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Re B (Secure accommodation: Inherent jurisdiction) (No. 1) [2013] EWHC 4654 (Fam)

Application by local authority for a secure accommodation order under the inherent jurisdiction of the court in respect of a 17 year old girl. Leave granted to the local authority to apply for relief under the inherent jurisdiction.

The local authority applied for a secure accommodation order under the inherent jurisdiction in respect of C. C was 17 years of age at the time of the application and it was contended by the local authority that C was exposing herself to significant risk, was using drugs, consuming alcohol, and was at significant risk of self-harm. At the time the proceedings were issued it appeared that she was homeless, having been excluded by the YMCA, where she had been living. C had lived with her grandmother under a residence order for much of her childhood. C had a daughter, GI, who was born in December 2012, when C was aged 16½.  On 9 July 2013 care and placement orders were made in relation to G. 

The court had acceded to the local authority's application on two previous occasions. The application came before HHJ Wildblood QC sitting as a deputy High Court judge who questioned the jurisdiction of the court to make such orders. After hearing extensive legal argument the judge acknowledged that this was "an extraordinary case" as a result of factors which included: (1) C's age; (2) that she had herself had a child; (3) that, at the time these proceedings started, she was not in local authority accommodation or subject to any other statutory scheme relating to her; and (4) the reported degree of vulnerability that she bore.

The court considered the provisions of section 100 of the Children Act 1989 ("the Act").  Subsections (1) and (2) provide as follows:

"(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2) No court shall exercise the High Court's inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."

The judge accepted that an order making C a ward of court, but granting custody of her to the local authority (as previously ordered) was inherently contradictory. The judge was troubled by the question of whether it could be said that C was a looked after child within the terminology of the Act at the time of the initiation of the proceedings and the implications of this. The local authority conceded that C was not a looked after child at the relevant date and further it could not be said on the facts of the case that the local authority was exercising a duty under section 20(3). The implications of this were therefore not adjudicated upon and the application was argued solely in respect of the issue of whether the court, under its inherent jurisdiction, could direct the detention of a minor in secure accommodation. 

The judge considered the decision of Wall J in Re C [1997] 2 FLR 180 and  Re PS (An Adult) [2007] EWHC 623 (Fam), in which Munby J (as he then was) considered the extent of the wardship jurisdiction and stated that a judge exercising the inherent jurisdiction of the court has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit insofar as the exercise of the inherent jurisdiction was compatible with the requirements of Article 5 of the European Convention.

The judge also considered the case of Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526 which specifically considered the interplay between Article 5 and s25 of the Children Act 1989 (the section relating to secure accommodation orders). HHJ Wildblood QC acknowledged that any application must also be Article 6 and Article 8 compliant and for a deprivation of liberty to be authorised the action of the public authority (here the court) must be demonstrated to be: in accordance with the law; necessary for the protection of the rights and freedoms of C; and proportionate. In this regard practitioners' attention is drawn to the recent Supreme Court decision in respect of the issue of deprivation of liberty in P&Q v Surrey and P v Cheshire West [2012] UKSC 68.

The judge accepted the submission that the inherent jurisdiction of the High Court is theoretically limitless and in circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child (with the exception of the requirement that the child is looked after by the local authority), it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation. The court also accepted that the guidance and the authorities suggest that where the wardship court does exercise that jurisdiction, it must do so in a way that is compatible with the limitations imposed by statute; for example any order made should not be for a greater duration than that proscribed by the Act. 

In these circumstances leave was granted (as required by s100(3) of the Act ) to the local authority to apply for relief within the inherent jurisdiction The judge did not consider the merits of the application for C to be placed in secure accommodation and his decision in this regard is found at Re B (Secure accommodation Order: Inherent jurisdiction) (No 2) [ 2013] EWHC 4655 (Fam).

Summary by Alison Easton, barrister, Coram Chambers
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IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child and members of her family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. It should be referred to as Re B (Secure accommodation: Inherent jurisdiction) (No. 1).

Neutral citation: 2013 EWHC 4654 (Fam)

Claim No: TA13P00096

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
  
Bristol District Registry,
Bristol Civil Justice Centre,
Redcliff Street,
Bristol BS1 6GR

Monday, 16 September 2013

BEFORE:

HIS HONOUR JUDGE WILDBLOOD QC

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BETWEEN:

A COUNTY COUNCIL
Applicant

- and -

B
Respondent

- - - - - -

MISS S CAMPBELL QC appeared on behalf of the Applicant
MR J FARQUHARSON appeared on behalf of the Respondent.
MR K MORADIFAR appeared on behalf of Cafcass Legal.


- - - - -

J u d g m e n t

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Monday, 16 September 2013

J U D G M E N T
HIS HONOUR JUDGE WILDBLOOD QC:
1. This is an extemporaneous judgment given in circumstances of urgency. The case concerns C B, who is aged 17 (having been born on 28 June 1996).  The case involves a local authority, A County Council.  On 18 August 2013 that local authority issued these proceedings.  It sought a secure accommodation order under the inherent jurisdiction of the High Court.  It took that action because it contended that C was exposing herself to significant risk, was using drugs, was consuming alcohol, and was at significant risk of self-harm. 

2. At the time that the proceedings were issued it appears that C was homeless, having been excluded by the YMCA, where she had been living.  She had also, it is said, behaved aggressively and in a threatening way to her grandmother, with whom she had been living, to the extent that her grandmother left her own home.  C's mother is DB.  She was born on 25 September 1980 and is, therefore, now aged nearly 33.  The father of C is EF. Neither parent takes any part in these proceedings.  C's grandmother is J H, who was born on 9 June 1956. C lived with her grandmother under a residence order for much of her childhood.  The position of the grandmother is also not entirely clear, although I was informed that, at an earlier hearing before another judge, on 29 August, she expressed her objection to the continuation of the secure accommodation.  C has a daughter, GI, who was born on 16 December 2012, when C was aged 16½.  On 9 July 2013 care and placement orders were made in relation to G. 

3. Within the proceedings Mrs Diana Smith has been appointed guardian. She is very experienced.  She has appeared at this hearing through counsel, Mr Kambiz Mordifar, at the instruction of CAFCASS Legal.

4. This is a case that came before me on Friday 13 September 2013 for consideration of the renewal of secure accommodation orders that had twice been made in these proceedings.  The judge who had been managing these proceedings was on leave, and the case came before me in Bristol urgently.   Following the initiation of these proceedings, which in fact took place on 16 August, the learned judge made orders which included the following:

"1. C B (DOB: 28.06.1996) is made a ward of this court until 30 August 2013 at 5 p.m, and the court declaring that C is placed in the care, custody and control of the A County Council.

2. The court authorising A County Council to place C B, born on 28 June 1996, in secure accommodation at a Secure Accommodation Unit,  on the basis of a welfare secure placement until 30 August 2013 at 5 p.m.

3. There is permission for Dr Peter Yates' Report dated 22 May 2013 and the PAI report dated 6 May 2013 to be released into these proceedings and be provided to the Secure Accommodation Unit.

4. The court authorising the agents used by A County Council to convey C B (dob: 28.06.1996) to use reasonable force in order to convey her there.

5. The court authorising A County Council or the Secure Accommodation Unit to secure C B's attendance at any further hearings of these proceedings

6. Permission for Dr Peter Yates, on the instruction of A County Council, to undertake an updating psychiatric assessment of the mother."

On 29 August 2013 the learned judge, in effect, repeated those orders and directed that the matter should come before me in Bristol on 13 September. 

5. The matter came before me on 13 September. C attended that hearing and was plainly distressed about her circumstances. I raised at that hearing the court's jurisdiction to make orders, committing C to secure accommodation.  The issue of the court's jurisdiction was adjourned until today, when legal argument alone has taken place.  The issue before me today, therefore, is whether there is jurisdiction in the court to make a secure accommodation provision in relation to C.  If there is jurisdiction to make an order to that effect, the issues of merit will be considered at a later date. 

6. I have been greatly helped at this hearing by the submissions of leading counsel for the local authority, Miss Susan Campbell QC, counsel for C, the very experienced Mr Jo Farquharson of chambers in Exeter, and the equally experienced Mr Kambiz Moradifar of chambers in Bristol.  Each of them has spent a large amount of time over the weekend researching the points of law that arise.  So have I.  However, ultimately the argument was driven into a corner by the skill of Miss Campbell, and that led to a position where no party sought to dispute her analysis of the extent of the wardship jurisdiction and its availability, as a matter of principle, in relation to a child of C's age and circumstances.

7. This is undoubtedly an extraordinary case.  It is also one where, on paper, there is every reason to have grave concern for C.  The psychiatric evidence that has been prepared by Dr Yates and Dr Leonards ultimately concludes that C is of capable of detention under the Mental Health Act 1983.  There are various suggestions about her state of health, including a suggestion that C may have a conduct disorder, which Dr Yates thought has increased in severity. I make no adjudication, of course, in relation to that.  The anxiety about C's vulnerability and potential for harm is entirely genuine and requires analysis of fact at a subsequent hearing. The extraordinary circumstances of this case include, however, the following: (1) C's age; (2) the fact that she has herself had a child; (3) the fact that, at the time these proceedings started, she was not in local authority accommodation or subject to any other statutory scheme relating to her; (4) the reported degree of vulnerability that she bore.

8. The orders that were made in the X District Registry are undoubtedly orders that require the provisions of section 100 of the Children Act 1989 to be considered.  By subsection (1) and (2) of that section, it is provided as follows:

"(1) Section 7 of the Family Law Reform Act 1969 (which gives the High Court power to place a ward of court in the care, or under the supervision, of a local authority) shall cease to have effect.

(2) No court shall exercise the High Court's inherent jurisdiction with respect to children—

(a) so as to require a child to be placed in the care, or put under the supervision, of a local authority;

(b) so as to require a child to be accommodated by or on behalf of a local authority;

(c) so as to make a child who is the subject of a care order a ward of court; or

(d) for the purpose of conferring on any local authority power to determine any question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child."

Where a child is made a ward of court, custody of the child vests in the court.  Therefore, an order making C a ward of court, but granting custody of her to the local authority, is, I think, inherently contradictory.  Further, the provisions of paragraph 1 of the orders made in the X District Registry, by which care, custody and control were granted to the local authority, must, in the manner of their drafting, be exactly that which is intended should not be ordered by reason of section 100 of the Children Act 1989. The much more difficult points that have arisen and which have occupied my mind for much of the weekend are these: (1) whether it could be said that C was a looked after child within the terminology of the Children Act 1989 at the time of the initiation of these proceedings; (2) whether, absent an order granting care, custody and control of C to the local authority, it would be permissible for the inherent jurisdiction to be used for C to be made a ward of court, and for the court then to direct her detention in secure accommodation.  By section 100(3) of the Children Act:

"No application for any exercise of the court's inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court."

The issue of leave would not be a complicated one, and leave would have to be given, and would be given, if that jurisdictional power existed. 

9. I will deal with those two points in turn.  The Children Act provides in section 20(3) as follows:

"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."

C was 17 at the time these proceedings arose.  Under section 22(1) of the Act it is provided that:

"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 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."

That provision is important in relation to secure accommodation, because by section 25(1) of the Act it is provided that:

"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 secure accommodation provided for the purpose of restricting liberty unless it appears…"

The focus of section 25 therefore relates to children who are looked after by the local authority.  Could it be said that at the time these proceedings were started, C was looked after by the local authority?  There is a distinction to be made, of course, between section 20(3) and section 20(5). 

10. The case of Re G [2000] 2 FLR 259 considered the provisions of section 20(5), but also went on, in the judgment of Thorpe LJ, to say on the facts of that case as follows:

"After all, 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 to do so.  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 subsection (3). I would myself think that there is more here than simply material to create the discretion under subsection (5)."

11. Therefore, 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.  All the parties before me have accepted that C should not be regarded as a child who was accommodated by the local authority when the proceedings started.  The fact is she was not living in local authority accommodation, and had not been doing so beforehand.  I have to say that my own mind remains open as to whether a local authority, exercising its duties under section 20(3) and making accommodation available to a child aged 16 or 17, is not then in a position to contend that the child is looked after by them, having thought about this quite carefully over the weekend.  I have considered, for instance, whether a parent keeping rooms available for children at boarding school are not providing accommodation for the children even though they do not use it, or whether adults who keep rooms available for elder parents in their home are not also providing accommodation for those elder parents, for instance if the elderly parents need to remove themselves from their own homes.  Further, it could not be said that a local authority ceases to provide accommodation for a child if the child runs away.  So I think this is somewhat more complex than perhaps meets the eye, and I was prepared to listen to submissions in relation to it.

12. The position would be more complex under that section because of the provisions of 20(7) and (8) of the Act.  They provide as follows:

"(7) A local authority may not provide accommodation under this section for any child if any person who—

(a) has parental responsibility for him; and
(b) is willing and able to—

(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
objects.

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section."

13. The grandmother's position was therefore quite important in relation to that, because, as a person with a residence order, it may well be that she had parental responsibility under section 12 of the Children Act 1989, depending on the circumstances in which that order had been made. By section 25(9) of the Act it is provided that:

"This section is subject to section 20(8)."

14. That whole arena of statutory considerations under sections 20, 22 and 25 were not argued as the basis for the jurisdiction to make secure accommodation in this case, and indeed on behalf of the local authority, and very helpfully, Miss Campbell took a position which was that it was not contended that the local authority was accommodating C at the time of the initiation of the proceedings, and further it could not be said on the facts of the case that the local authority was exercising the duty under section 20(3).  Therefore, I mention those points to indicate that I have considered them with some care, but I do not think they are directly raised in these proceedings.

15. The case therefore has been argued on the basis that, under the inherent jurisdiction of the court, the court can direct the detention of a minor in secure accommodation.  That is a point upon which Miss Campbell has done some considerable research, and has finally persuaded me, and indeed the other advocates, that her submission on this point is correct.  It is a demonstration of what skill and hard work can produce. 

16. There is case law that of course needs to be considered.  I have looked at the decision of Wall J in Re C [1997] 2 FLR 180.  That case related to the detention of a minor in a clinic.  The facts of the case were, therefore, essentially different.  The learned judge however had to consider whether the clinic concerned was secure accommodation, and concluded that it was not.  The headnote to the case reads as follows:

"In exercising the court's inherent jurisdiction over minors, the test to be applied  by virtue of section 1 of the Children Act 1989 was whether or not the order sought  was in the minor's best interest.  There was no doubt in the present case that the  treatment offered by the clinic was appropriate to C's needs and that detention was  an essential part of the treatment and therefore that the order fulfilled that test. C's  objection to the order, though a matter to be considered, could be overridden for  the same reason, particularly in view of the psychiatrist's opinion that she was  unable to weigh treatment information and accordingly lacked the capacity to give  valid consent or refusal to the treatment proposed.

The court's powers under the inherent jurisdiction were not ousted by the statutory  scheme laid down by Parliament in section 25 of the Children Act 1989 and  regulation 7 of the Children (Secure accommodation) Regulations 1991, because  all the evidence as to its regime demonstrated that the primary purpose of the clinic  was to achieve treatment, and that the restriction of liberty was only incidental to  that end and therefore that the clinic was not "secure accommodation" within the  meaning of the Act and the regulations.

Accordingly, this was a proper case for the exercise of the inherent jurisdiction. In  making an order under that jurisdiction the court would have regard to the  scheme  laid down by Parliament in the Act so as to ensure that the rights and  safeguards provided for the child by section 25 were available and would extend  the period of the order made at the previous hearing to a date not later than a  specified date."

Therefore, that case is one of some value on this point, but is not determinative of it.  Specifically in relation to secure accommodation, Wall J said this:

"C is not a child who is, or who ever has been looked after by a local authority.  She has never been in care, nor has she been provided by the local authority with accommodation within section 22(1) of the Children Act.  The local authority is not funding the current placement at the clinic. That, however, is not the end of the matter. By regulation 7 of the Children (Secure Accommodation) Regulations 1991, section 25 applies to children who are accommodated by health authorities."

He went on to consider that.  He went on to say:

"The use of the words 'application to the court under section 25... shall... be made only by...' clearly limits the persons or bodies who may make applications for secure accommodation orders, and thus restricts the powers of the court to make such orders.  It follows that if (1) the clinic is secure accommodation and (2) falls within the category of persons set out in either limb of regulation 2 of the Children (Secure Accommodation) (No 2) Regulations the inherent jurisdiction of the court is ousted and for C to be detained in a clinic, an application under section 25 of the Act will need to be made pursuant to the regulations.  I have to say that I find the regulations difficult to construe. Mr Munby conducted a detailed analysis of the regulations in the skeleton argument. I do not propose to repeat that exercise in this judgment, helpful as it was.  The critical question seems to me to be, is the clinic secure accommodation?  If it is, then the question of the construction of the regulations and their application to the instant case must be addressed.  But, if it is not, detention in the clinic is outside the statutory scheme and the major inhibition on the use of the inherent jurisdiction disappears."

17. In the course of argument, Miss Campbell considered that point, and then went on to refer me to the case of Re PS (An Adult) [2007] EWHC 623 (Fam), in which Munby J (as he then was) considered the extent of the wardship jurisdiction and said this:

"Is there power to detain?
16. It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit. It is equally clear that the court's powers extend to authorising that person's detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there... 

17. So the jurisdiction is clear. How should it be exercised?"

Munby J (as he then was) went on to say:

"18. Detention in the sense in which it is here being used will inevitably involve a "deprivation of liberty" as that expression is used in Article 5. Since the court is a public authority for this purpose…any exercise of its inherent jurisdiction must…be compatible with the various requirements of Article 5."

18. The interplay between Article 5 of the European Convention and the secure accommodation provisions has been considered by the Court of Appeal in the case of Re K (Secure Accommodation order: Right to Liberty) [2001] 1 FLR 526.  Article 5 provides, insofar as relevant, as follows:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law...

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority."

The term "educational supervision" has been given a broad definition within the case of Re K (to which I have already referred), and secure accommodation of the sort that arises in this case would not offend the provisions of Article 5, as long as it is demonstrated that it is for the purposes of educational supervision as defined in that case.  The consideration of the Convention does not end at Article 5 however.  Article 6, of course, provides the right to a fair trial. C is represented at this hearing very ably by Mr Farquharson, and there has been an open and full debate about the merits of the case and the legal jurisdiction for the application. There is no suggestion of unfairness in the trial process.  Article 8 of the European Convention is also engaged.  It provides that:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary…for the protection of health or morals, or for the protection of the rights and freedoms of others."

I have omitted certain parts of the Convention Article where they do not bear relevance to this case.

19. The right to respect for one's private and family life must bear with it a right not to be detained in secure accommodation.  Secure accommodation can only be justified on a number of legal bases, that amongst them includes the provisions of Article 8(2).  For Article 8(2) to be satisfied, the action of the public authority, here the court, must be demonstrated to be in accordance with the law; secondly, necessary for the protection of the rights and freedoms of C; and, thirdly, proportionate.  I remind myself, of course, that secure accommodation involves the deprivation of liberty, and thus the liberty of the subject is engaged, and it is also one of the most draconian orders that can be made in relation to the placement of a child within the available armoury of the court.  Therefore, very serious issues indeed arise under this provision, and there has to be strong and legal justification for intervention under the secure provisions.

20. The position that has ultimately been achieved at this hearing through the diligence of counsel is that the inherent jurisdiction of the High Court is theoretically limitless.  In circumstances where the statutory code under section 25 is satisfied in relation to a 17-year old child, with the exception of the requirement that the child is looked after by the local authority, it is open to the court to exercise its inherent jurisdiction to direct that a child be detained in secure accommodation.  I accept Miss Campbell's submission, on reflection, that the guidance and the authorities suggest that where the wardship court does exercise that jurisdiction, it must do so in a way that is compatible with the limitations imposed by statute.  But the existence of the jurisdiction to make orders detaining children under the inherent jurisdiction is now established in argument before me, and therefore I conclude, as a matter of law, that it is permissible to order that a ward of court be detained in secure accommodation.  The individual facts of individual cases have to be considered, and I am not, by this decision, indicating any conclusions about whether C should be further detained in secure accommodation. That will be for another day.

21. Plainly, when applying the inherent jurisdiction in this arena, the principles behind section 25 of the Children Act 1989 must be applied.  It could not be right for orders to be made of a greater duration than that proscribed by the Act under the inherent jurisdiction.  I therefore intend, until the case comes back, for there to be an interim order for C to remain detained in the secure accommodation where she is now.  That must be regarded as an extraordinary solution to what is quite plainly an extraordinary case, and I very much hope that it will be able to identify an alternative way of making provision for her welfare. 

22. I should end by saying that during course of argument the decision of the Court of Appeal in De L v A Local Authority & Others [2012] EWCA (Civ) 253 was considered by all counsel, and the conclusion was reached that that authority did not detract from the effect of the dicta in Re PS (An Adult).

23. MR FARQUHARSON: My Lord, may I just raise one small matter.  You have mentioned, I think three times, that your order is that C should be detained in secure accommodation.  I think this word detained probably came from my skeleton argument. I used it, and re-reading section 25 it does not refer to detaining a young person, it refers to placing a young person in secure accommodation. I would not want the wrong message to go to the unit, because of course sometimes they like to use their discretion for the young person to go out and about, or whatever it may be, according to their own assessments.  So may I invite you to---

24. HIS HONOUR JUDGE WILDBLOOD: Thank you very much.  In those circumstances my judgment shall erase the word detain.
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