The deprivation of a child’s liberty

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The making of a secure accommodation order lies at the extreme end of the court’s powers. However, they are not uncommon. They are, in fact, fairly regularly used in relation to teenagers who put themselves in risky and harmful situations, apparently through choice. Such an application will usually arise following a period of time in foster care or residential accommodation. They will often involve teenagers who are the victims of sexual exploitation or who engage in alcohol and/or drug misuse.

The deprivation of a child’s liberty is something which family practitioners have, perhaps unavoidably, become hardened to. The case of Re W (A Child) [2016] EWCA Civ 804 is a timely reminder of some of the fundamental legal principles in respect of secure accommodation orders but also raises a number of ideological points with which many may feel sympathy but which ultimately did not persuade the Court of Appeal.

In this case, the child was rapidly approaching majority. In fact, at the time of the appeal, she was 17 years and 11 months’ old. So in this case, not only was the Court grappling with the most draconian of orders, but a child who only marginally fell within the Court’s jurisdiction and whose wishes were clearly against any form of secure accommodation. She had been beyond parental control for several years but remained at home until the age of 15 until she was accommodated by the local authority.

One key point for the appellate court was which subsection of section 20 of the Children Act 1989 the child had been accommodated under. It was argued for the child that she was accommodated under section 20(5) which permitted a local authority to accommodate a child in a community home ‘if they consider that to do so would safeguard or promote his welfare’. If this argument had succeeded, it would have precluded an application for a secure accommodation order pursuant to Regulation 5(2) of the Children (Secure Accommodation) Regulations 1991/150.

The Court of Appeal was not persuaded. It held that this was not a case where accommodation was provided merely to safeguard or promote the child’s welfare. It was a case where her welfare would be seriously prejudiced if she was not provided with accommodation. Her accommodation by the local authority therefore fell within section 20(3) which opened the door to an application for a secure accommodation order.

There are two criteria for the making of a secure accommodation. The first being that the child has a history of absconding, is likely to abscond from any other description of accommodation and, if they abscond, they are likely to suffer significant harm. In practice, this is very often used with children who do not stick to the rules of a residential placement, for example by breaking the curfew and returning late or many days later.

However, the Court of Appeal has reaffirmed the interpretation of the word ‘abscond’ in terms of escaping indefinitely from an imposed regime. The child disregarding the rules of the unit and absenting herself for limited periods did not satisfy the definition of absconding. Therefore, the first of the criteria was not available to the local authority.

This is likely to come as quite a surprise to many practitioners and courts alike. It will have a significant impact upon local authority applications in future as presently the majority are pursued on the basis of absconding behaviour.

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