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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> P, Re (Application for Secure Accommodation Order) EWHC 2971 (Fam) (12 October 2015)
Cite as:  EWHC 2971 (Fam),  PTSR 308
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B e f o r e :
|Re P (Application for Secure Accommodation Order)|
Miss Claire Howell for the child
The mother appeared in person
Crown Copyright ©
'with complex multiple psychopathology which seriously impact on her day to day functioning…P presents with multiple comorbidity. Whilst this clusters into a number of diagnostic groups of emotional disorders (obsessive-compulsive disorder, anxiety disorders, recurrent depressive disorder) and psychotic disorders, most of them do not reach formal diagnostic criteria. The cumulative impact on P's emotional and social functioning on a day to day basis is however significant and very impairing indeed. He psychosocial disability as a result is moderate to severe…There are at this stage two clusters that are more convincing in terms of diagnostic validity. These are emerging borderline personality disorder (a form of an emotionally unstable personality disorder) and post-traumatic stress disorder.'
'a pattern of marked impulsivity and instability of affect, interpersonal relationships and self-image. The pattern is present by early adulthood, usually emerges in adolescence, and occurs across a variety of situations and contexts. Because a personality disorder is a pervasive, enduring and inflexible pattern of maladaptive inner experiences and pathological behaviour, there is a general reluctance to diagnose personality disorders before adolescence or early adulthood. However, without early treatment symptoms may worsen. Hence early recognition of this pattern is very important.'
'1. P is currently on an adequate pharmacological treatment for her Post Traumatic Stress Disorder symptoms.
2. There is no evidence of a serious and enduring mental disorder and as P has been extensively assessed by mental health services, and as if admitted to a mental health bed she is likely to learn further self-harm strategies, and this will prevent her from acquiring the cognitive and social skills necessary to be able to function as an adolescent, I am not recommending another admission to an inpatient mental health bed.
3. In my opinion P requires a long term placement with the capacity to offer a secure environment that could prevent her from absconding and could offer one to one supervision 24 hours a day for periods of time, in which P could access education and therapy. P is a vulnerable young person and due to the risk of absconding, when she is likely to suffer significant harm or injure herself, I would recommend that the Court considers a Secure Accommodation Order (Section 25 of the Children's Act 1999 (sic)) for P.'
'Given P's high risk mental state, our recommendation is that should [she] attempt to leave hospital and not be amendable to reasonable persuasion and negotiation, that she would need to be detained against her wishes'.
It is not entirely clear whether he was suggesting that a secure accommodation order should be sought or that P should be compulsorily detained under s.3. Dr Y did, though, go on to say that,
'An open ward inpatient mental health unit is not a suitable placement for her due to her level of risk to self and others. However, if this is the only option available, I believe it would be in P's best interest to seek a local Tier 4 unit'
'(1) An application for admission to hospital of a minor who is a ward of court may be made under this Part of this Act with the leave of the court.
(2) Where a minor who is a ward of court is liable to be detained in a hospital by virtue of an application for admission under this Part of this Act or is a community patient, any power exercisable under this Part of this Act or under section 66 below in relation to the patient by his nearest relative shall be exercisable by or with the leave of the court.'
Late in the afternoon of 29th September I granted leave to an application being made for P to be compulsorily detained under s.3. P was compulsorily detained later that day. It was on that basis that on 30th September the local authority's application for a secure accommodation order was adjourned generally.
'158. It is clear that there are major problems with access to Tier 4 inpatient services, with children and young people's safety being compromised while they wait, suffering from severe mental health problems, for an inpatient bed to become available. In some cases they will need to wait at home, in other cases in a general paediatric ward, or even in some instances in an adult psychiatric ward or a police cell. Often when beds are found they may be in distant parts of the country, making contact with family and friends difficult, and leading to longer stays.'
Secure accommodation orders
(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears —
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
(2) The appropriate national authority may by regulations—
(a) specify a maximum period—
(i) beyond which a child may not be kept in secure accommodation without the authority of the court; and
(ii) for which the court may authorise a child to be kept in secure accommodation;
(b) empower the court from time to time to authorise a child to be kept in secure accommodation for such further period as the regulations may specify; and
(c) provide that applications to the court under this section shall be made only by local authorities.
(3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.
(4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.
(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970 apart from functions under sections 17, 23B and 24B.
(2) In subsection (1) "accommodation" means accommodation which is provided for a continuous period of more than 24 hours.
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
(5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.
Whether a child aged over 16 is accommodated under s.20(3), s.20(4) or s.20(5) is an issue of fact for the determination of the court in the event that the parties are not agreed.
(10) For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983 or in respect of whom an order has been made under section 90 or 91 of the Powers of Criminal courts (Sentencing) Act 2000 (detention at Her Majesty's pleasure or for specified period).
(2) Section 25 of the Act shall not apply to a child–
(a) to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,
(b) in respect of whom an order has been made under section 43 of the Act (child assessment order) and who is kept away from home pursuant to that order.
'2. There has been some confusion in this case by counsel as to the scope of section 25. There need be none. The core principles seem to me clear, though worth restating:
(1) It is the essence of 'curtailment of liberty' rather than any particular, or designated, establishment which underpins these orders (see Metropolitan Borough Council v DB  1 FLR 567);
(2) Secure accommodation is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights incorporated into domestic legislation by the Human Rights Act 1998 (see Re K (Secure Accommodation Order: Right to liberty)  1 FLR 526 CP);
(3) The two limbs of s.25(1)(a) and (b) are to be read disjunctively and not conjunctively; that is to say either the criteria under (a) or (b) is sufficient. Both are not required (see Re D (Secure Accommodation Order No.1  1 FLR 197);
(4) It remains important to emphasise that there should always be a clear record of facts, when making an order under these provisions. Sworn evidence will always be necessary (see Re AS (Secure Accommodation Order)  1 FLR 103);
(5) When assessing the phrase "likely to abscond", the test is that applicable to the s.31 Children Act criteria, the so-called "threshold test". (see Charles J in S v Knowsley Borough Council  2 FLR 716);
(6) However, 'likely' in both limbs of that section must now, like the s.31 criteria themselves, be determined by reference to the clarification given by the Supreme Court in Re B  UKSC 33 and Re SB (Children)  UKSC 17, bearing in mind that it is not a permissible approach to find likelihood of future harm in the absence of findings predicated on actual fact;
(7) The court does not have power to make an order under s.25 in respect of a young person over the age of 16, but the order may be made prior to a child becoming 16, even if it extends beyond the child's 16th birthday; (Re G (Secure Accommodation Order) 2001 1FLR 259
(8) Section 25 is not a provision to which the paramountcy principle applies. Section 25 is under the framework of Part 3 of the Children Act 1989 and, therefore, concerned with the general powers and duties of a local authority in relation to children within its area. The general duty of a local authority which applies to promote and safeguard the welfare of the child is not the same as the paramountcy principle. Determining welfare, though, will be illuminated, as always, by reference to the s.1(3) criteria, the welfare checklist. In these cases 'welfare' will always weigh very heavily.'
'(21) …the question as to the basis of G's detention or accommodation once she attains the age of 16 is by no means open and shut. It may be that her history and circumstances are such that the local authority will be under a duty to provide accommodation for her rather than simply having a discretion so to do. It is not for us to decide, but at first blush I would tend to think it more likely that the history and circumstances would be sufficient to create a duty on the local authority to provide accommodation under subs (3).
'(22) I agree, and would only add this on the main point. The Official Solicitor through Mr Murdoch submits that the judge's secure accommodation order of 9 December 1999 could not lawfully have extended beyond G's sixteenth birthday on 27 December 1999. The judge in fact set the period running to 31 December 1999. The order was made under s 25 of the Children Act 1989, and Mr Murdoch's submission draws attention to reg 5(2) of the Children (Secure Accommodation) Regulations 1991, which provides that:
'Section 25 of the Act shall not apply to a child—
(a) to whom section 20(5) of the Act … applies and who is being accommodated under that section …'
(23) Section 20 prescribes circumstances in which a local authority either shall or may provide accommodation for a child.
(24) Under s 20(3) the local authority are required to provide accommodation for a child who has reached the age of 16 and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(25) Under s 20(5) the local authority may provide accommodation for any person who has reached the age of 16 but is under 21 in any community home which takes children who have reached the age of 16 if they consider that to do so would safeguard or promote his welfare.
(26) It is clear that the circumstances envisaged by subs (3) are more pressing, generally speaking, than those envisaged by subs (5), and that subs (5) can extend to persons up to the age of 21. It looks as if considerations such as these may explain the thinking behind reg 5(2).'
'11. …at the start of the argument today I questioned whether C should be regarded as a child who was being provided with accommodation in accordance with section 20(3) of the Act. If she was, then the matter would be simple and section 25 accommodation would be available in principle.'
Although the parties were agreed, and Judge Wildblood accepted, that CB was not being 'looked after' by the local authority, it is clear that if she had been accommodated under s.20(3) the court would have accepted that it had the power to make a secure accommodation order.