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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 >> M (A Child : secure accommodation order) (Rev 1)  EWHC 3021 (Fam) (23 November 2017)
Cite as:  EWHC 3021 (Fam),  1 FLR 1398
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Strand, London, WC2A 2LL
B e f o r e :
|In the Matter of M (A Child)|
Ms Goodman (instructed by Fylde Law) for the Mother
Ms Susan Grocott QC and Ms Rebecca Gregg (instructed by AFG Law) for the Child
Hearing dates: 22nd November 2017
Crown Copyright ©
Mr. Justice Hayden
i. M was born on 26th October 2002 and is now aged 15 years. She has exceptionally complex needs and extreme behavioural problems, the background to which is not fully understood despite the length of time various professionals with a range of expertise have been involved. It is however clear she and her siblings have very distorted views of relationships, family dynamics, and the use of violence and aggression to 'problem solve';
ii. She is the daughter of parents who together have eight other children which will not be named in this Judgment;
iii. The family have been known to social care since 2000 and subject to three child protection plans due to emotional harm and neglect. The care provided to each of the children by their parents fell far below an adequate standard and each one of the children bears the emotional scars of their experience;
iv. It is only during the years since their reception into the local authority's care that more information about their lives with their parents has very gradually emerged. However the true extent of the parental failings and abuse, and consequent reality of the children's lives in their parents' care, remains unknown, even after 7 years in local authority care;
v. It is known that by the time of the Police Protection Order (26th October 2010 M's eighth birthday) the children had each witnessed very severe physical and verbal abuse between the parents, they were locked in their bedrooms for long periods by using wires to secure the doors, they had to wear nappies at night irrespective of their ages, their older half siblings were abusive to the children, the parents subjected the children to physical and emotional abuse, the parents abused drugs and neglected every aspect of their children's welfare needs. It is thought that M, despite her tender age, was expected to care for her younger siblings;
vi. Due to the complexity of care planning for these children, twenty three months after the proceedings were issued, final care orders were made on 17th September 2012 by His Honour Judge Appleby. The care plan for the youngest three children was adoption, and long term fostering for the older siblings in separate placements;
vii. Placement for adoption was not achievable for the youngest siblings, because of the magnitude of their individual needs which have emerged since their reception into care. It remains the position that the youngest two, although placed together with committed foster carers, cannot be left alone together because of their aggression;
viii. All of the children have presented with emotional and behavioural difficulties which have manifested themselves in difficulties forming and maintaining any relationships (adult, children and siblings), extreme aggression and violence to carers and other children;
ix. Since her reception into care M, and indeed her younger siblings who were placed separately to M, suffered a succession of placement breakdowns as a result of difficulties managing their behaviour. At the time of their reception into care the youngest children were just thirteen months, two years five months and three years nine months. The outcomes for those children in particular perhaps underscore the importance of the care children receive in their early months and years;
x. All the siblings have required a high level of oversight and scrutiny in formulating plans and reacting to the fluctuating situations for each of them by reason of their behaviour.
xi. A number of experienced professionals across various agencies have been involved in M's care planning. Dr. Kenny Ross, Consultant Adolescent Forensic Psychiatrist, reported in July 2017, there is "no evidence to suggest that M was suffering from any serious or enduring mental illness such as schizophrenia or major depressive disorder. She has experienced significant early trauma and her difficulties were seen as arising from these traumatic experiences and attachment difficulties. She is reported to have experienced neglect, emotional abuse and sexual abuse. She was seen as fulfilling the criteria for 'other mixed disorder of conduct and emotions';
xii. Dr. Rachael McCormick, Child Psychologist, initially assessed M during the care proceedings she says 'poor engagement… has limited the extent to which individual assessment of her has been possible', and further noted that she may be "resistant to investing in a therapeutic relationship". When Dr McCormick was asked to provide further assessments of M and her siblings she said in August 2012 she did not consider it appropriate at that stage to directly assess her, and again in May 2014 found that it was inappropriate to undertake a direct assessment of her. Sadly M's poor engagement has been a persistent theme during her time in care;
xiii. The early trauma she has suffered causes her to behave in an extremely aggressive manner towards others and property and has been present throughout her time in care. By way of example, at the age of 8 she threw chairs in her classroom, knocked over tables and harmed another child and in another incident had to be restrained by two adults. Most recently on 13th November 2017 and 17th November 2017 where she seriously assaulted female members of the team caring for her who each required medical attention. Over the years she has caused significant injuries to staff and other looked after children, including a broken nose, broken fingers, black eyes, gashes to the head, scratches, pushed a staff member down the staircase and pulled hair out. M has also used household items as weapons;
xiv. At times her behaviour regresses to that of an infant and on occasion she has been sexually aroused during incidents particularly when she has been restrained;
xv. She has been known to the police since she was 10 (March 2013) and to the criminal justice system, having a criminal record for various assaults. In her report dated 25th July 2017, Lisa O'Hare, social worker with Wigan YOT, states, "It is my assessment that M is likely to become a dangerous young woman if she does not receive appropriate specialist care";
xvi. Her most recent convictions were on 12th October 2017 when she was sentenced to a Youth Rehabilitation Order for 12 months with Supervision in respect of nine counts of s39 assaults and one count of criminal damage. Four section 39 assaults took place in June and July, two in her placement on 13th August 2017 and three on 20th August 2017. M was due to attend the youth court last week but refused and the case, at the request of the YOT worker, was adjourned rather than a warrant being issued for her arrest;
xvii. The YOT worker, Rebecca Haworth (High Risk Youth Justice Worker), has spent time trying to build a positive relationship with M to address her offending behaviour, and discussed activities she may be interested in. Local community projects are being explored which are focused on M's expressed wish to work with animals. To date she has complied with the court order;
xviii. Significantly the triggers for her violence and aggression remain largely unknown. It is thought she functions at around the age of an eight year old, and in June 2011, Dr McCormick noted 'significant weaknesses…. in her cognitive functioning';
xix. These children are the most complex this local authority has ever had to care for. It is unnecessary to say that the children are the most vulnerable and needy in our society.
Use of accommodation for restricting liberty.
(1)Subject to the following provisions of this section, a child who is being looked after by a local authority [F1in England or Wales] may not be placed, and, if placed, may not be kept, in accommodation [F2in England] [F3or Scotland] 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.
"'It scarcely needs to be said that restricting the liberty of a child is an extremely serious step, especially where the child has not committed any criminal offence, nor is alleged to have committed any criminal offence. It is for this reason that the process is tightly regulated by the Children Act 1989 in the way I have set out, but also in the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No.2) Regulations 1991 . The use of s.25 will very rarely be appropriate and it must always remain a measure of last resort. By this I mean not merely that the conventional options for a child in care must have been exhausted but so too must the 'unconventional', i.e. the creative alternative packages of support that resourceful social workers can devise when given time, space and, of course, finances to do so. Nor should the fact that a particular type of placement may not have worked well for the child in the past mean that it should not be tried again. Locking a child up (I make no apology for the bluntness of the language, for that is how these young people see it and, ultimately, that is what is involved) is corrosive of a young persons spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution'. "
considered Secure Accommodation Orders more generally, see Re. W  4WLR 159. In the light of exchanges with counsel however, it may be helpful to reprise some of those earlier points:
"(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) 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;
(5) 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."
"As I have mentioned, this passage, in my view, indicates that the court, when making a secure accommodation order, must itself decide whether the s.25(1) criteria are met, but, in my view, it does not indicate that the court should decide the welfare issues relating to the duty to safeguard and promote the welfare of a child; rather the passages indicate that the court should assess such welfare issues on the basis that the local authority is the decision-maker and, thus, on the basis whether a placement of a child in secure accommodation is within the permissible range of options open to a local authority exercising its duties and functions to promote and safeguard the welfare of a child who is being looked after by it. Such a child may be one who is being provided with accommodation by the local authority or, as in this case, a child in respect of whom a care order has been made."
i. M has always been prone to violent outbursts and they have reached a level whereby she has injured staff on multiple occasions and will potentially injure herself. The injuries by way of example include, broken noses, fingers, significant bruising, use of weapons and use of household implements as weapons;
ii. the local authority has tried numerous strategies to care for her over the years. In addition to a number of foster placements, M has had eleven different residential placements which have lasted between three days to five months to a maximum of twenty four months. Each one has broken down due to M's violent behaviour and the placements inability to manage this. None of the placements have succeeded in addressing her extreme behaviour;
iii. from her reception into care in October 2010 and despite an array of professional involvement it has not been possible to determine the triggers for such violent behaviour;
iv. the only type of placement M has not experienced is a contained environment;
v. M already has a significant criminal record for violence (being known to the police since she was 10) she is therefore at significant risk of detention through the criminal justice system. A welfare bed can be managed in conjunction with a local authority, unlike a criminal justice bed.
"…"To say the current situation in England and Wales for children with [X]'s (it is accepted unusually high) level of needs is of concern is perhaps an understatement. This is a child who is subject to a care order and who is accordingly owed support by the local authority pursuant to its duties to her as a looked after child. This is also a child who has significant mental health and emotional issues, which make her behaviours both dangerous and uncontrollable. More than this, she is highly vulnerable. Despite all of these factors, she has been placed in a situation where weeks and months have gone by with there being no placement available for her countrywide … The provisions for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive, clinical environment is worryingly inadequate. One has to question what would have happened in this case had [X] not received a criminal sentence? Given the level of her behaviours, where would she have been placed? What provider would have accepted her given that secure units were unwilling to do so prior to her receiving a custodial sentence?" This child has fallen into a "gap" in the system. Her behaviours are so extreme that no residential or supported living placement sourced by children's services can meet her needs, whilst there is clearly inadequate provision from the NHS and health services of placements, which can manage her mental health needs. Her time at [ZX] has amply demonstrated that placement in secure accommodation cannot meet her needs and is inappropriate. "… This case has demonstrated the inadequacy of the current secure accommodation resources in England and Wales (leading to this local authority having to place in Scotland) and has now gone on to demonstrate the inadequacy of suitable provisions for children with high level of mental health issues, which necessitate assessment and treatment in a secure setting. Placements for vulnerable children and adolescents, be it within secure accommodation of mental health provisions, are a scarce resource.""