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Re M (Lack of Secure Accommodation) [2017] EWFC B61

Judgment in care proceedings concerning M, a fifteen-year-old boy, who after receiving a community sentence had been living with his grandmother because the local authority had been unable to find a secure placement for him. M has subsequently absconded and is in breach of his community sentence.

This is a judgment in care proceedings concerning M, a fifteen-year-old boy. Proceedings were issued after a period in which M was increasingly involved in a range of criminal activities, was increasingly beyond the control of his family, and during which he had absconded from various family placements. M's family and the professionals involved with him were extremely concerned for his safety.

On 16 June 2017 M absconded after receiving a community sentence for a criminal offence. He was subsequently located and remanded in custody pending the resolution of another criminal matter for which in August 2017 he also received a community sentence, which required him to live at his grandmother's home subject to a curfew and electronic tag. The local authority did not feel this placement was appropriate for M. Although the LA Assistant Director had given ongoing authorisation for the LA to seek a secure accommodation order once M was located, by the date on which M received the community order the Placements Team had been unable to find either a secure or a non-secure placement for M.

At a hearing on 25 August 2017, due to the unavailability of a placement, the allocated social worker drew up a written agreement signed by M, his mother and his grandmother setting out the terms on which M would live with his grandmother. Extremely concerned about the lack of a secure placement for M and about the unsuitability of the family placement, HHJ Karp directed the LA to file evidence in relation to its search and transferred the case to the Designated Family Judge, HHJ Rowe.

Between the hearing on 25 August and the hearing on 1 September, M absconded from his grandmother's home and had not been located since. HHJ Rowe observed that had a secure placement for M been available at court on 25 August and had the court made the order, then M would not have been free to abscond, he would not have been in breach of his community sentence and he would have been safe. HHJ Rowe concluded that it was highly likely that M was continuing to put himself at risk, including risk as a result of the commission of further criminal offences.

M's social worker reported a shortage of beds nationwide; 23 children were waiting for a secure placement. HHJ Rowe, and the other parties, accepted that the LA had made every effort to find a placement (referrals to over 75 residential providers throughout England, Scotland and Wales had been made) and therefore, as in the case of London Borough of Southwark v F [2017] EWHC 2189 (Fam) before Hayden J, there was an impasse in respect of which the court was unable to achieve a resolution. Unable to do anything further, HHJ Rowe shared the frustration expressed by Hayden J at paragraph 15 of London Borough of Southwark v F and ordered the judgment to be provided to the Secretary of State.

Summary by Emily Ward, barrister, Broadway House Chambers
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This judgment was delivered in Open Court. 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 his 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.

CASE NO: ZW17C00286

IN THE FAMILY COURT SITTING AT BARNET
IN THE MATTER OF THE CHILDREN ACT 1989


13 September 2017


Before

Her Honour Judge Rowe QC,
Designated Family Judge for West London, sitting in the Royal Courts of Justice

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Between:

LONDON BOROUGH OF HARINGEY
Applicant
And
M, M and M Respondents
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JUDGMENT
Her Honour Judge Rowe:


1. This judgment concerns M, yet another young person who has fallen into a "gap" in the system created by the serious shortage of secure accommodation required to keep him safe.
 
2. M is 15 years old. Since June of this year he has been subject to an Interim Care Order in favour of the London Borough of Haringey. The primary objective of these care proceedings is to identify how M's welfare interests might best be met. The plan is for M to be assessed by a Child and Adolescent Psychiatrist so that the court can understand M's needs and receive advice as to his placement and his support. For reasons set out below, it has not yet been possible to implement this plan, and therefore it is not yet possible for the court fully to understand the reasons behind M's difficulties, and to help him to address them.

3. The Local Authority issued these proceedings after a period in which M was increasingly involved in a range of criminal activities, was increasingly beyond the control of his family, and during which he had absconded from various family placements. Both his family and the professionals involved with him were extremely concerned for his safety. By 16 June 2017 M had again absconded after receiving a community sentence for a criminal offence, and so the local authority applied for both an Interim Care Order and a Recovery Order. M was subsequently located and held on remand pending the resolution of another criminal matter for which in August 2017 he also received a community sentence. His sentence required him to live at his grandmother's home subject to a curfew which was to be enforced by way of an electronic tag.

4. The Local Authority was, in the meantime, so concerned about M's safety that the Assistant Director had given ongoing authorization for the Local Authority to seek a Secure Accommodation Order once M was located, if M received a non-custodial sentence for the criminal offences he had committed. The court in the care proceedings had already listed a hearing on 25 August 2017, and that hearing was retained to hear the application should M remain in the community following the criminal hearing. The local authority was extremely concerned at the placement of M with his grandmother, considering that the placement was wholly unsuitable for him. The local authority had begun its search for a secure placement for M, however by the date on which M received the community placement the Placements Team had been unable to find either a secure or a non-secure placement for M. The allocated social worker drew up a Written Agreement signed by M, his mother and his grandmother setting out the terms on which M would live with his grandmother.

5. On 25 August 2017 HHJ Karp expressed her real concern at the lack of a secure placement for M, and about the unsuitability of the family placement. The Judge directed the filing of evidence about the Local Authority's search for a placement, and such was her concern about the paucity of placements available that after liaising with the Family Division Liaison Judge, HHJ Karp transferred the case to me, the Designated Family Judge for West London, to consider giving a public judgment on the issue. The case was listed before me on 1 September 2017, for further consideration of the orders the court could make to protect M.

6. Between the hearing on 25 August and the hearing on 1 September, as feared M absconded from his grandmother's home. He last stayed there on the night of 27 August, and he has not been located since. It appears that the electronic tag fitted on 25 August is not GPS enabled and therefore it cannot be used to track him in the community. Steps have been taken to return him to the criminal court for his failure to comply with the terms of the community order imposed at the end of August.

7. On 1 September I echoed the concerns expressed by HHJ Karp. Had a secure placement for M been available at court on 25 August and had the court made the order then M would not have been free to abscond, he would not have been in breach of his community sentence and most importantly he would have been safe. This would then have enabled the expert instructed in the care proceedings to begin their assessment of M's needs, and it would have enabled the Youth Offending Service to complete their Assessment Intervention Moving On (AIM) Assessment of M to assess his level of risk and to make recommendations for therapeutic intervention for him. As he remained – and remains – at large, none of that has been able to happen. As he remains at large, it is highly likely that he is continuing to put himself at risk, including risk as a result of the commission of further criminal offences.

8. On 1 September I received written and updating oral evidence from the Local Authority Social Worker and from the Brokerage Manager of the Children's Placements Service setting out in detail the efforts they had made to find a suitable placement for M. In short the referral has gone out to over 75 residential providers throughout England, Scotland and Wales. M's social worker told me, as was apparent from the search, that there is currently a shortage of beds nationwide and that there is currently (or was then) a waiting list of 23 children waiting for a secure placement. All parties accepted that the local authority simply could not have done any more to find a placement.

9. I listed the case before me again today, directing the filing of further evidence and the attendance of a manager from the Local Authority's Placements Team, and I invited M's YOT worker to attend. I was told today that finally a place did become available for M following the last hearing. As M has still not been located, that invaluable place could not be held beyond a week for him.

10. The Local Authority continues to wish to pursue an application pursuant to s25 of the Children Act 1989 for permission to place M in secure accommodation, unless and until he is remanded in custody as a result of his criminal offending. Under those provisions a child may not be placed in secure accommodation unless it appears as follows:

(i) He has a history of absconding and is likely to abscond from any other descriptions of accommodation and;

(ii) If he absconds he is likely to suffer significant harm;

(iii) Or that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

11. Restricting the liberty of a child is an extremely serious step, and one to be taken only as a last resort: see the observations of Hayden J in London Borough of Barking and Dagenham v SS [2014] EWHC 4436 (Fam). When it is able to proceed with its application the Local Authority will need to establish its case. It appears highly likely, however, that the test under s25 will be met in this case, and further it appears unlikely that any party other than possibly M himself will oppose the making of such an order. If there is no placement then available, even if M were located and recovered to safety the court could still not make the order.

12. I accept that every effort that the Local Authority could make to find a suitable placement has been made. As in the case of London Borough of Southwark v F [2017] EWHC 2189 (Fam) before Hayden J, therefore, there is an impasse in respect of which I am unable to achieve a resolution. I can do no better than to cite the frustration, which I share, expressed by Hayden J at paragraph 15 of that judgment where he said this,

"Ultimately, the responsibility for this must lie with the Minister of State for Education. I am going to direct that a note of this judgment be provided to her. I have also delivered this judgment in open court because I believe it is genuinely a matter that falls within "the public interest", In this I follow the approach of the President of the Family Division only a few weeks ago in the case of Re X (A Child) No 3 [2017] EWHC 2036 (Fam). In that case Sir James Munby set out the submissions of Counsel addressing a situation strikingly similar to this. I propose to incorporate those here:

"The latest position statement prepared by Mr Jones is dated 28 July 2017. In the course of his submissions he said this:

A central concern in this case, which cannot be ignored, is not only the complete inadequacy in respect of available child and adolescent mental health placement provisions, but also the apparent lack of availability of any suitable temporary placements.

…"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 appropriate.

"…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 or mental health provisions, are a scarce resource.""

The President did not consider that even these remarks went far enough. He added the following comments to which nothing need or indeed can be added:

"I agree with every word of that. My only cavil is that Mr Jones's language is perhaps unduly moderate. The lack of proper provision for X – and, one fears, too many like her – is an outrage.""

13. I will deal outside the scope of this public judgment with the next steps that can be taken in this case. Counsel for the Local Authority has undertaken to ensure that the Secretary of State receives a copy of the note of this judgment.