lifeline in circumstances where there is no other option.

Where to from here?

It is unclear whether Parliament intend to do anything about the lack of secure placements, the funding available to create new placements or the uncomfortable sellers’ market that requires society’s most vulnerable teenagers to bid for placements to secure their safety, a process in which they might never be successful. Judges are repeatedly sending their judgments to the Secretary of State for Education and in Re O, to the Secretary of State for Communities and Local Government and the Children’s Commissioner for England. It remains to be seen as to whether the flurry of judgments sent to these government departments changes the helpless circumstances in which some children and local authorities find themselves when applying for a secure placement for a child.