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Ariadne’s Golden Thread: Placing Children in Secure Accommodation

Alex Laing, barrister at Coram Chambers, provides a step-by-step guide through the secure accommodation labyrinth when determining whether to use section 25 of the Children Act 1989 or the inherent jurisdiction.

Alexander Laing, Coram Chambers

Alex Laing, pupil, Coram Chambers

It is hoped that the following step-by-step guide will act as a handy route map in navigating the secure accommodation labyrinth and determining whether one should use section 25 of the Children Act 1989 or the inherent jurisdiction:

Question 1:
s the child "looked after"1?

a. Yes: advance to Question 2;

b. No: do not use section 25; use the inherent jurisdiction.2

Question 2:

To what extent does the proposed accommodation impact on the child's liberty?

a. The accommodation is designed for, or has as its primary purpose, the restriction of the child's liberty3advance to Question 3;

b. The accommodation constitutes a deprivation of the child's liberty4,  but this is incidental to its design or primary purpose5use the inherent jurisdiction6;

c. The accommodation does not constitute a deprivation of the child's liberty: use a care order/ICO.

Question 3:
What is the class of accommodation proposed?

a. A children's home7 approved by the Secretary of State: use section 258;

b. A non-approved children's home: do not use section 259probably10 use the inherent jurisdiction;

c. Neither a. nor b.: use section 2511.

For an article which examines whether, and if so on what basis, the court can place in secure accommodation a child who has celebrated his 16th birthday, see Daedalus's Twist? Secure Accommodation after a Child's 16th Birthday. For consideration of the interrelationship of secure accommodation and the inherent jurisdiction, see And There Lurks the Minotaur: The Interrelationship Between the Inherent Jurisdiction and Section 25, CA 1989, Part I and Part II.

1 Namely: (1) accommodated (for at least 24 hours) under s.20, excluding those over 16 and accommodated in a community home under s.20 (5); or, (2) subject to a care order.
2 Section 25 (1) of the Children Act 1989 applies only to "looked after" children. For the use of the inherent jurisdiction in such cases, see, for example: Re B (Secure Accommodation: Inherent Jurisdiction) (No. 1) [2013] EWHC 4654 (Fam), at [20].
3 Section 25, as interpreted by Wall J in Re C (Detention: Medical Treatment) [1997] 2 FLR 180. This is a question of fact.
4 So as to engage Article 5 ECHR. See [49] of Lady Hale's judgment in 'Cheshire West' [2014] UKSC 19 at [49], citing [91] of HL v United Kingdom 40 EHRR 761. 
5 Re C [1997] at 192 C – 195 A.
6 Where a placement interferes with a child's Article 5 (and, indeed, Articles 6 and 8) rights, that interference must be authorised by a court. See, for example, Re PS (An Adult) [2007] EWHC 623 (Fam) at [16], [20] and [25]; Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526, at [19].
7 A children's home means a registered children's home, a community home or a voluntary home, as per regulation 2 (1) of the Children (Secure Accommodation) Regulations 1991, as amended by regulation 2 of the Children (Secure Accommodation) Amendment Regulations 1995.
8 Regulation 3, 1991 Regulations, as amended by regulation 3, 1995 Regulations. 
9 Ibid.
10 This depends on whether a court finds that the effect of regulation 3 of the 1991 Regulations is such so as to oust its powers under the inherent jurisdiction in relation to a non-approved children's home.
11 If the placement is not a children's home then, as a point of logic, it does not appear to require the approval of the Secretary of State: only children's homes are mentioned in the 1991 Regulations, as amended by the 1995 Regulations. On that basis, the only requirement is that the child satisfies the section 25(1)(a) conditions.