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Re B (Secure accommodation: Inherent jurisdiction) (No. 2) [2013] EWHC 4655 (Fam)

Order to continue a secure accommodation placement of a 17 year old pursuant to the inherent jurisdiction.

The case concerned an application by A County Council for a secure accommodation order in respect of CB, who was 17 years old.  For the background to the application and consideration as to the court's jurisdiction to make an order in the circumstances, see Re B ((Secure accommodation: Inherent jurisdiction) (No 1) [2013] EWHC 4654 (Fam).  The issue on this occasion was whether CB should continue to be detained in a secure accommodation unit.

As CB was not a looked after child, s25 of the Children Act 1989 was not available – the only method by which the issue could be considered was through the inherent jurisdiction of the High Court.

A psychiatric assessment concluded that CB had depression and a conduct disorder; however, the report concluded that was not suffering from a mental illness and she did not meet the criteria for detention under the Mental Health Act 1983. 

CB opposed continuing the order that she remain in the secure accommodation unit.  The local authority sought an extension of the order so that therapeutic work could begin and submitted that the only way to keep CB safe was for her to remain a ward of the court and in secure accommodation for a further 8 weeks.

A key issue was the application of Article 5 ECHR, preventing the unlawful deprivation of liberty, and Article 8 ECHR, the right to respect for private and family life.  Although s25 of the Children Act 1989 did not apply, the statutory principles were considered, as the local authority contended that if CB was kept in accommodation of any other type, she would be likely to injure herself or others.

The judge considered that Article 5 was engaged as a secure accommodation order involves a deprivation of liberty and that secure accommodation is a serious step which must only be taken as a last resort and with due recognition of the subject's liberty (R v Shayler [2002] 2 WLR 754 was applied). A secure accommodation order (whether made under s25 or under the inherent jurisdiction) is a plain invasion the subject's Article 8 rights, which can only be justified if it is legal, necessary and proportionate. 

An exception to Article 8 can be found in Article 5(1)(d), which permits detention of a minor by lawful order for the purpose of educational supervision.  Educational supervision is to be widely interpreted and, applying Re K (Secure accommodation order: Right to liberty) [2001] 1 FLR 526, goes far beyond school.  Further, being beyond the compulsory school age is not determinative as to whether a child is being provided with educational supervision.

Although CB was not looked after by the local authority for the purposes of s25, the conditions in s25 still needed to be applied by analogy – it cannot be correct for a looser test to be applied under the inherent jurisdiction than is applied under statute.  Whilst in the wardship jurisdiction, the welfare of the child is paramount, this must be considered in the light of the underlying principles of Article 5 and Article 8.

The court concluded that, although CB was not detainable under the Mental Health Act 1983, she was "at imminent and prevalent risk of causing herself and others serious harm" and that this risk was "foreseeable and highly probably to occur".  She was, in the broad sense of the words, receiving education supervision at the secure accommodation unit.  Further, the judge said that the pressing social need for her detention "plainly outweighs" her right to liberty, her detention in the Secure Accommodation Unit was "rational, fair, and not arbitrary", and the need for an order was demonstrated on the evidence.  "No less a provision than secure accommodation would suffice", there were no alternative arrangements available, and her welfare demanded that she remain in this placement.

As a last resort, the judge concluded that a further period in secure accommodation was to be ordered, for the shortest possible period that was proportionate in the circumstances (8 weeks).

Summary by Ariel Ricci, barrister, Coram Chambers
__________________________


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. 2).

Neutral citation: 2013 EWHC 4655 (Fam)

Claim No: TA13P00096

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


Tuesday, 24 September 2013

BEFORE:

HIS HONOUR JUDGE WILDBLOOD QC

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BETWEEN:

A COUNTY COUNCIL
Applicant

- and -

B
Respondent

- - - - - -

MISS M BARLOW appeared on behalf of the Applicant.
MR DAVIS appeared on behalf of the Respondent.


- - - - -

J u d g m e n t

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Tuesday, 24 September 2013 

J U D G M E N T
HIS HONOUR JUDGE WILDBLOOD QC:
1. I am giving this judgment extemporaneously.  These are proceedings concerning C B, who was born on 28 June 1996.  She is therefore aged 17.  The local authority involved in this case is A County Council. On 18 August it issued proceedings which had in fact by then already come before the court. Thus, the formal issue of the proceedings appears to have been after the matter came urgently before the court in X in circumstances that I will describe.  The local authority contended that C was exposing herself to significant risk, and was using drugs and consuming alcohol.  It also contended that she posed a significant risk to herself and others of serious harm. At the time that the proceedings were issued, C was homeless, having been excluded by the YMCA, and also having been aggressive with her grandmother, with whom she had previously been living, to the extent that the grandmother had left her own home. 

2. C's mother is DB, who was born on 25 September 1980, and so she is now nearly 33.  C's father is EF.  He was born on 14 May 1980.  C's parents do not live together.  C's grandmother is JH, who was born on 9 June 1956.  C spent some parts of her childhood living with her grandmother under a residence order.  The other particular feature of this case is that C has a daughter, G I, 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. In the initial stages of the case, a Diana Smith was appointed as the guardian of C.  As a result of the legal process that has been followed, Miss Smith now serves as a reporting officer, giving assistance to the court on welfare issues. C has her own legal representation.  That legal representation has continued throughout the case, and Mr Davis has appeared today to represent C.  I have been told that there has been a suggestion by the Legal Services Commission that it may take the view that public funding should not be made available to cover Mr Davis' representation of C today. I was told by Mr Davis that the Legal Services Commission had apparently taken the view that the case was so overwhelming that the need for legal representation fell into doubt.  If that should be correct, that the Legal Services Commission has taken that view, it is, in my opinion, quite wrong for them to have done so. 

4. Section 25(6) of the Children Act provides that

"No court shall exercise the powers conferred by this section in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for the provision of representation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and having had the opportunity to do so, he refused or failed to apply."

For it to be even suggested that a 17-year old facing orders of the nature that arise in this case should not have legal representation is something that I find extremely difficult to understand, and cannot imagine as having any justifiable basis. I strongly recommend the Legal Services Commission look at its processes and consider the lack of wisdom in any suggestion that a young person of this age should not have proper and funded legal representation. As it is, however, Mr Davis has appeared and has argued C's case thoroughly and well.  Therefore, C does have legal representation.

5. The issue in the case is whether C should continue to be detained in a Secure Accommodation Unit.  For reasons that I will explain briefly later, the statutory jurisdiction under section 25 of the Children Act 1989 is not available, it having been conceded that C was not looked after by a local authority at the time of the initiation of these proceedings.  Therefore, the only method in which this issue could be litigated is through the inherent jurisdiction of the High Court. 

6. The proceedings arose because of the very sad background that C has endured.  During her childhood C experienced neglect and domestic abuse between the parents.  She experienced their misuse of drugs and alcohol, and she also experienced sexual interference at the age of 11.  At the age of 13 she was accommodated after an incident concerning her grandmother, with whom she had been living.  She discharged herself from local authority accommodation at the age of 16, and apparently went to live with her then boyfriend.  She was still 16 when G was born and went with G into Orchard House for a residential assessment on 21 December 2012. That assessment ended on 7 January 2013, after Miss B ceased to cooperate with it in circumstances that are described in the paperwork.  G was then placed with local authority foster carers separately from C.

7. C has made a number of threats to harm herself, and indeed to end her life, and on occasions has taken overdoses.  She has also associated with men who were believed the local authority to be involved with drugs and indeed to deal with drugs, and has involved herself with drugs.  She has admitted (D4) when speaking to Dr Yates, a psychiatrist, shortly before she was placed in secure accommodation, that she had been sharing her room at the YMCA with men who used drugs, and had herself been using drugs.  She was ordered to leave the YMCA, and on 14 August 2013 had been admitted to a Hospital after taking drugs and suffering from seizures.  Her use of drugs, it is said by the local authority, had been a long-standing phenomenon, and there are clear accounts of her having used drugs and other chemicals in the past. 

8. Before moving to the YMCA she had been living with her grandmother until the events that I have already described that caused her to leave that accommodation.  The chronology contains many references to the difficulties that have arisen between C and her grandmother on other occasions as well.

9. There has been a psychiatric assessment of C, most recently by Dr Yates, who is a consultant psychiatrist.  He concluded initially that she had depression and a conduct disorder. However, by his most recent report he has concluded that she does not suffer from a mental illness, or depressive disorder.  He thought that the conduct disorder that he had identified previously had increased in severity.  He reported that she does not meet the criteria for detention under the Mental Health Act 1983.  He stated that treatment approaches have little chance of making a difference, particularly within the community.  He said that he did not think that C would engage in any community-based attempts at treatment.  At D11 he went on to say as follows:

"Were Miss B to remain placed in secure accommodation, then this could present an opportunity to attempt some therapeutic work with her.  The security of being detained can, in itself, be therapeutic and used as a therapeutic tool.  Therapeutic work could comprise her having weekly or twice-weekly keyworker sessions and the input from a psychologist experienced in working with young vulnerable women with emerging personality disorders. While there are now established treatment programmes for this patient group, these require the patient to request and to be committed to such treatment, which is clearly not the case with Miss B. 

With regards to the prognosis of conduct disorder, a poor outcome is predicted by early onset, a wide-range and high total number of symptoms, greater severity and frequency of individual symptoms, pervasiveness across situations and associated hyperactivity.  Conversely, having only one area of problem behaviour such as aggressiveness alone has a good prognosis provided there are no problems in other areas, including peer relationships and educational achievements.  The presence or absence of a constellation of problems is what differentiates the two outcomes, but with regards to the prognosis of conduct disorder in this case, sadly I conclude that Miss B's presentation is associated with a less favourable outcome.  In my opinion, Miss B needs to be kept safe, as she is not able to keep herself safe.  Others are also at risk of her behaviour. I would therefore recommend that she remains within secure accommodation, because of the risk of significant harm which she would face were she not to be in secure accommodation. While I do not think that Miss B would intentionally seriously harm or kill herself, this might occur accidentally.  She is particularly vulnerable now having heard the outcome of the Family Court's decision that G be placed for adoption.  She is also at increased risk of developing a mental illness, although she does not currently suffer from any such illness.

With regard to the question of her being admitted to an adult psychiatric unit, Miss B is very clear that she would not do so voluntarily.  With regards to detaining her under the Mental Health Act, I cannot recognise any grounds to do so.  While she might benefit from such an admission, she is unlikely to be voluntarily admitted and an admission under the Mental Health Act is unlikely, unless she were to develop signs and symptoms suggestive of a mental illness."

10. These proceedings have been managed to date by another judge until they came before me last week. That Judge made a number of orders.  Firstly, on 16 August 2013, i.e. 2 days before the date of the initiating paper process of the proceedings, he ordered that C should be made a ward of court, and he placed her in the care and control of the local authority.  He then authorised the local authority to place C in secure accommodation at the Secure Accommodation Unit until 30 August, and he ordered Dr Yates to file an updated report.  On 29 August he continued those orders under 13 September, and directed that a hearing should take place before me in Bristol. On Friday 13 September the case came before me. I raised the question of whether the orders that had been made were lawful.  That issue had not been considered to any real extent previously, it appears.  Certainly no party was able to address me on the point that day.  I therefore adjourned the point for legal argument, and strongly recommended that all parties instructed specialist counsel.  On 16 September I varied the order.  I held, as a matter of law, that there is jurisdiction under the inherent jurisdiction to direct that a minor be detained in secure accommodation where there are exceptional circumstances meeting the requirements of Articles 5 and 8 of the European Convention on Human Rights, the underlying provisions of section 25 governing detention under the Children Act 1989, and where statutory detention under that Act is not available under the terms of the statutory scheme.  I directed that this hearing should then take place today to determine whether the detention should be continued.  There was very full and careful argument on 16 September by specialist counsel.  Open consideration was given as to whether it was intended that there should be on appeal on the point of law that arose. The decision that was reached was that there should be no appeal. I have made arrangements for a member of the Court of Appeal, Macur LJ, kindly to be available in the event that immediate action needed to be taken that day.  As it was, I was able to communicate with the Court of Appeal that their services would not be required on that point, having debated the matter with counsel in court.

11. The position now is recorded within the paperwork before me. I will refer to that paperwork, and then I will refer to the brief evidence that I have heard. 

12. Firstly, C has been kind enough to file a statement through the endeavours of Mr Davis.  In that statement she makes it plain that she opposes the application.  She says that she will be 18 in 9 months' time and that she is the oldest person in the Secure Accommodation Unit.  She is the only person accommodated there who is not detained following criminal offending, she says.  She goes on to say as follows:

"Due to my difficult childhood I have learned to live independently despite my young age.  I am confident in ensuring everyday independent tasks that independent living requires such as cooking, cleaning and ensuring that relevant administrative tasks are completed in a correct and timely manner.  In secure accommodation this element of independence is absent.  Meals are cooked for me, administrative tasks are completed by members of staff. This impedes my natural progression into adulthood which is contrary to my best interests. 

On 9th July 2013 the court made a placement order in respect of my daughter G I.  I have experienced feelings of worthlessness and despair since that date and prior to the making of the order, as I believe that I did not have a proper chance of having G returned to my care. I think about my daughter constantly, and it is very difficult to come to terms with my loss.  My feelings manifest themselves in different ways. I have difficulties in managing my anger.  I am very much aware of my anger issues, and I would like to undertake an anger management course.  In moments of anger, which are frequent, I make numerous threats towards myself and towards others. I do not carry out these threats.  I do not wish to end my life, despite sometimes feeling that there is nothing worth living for.  I need to be close to my family to help me rebuild my life following the loss of my daughter. In secure accommodation I am estranged from my family due to the distance and restrictions on telephone contact.  I cannot access the family support that I need to help me overcome this particularly traumatic period of my life.  Although I admit there have been moments when I have been overcome by anger and I have resorted to physical violence, these occasions are not frequent.  I refer to the CAMHS chronology which sets out that there had been only two occasions on which I used physical violence since G's birth and before I was accommodated at the Secure Accommodation Unit.  I deeply regret these incidents of violence. I am not a violent person, but I find it difficult to control my anger. I would very much welcome assistance in controlling my rage.  I am also a person who has difficulties in expressing my feelings. The intensity of my feelings is such that it is not easy to find words to communicate them. As a result, my intentions are often misinterpreted.  This is a vicious circle in which misinterpretation leads to further frustration. I am also a person who does not give trust easily. This is interpreted as unwillingness to engage with professionals. I find it difficult to give my trust because I have experienced betrayal and rejection in my childhood together with a number of traumatic events.  I am willing to engage with professionals.  I would however like to seek help in my own time.  In order for therapeutic work to be effective I need to be able to build trust in the professional assisting me and confide very painful experiences. I would not be able to do so in the context of obligation. I would therefore not be willing to engage with the therapeutic work as proposed by the Local Authority in secure accommodation. I would however be willing to engage in therapeutic work with family support. As the social worker pointed out in her statement, there is no reason why therapeutic work cannot be undertaken in the community. The social worker also points out that there is therapy available for young persons with emerging personality disorders in A. 

With regard to my lifestyle prior to being accommodated, I admit that I have taken drugs on a couple of occasions. I have used drugs as a way of coping with my depression.  I wish to point out, however, that this drug use is not on a regular basis. I have been admitted to hospital with seizures.  There have been occasions when I have had seizures without having taken any drugs.  Although I did associate with people who were probably unsuitable during the time that I lived at the YMCA, I wish to make it clear that I did not engage in sexual activity with men who attended my room. I certainly have never had sex with somebody in exchange for drugs.  I find that allegation offensive. I am not seeking to form a relationship with anyone at the present time. I am therefore not at risk of sexual exploitation. I would like to enrol on a course in college. I would very much like to train as a hairdresser. I am disappointed that I have not been able to start such a course and worried that I may have lost the opportunity to do so, as courses begin in September.

I have attended school regularly in the Secure Accommodation Unit and enjoyed returning to education.  I understand that the Secure Accommodation Unit may be able to arrange for me to commence a hairdressing course, but this has not yet been facilitated."

13. The social worker involved in this case, Gulena Suter, has helpfully prepared an updating statement for the purposes of this hearing.  In it she says this:

"Miss B is engaging in education and the Secure Accommodation Unit report that she is doing very well and attends from 9am in the morning until 2.45pm daily -she is studying a broad-based curriculum.  Miss B was awarded 'Student of the Week' for the week commencing 9th September 2013.  Miss B often spends time in the art room in the evening. 

What is working well and positives:  The Secure Accommodation Unit reports that Miss B continues to try to get along with her peers, and that she has been very helpful with a young person on the unit that has learning difficulties, assisting him in education. Further, Miss B was awarded Student of the Week.  Miss B also behaved protectively towards a young person who was being bullied (SW Chronology 06/09/13).  Miss B has at times she has been settled and has had positive days and evenings. (SW Chronology – 19.08.13; 20.08.13; 21.08.13; 24.08.13; 25.08.13; 26.08.13). 

Miss B has access to an advocate while at the Secure Accommodation Unit.

Miss B has been managing her behaviour on the unit, but gets frustrated at times with the Secure Accommodation Unit rules and feels that she should not be placed at the Secure Accommodation Unit with offenders."

The social worker then goes on to describe a number of incidents that have occurred at the Secure Accommodation Unit, where Miss B has behaved with violence or verbal abuse to others within the Lodge.  She refers to a meeting on 28 August 2013 which was a "Child looked after" review.  It was held by a wide-range of staff and professionals, and the cumulative view was that all involved were in agreement that Miss B needs to be protected from the risks that she poses to herself in the community and from significant harm.  It supported the continuation of her placement at the Secure Accommodation Unit. 

14. On 12 September there was an independent secure panel meeting. That is described by the social worker in her statement, but it is also described by Mrs Smith, the CAFCASS officer, in her statement.  Mrs Smith says this:

"I attended the independent reviewing panel meeting on 12 September at the Secure Accommodation Unit. Prior to the meeting I had the opportunity of meeting with C and found her to be very angry and not able to employ any self-regulatory behaviours, swearing and shouting, offensive threats, ('I will bite their f...ing throats out') being made towards anyone responsible for keeping her locked-up.  She was adamant that she felt she was being punished and that she was considered to be mad, when there is medical evidence (Dr Yates) indicating that she is not mentally ill.  I empathise with her about the pain that she is evidently suffering on the loss of her daughter G in the summer of 2013 (Placement Order made) – at which point she expressed a wish to be reunited with G and to be assessed again. She was advised that this was not possible.  C has reiterated that while locked up she will not engage with any therapy.  During the meeting she was reasonably 'together', although directing much anger towards the social worker.  However, at the end of the meeting, on hearing the decision C appeared to lose all control when she threw a chair across the room.  I felt that the chronology did not contain the more positive aspects of life in the unit, as suggested by the teacher present.  I suggested that the reporting needed to be presented in a more balanced way -this was agreed.  C has engaged well with the education programme and was praised for helping a younger, less able resident than herself.  It was felt that this should be explored more fully in terms of how she may be able to perform this useful role in a more formal way- this is to be considered, although not without its difficulty in terms of her unpredictable moods.  The chronology presented by the unit demonstrates the extent of her difficulty in socialising and managing relationships, both with fellow residents and with staff.  The panel agreed to implement my suggestion of a contact schedule to ensure that C had the opportunity of retaining links with her family and friends in readiness for her ultimate release into her local community. 

I am informed that on 16th September the SW took her MGM JH and her friend, Y to see C at the Unit. This was a successful contact, with her friend giving sensible advice about needing to cooperate and her grandmother expressing satisfaction that she thought the Unit was good, dispelling fears of it being akin to a prison. This contact is to take place monthly and in between there is to be telephone contact. As this has been successful, I would ask that the LA consider facilitating more frequent direct contacts for this young person.

The panel decided after much deliberation that C met the criteria for further detainment, citing the ongoing concerning behaviours and the fact that Dr Yates has recommended that this is necessary to keep C safe and to allow her the opportunity of accessing the much needed therapy.  Dr Yates' diagnosis of severe conduct disorder and emerging personality disorder has been accepted by the local authority in terms of identifying a suitable therapist, Dr Gina Cratchley, who will be able to commence work with C at the beginning of October and continue the therapy once back in the community.  A referral has been made to A Partnership in order that C might be considered suitable to access support by the Emerging Personality Disorder Team, who are in the process of considering her case (having spoken to the Lead EPDT today."

She concludes:

"I am, of course, concerned about whether C is lawfully placed, but I am also mindful of the risks she poses to herself and others if she were to be released prematurely.  I think it has not been helpful to C for the matter to be returned to court so often, giving her perhaps an indication that she might be released on each occasion. This does not assist in any settling in period.  I believe that C needs time to feel emotionally contained and I cannot see how this can be achieved without her being physically contained. This will allow the best opportunity to address the number of issues which are affecting her so negatively.  The pain she feels around the loss of her child is almost tangible, and she seems to need time to unpack those emotions and to reassemble them. I think that a period of 3 months in the unit would be reasonable and give C the best chance of change and during which time she will hopefully start to access the therapeutic support she so badly needs. I am reassured that the Secure Accommodation Panel will meet on a monthly basis to review the placement."

In relation to the consideration of other placements the social worker says in her statement as follows:

"Alternative non secure placements are being sought for Miss B as a contingency plan. Miss B's case has been taken to A County Council's Placement Panel on 27th August 2013, 3rd September 2013, 10th September 2013 and 17th September 2013 – there has been a search for a placement send out to care providers throughout the UK and, as of 20th September, no alternative placements have been offered -the parties and court will of course be updated if such a placement is identified.  However, currently the Local Authority does not have any alternative accommodation option for Miss B.  To date no family members have put themselves forward to offer care and accommodation for Miss B.  Currently to ensure that Miss B is safe, the Local Authority's view is that the only appropriate provision is for her to remain in secure accommodation.  It is the local authority's view that at this stage, Miss B should remain at the Secure Accommodation Unit for a further 8 week period. This would provide a period without further visits to court. The work with Dr Gina Cratchley as outlined in the social worker's third statement can begin, and it can be established whether Miss B will engage with this.  Dr Cratchley can begin work during the first week of October 2013, and therefore, if an 8-week order were made, Miss B would be at the end of that period, have undertaken approximately 6 weeks of work with Dr Cratchley and an assessment will be made as to the progress made by Miss B and the merits of that work continuing. In making this recommendation, the Local Authority also recognises that adopters may well be identified for Miss B's daughter G within this period.  There is considerable concern as to the likely negative impact that this will have upon Miss B -the court is referred to the information from Dr Lemmens at CAMHS in that regard and a possible escalation of her behaviour during this period which will need to be managed in as sensitive and safe way as possible."

The local authority, therefore, in the social worker's statement concludes that the only way to keep Miss B safe is for her to remain a ward of court and for her to remain in secure accommodation for that 8-week period.

15. I heard evidence from the team manager, Kim Grabham.  She has seen the statements of the social workers in the past and agrees with their contents, and she expressed her support for the continued detention of C in the Secure Accommodation Unit until 15 November.  She had spoken to the Secure Accommodation Unit this morning.  They said that C is attending education there, and appears to enjoy artwork.  She is finding it difficult to engage with other young people there. Every time the case comes before the court she packs her bags and plans that she would come back to a nearby town, although she does not have anywhere to live there.  There has been enquiry of independent providers of accommodation for C.  It is apparent that a room might be made available for C in Exeter. There is other accommodation that might be made available in Brislington in Bristol. These would be bedsit arrangements with community support, but, said Miss Grabham, it is plain that that would not be sufficient to meet C's needs.  She thought that C would be very unlikely to engage or remain in accommodation of that nature.  She accepted that C had been accommodated until her 16th birthday, and then discharged herself from local authority involvement. The question was therefore sensibly asked by Mr Davis: how can these proceedings be genuinely necessary when the proceedings were not started for another 14 months? Miss Grabham said that the attempts that had been made to assist C in the community following the cessation of her accommodation had been genuine and sustained, but ultimately had failed.  There were assessments of C's ability to care for G during that period, and C demonstrated that she would not respond to offers of assistance across a very broad spectrum of services that were made available, even where there was the added incentive arising from the birth of G and C's desire to retain her care.

16. I am now going to turn to the legal considerations.  Yesterday I invited submissions from the parties in relation to Article 5 of the European Convention on Human Rights.  That article provides, in its essential parts, as follows:

"1. 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..."

It goes on to include the following:

"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.

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants."

The focus of this case is on Article 5(1)(d) and Mr Davis has sensibly made various concessions that I will turn to in relation to that.  I am not asked to consider the application of Article 5(1)(e) and there is no suggestion that that provision should therefore apply to the case.  Article 5 goes on to include the following:

"2. Everyone who is arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

17. It is also necessary to apply the provisions of Article 8 of the European Convention on Human Rights.  That article provides as follows:

"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 in a democratic society…for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

I have left out irrelevant passages of that article.

18. It is also necessary to recollect the provisions of section 25 of the Children Act 1989 and, in particular, subsection (1), which provides that:

"…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…unless it appears—

(a) that—

(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."

19. By analogy with those provisions, it is argued by the local authority that C falls within the ambit of section 25(1)(b) and, therefore, it is argued that if she were to be kept in any other description of accommodation, save for the Secure Accommodation Unit, she is likely to injure herself or other persons. 

20. I have also invited the parties to consider the case of Re K (Secure Accommodation order: Right to Liberty) [2001] 1 FLR 526. I have read the judgments in that case as a whole and with some considerable care. 

21. I therefore turn to my analysis of the legal considerations and the facts of the case. My conclusions can be stated in this way.  First of all, on issues of law:

1. A secure accommodation order does involve a deprivation of liberty and, therefore, Article 5 is engaged.

2.  Secure accommodation is therefore a serious step which must only be taken as a last resort and with due recognition that the liberty of the subject is in issue.  Miss Barlow has helpfully cited the case of R v Shayler [2002] 2 WLR 754, in which it is stated that the court must consider a number of particular matters when the issue of deprivation of liberty arises in this context. The passage reads as follows:

"The first is whether the objective which is sought to be achieved, the pressing social need, is sufficiently important to justify limiting the fundamental right.  The second is whether the means chosen to limit that right are rational, fair and not arbitrary.  The third is whether the means used impair the right as minimally as is reasonably possible. As these propositions indicate, it is not enough to assert the decision that was taken was a reasonable one.  A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them."

3. A secure accommodation order, either under section 25 of the Children Act 1989, or made pursuant to the High Court's inherent jurisdiction, is a plain invasion of the rights conferred by Article 8(1) of the European Convention on. That invasion can only be justified if the invasion is legal, necessary and proportionate. 

4. One exception within Article 8(5) which permits the deprivation of a minor's liberty is found in Article 5(1)(d), the provision that I have already read.

5. Educational supervision is to be widely interpreted.  It is necessary to turn to the judgment in Re K for that, although I record that Mr Davis sensibly conceded that the Secure Accommodation Unit is providing educational supervision for C on the facts of this case.  Judge LJ (as he then was) said at paragraph 107 that "Educational supervision goes far beyond school".  The passage then reads as follows:

"It is not just about the restriction on liberty involved in required a reluctant child to remain at school for the school day.  It arises in the context of the responsibilities of parents which extend well beyond ensuring the child's attendance at school so it involves education in the broad sense. Similar, I would respectfully suggest, to the general development of the child's physical, intellectual, emotional, social and behavioural abilities, all of which have to be encouraged by responsible parents as part of his upbringing and education, and for this purpose an appropriate level of supervision of the child to enhance his development where necessary by restricting his liberty is permitted.  If less were involved than this, there would be no purpose in including educational supervision as an express restriction on the right of a minor to liberty.  The recognition of custodial rights and parental responsibilities would have sufficed.  It is of course quite unreal for anyone to decide in theory or for rigid guidelines to be laid down in advance about the appropriate level of educational supervision which may be required by an individual child. The purpose of this order and its implementation by the local authority is to provide the best available environment to enable K's education both in the narrow and broad sense under the degree of supervision and control necessary to avoid harm or injury to himself and to improve his prospects of avoiding both in the long term as well as the immediate future.  I should add that if K was to cause injury to others, which in the remotest degree corresponded to his fantasies, apart from any injury to them, the end result would be significant harm to him, with the major risk of conviction for a desperately serious crime and a correspondingly severe sentence."

6. Again as is quite rightly conceded by Mr Davis, the fact that the minor concerned is beyond the age of compulsory school education is not determinative of the issue of whether a child is being provided with educational supervision within the ambit of Article 5(1)(d).  This is plain from paragraph 38 of Re K, and the case of Bouamar v Belgium [1989] 11 EHRR 1.

7. C is not a child looked after by a local authority for the purposes of section 25.  However, the conditions in section 25(1)(a) or (b) must still be applied by analogy.  It could not be correct for a looser test to be applied under the inherent jurisdiction than that which is applicable where section 25 directly arises as a result of the child being looked after by a local authority.

8. Those who seek to justify the order must prove its need in accordance with legal criteria.  That proof must be proof on evidence, and must be supported by legal analysis. 

22. In analysing the position of a child involved in proceedings under the inherent jurisdiction, it is, of course, important to have regard to the welfare of the child concerned when applying the legal considerations that I have outlined. Ultimately in the wardship jurisdiction the welfare of the child is the paramount consideration. That does not justify any watering down of the principles that I have already expressed, and I apply the principles that I have expressed to the facts of this case, but I also recollect the fundamental importance to the determination of the child's welfare.  Indeed, the principles that I have enunciated fit in squarely with an analysis of the welfare checklist, because what is being argued, on the one hand, is that C is of an age where her wishes and feelings are of paramount relevance.  It is being said on her behalf that any risk of harm can be met by other provision and that the change of her circumstances by being detained is such as to have a negative impact upon the prospects of her being able to cooperate with professionals.

23. Decisions about the deprivation of liberty are of such fundamental importance that they can be no softening or departure from the underlying legal principles of Article 5 and, therefore, I wish to stress that I am not approaching this under some general umbrella of what I think is best for C without having firm regard to the provisions of the article and the provisions of Article 8.

24. My findings are these. 

1. That C is at imminent and prevalent risk of causing herself and others serious harm.  The risk of harm to herself and others is foreseeable and highly probable to occur. Therefore, section 24(1)(b) of the Children Act is satisfied.

2. C is not detainable under the Mental Health Act 1983.

3. C is an extremely vulnerable young person.  If returned to the community now, it is highly probable that she will engage in criminal activity involving drugs, drink and violence.

4. C has no adult perception of the risks that she poses to herself.

5. C has no available accommodation, and any accommodation that she might find in the community is likely to be very short lived.  The suggestion of accommodation in Exeter and Bristol would not provide any likelihood of her achieving stability. I think it highly likely that she would not remain in any such accommodation.

6. C is not able to organise herself in the community in a way that would avoid the harm that she represents to herself and others.

7. No other arrangement is identifiable for her in her current circumstances other than her current placement in the Secure Accommodation Unit.

8. She is being detained at her liberty at the Secure Accommodation Unit and, therefore, Article 5 is engaged.

9. In the broad sense of the words, she is receiving educational supervision in the Secure Accommodation Unit.

10. The pressing social need for her detention plainly outweighs her right to liberty.  How could it be correct to return her to the community when it is foreseeable and highly probable that she will harm herself and others.

11.  The means suggested, i.e. detention in the Secure Accommodation Unit by way of secure accommodation provision, are rational, fair, and not arbitrary.  The need for such orders is demonstrated on evidence that I have accepted and which has been carefully provided.

12.  No less a provision than secure accommodation would suffice. There is no alternative arrangement available. To return her to the community would be to wash one's hands of her welfare.  Thus, insofar as there is a welfare determination to be made, her welfare demands that she remains in this current placement as suggested.

13. I have read the papers, heard evidence, and full legal argument.  I have given exceptionally anxious thought to this case since it first came before me. I have required a hearing on the legal issues that have arisen, and have identified the scope within which I must operate.  I have analysed the case to the best of my ability. I do not regard this as a mere discretionary decision.  It is an analytical and evidential one. 

14. The order that has to be made is an order continuing the detention of C at the Secure Accommodation Unit.  That order must be for the shortest possible period that is proportionate to the circumstances that I have found to exist.  It must be for the minimum period that is necessary to satisfy the legal and analytical considerations that I have given.

15. Anything less than 8 weeks would serve no purpose, in my judgment, and would be detention for the sake of it.  The educational supervision proposed by the local authority has to involve the attempt at therapeutic provision by Dr Cratchley, who has, I understand, particular experience in this field.  That overall educational supervision must take place over an 8-week period if it is to have any purpose. Less than that would mean that there would be no real chance of C engaging in the package of educational proposals that have been made for her at the Secure Accommodation Unit.

25. As a last resort, therefore, and in the absence of any other provision that could meet the demands of this case, I am driven to conclude that a further period in secure accommodation must be ordered.
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