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M (A Child - secure accommodation order) [2017] EWHC 3021 (Fam)

Application under s.25 of the Children Act 1989 highlighting the shortage of secure accommodation resources

The local authority applied for a secure accommodation order in respect of M who was aged 15. M had been known to social services for the whole of her life and was eventually placed in local authority care in 2010 as a result of the profound physical, emotional and possibly sexual harm she had suffered. As a result of her traumatic experiences, she had behaved throughout her time in care in an extremely aggressive manner, causing significant injuries over the years to staff and to other looked after children. Notably, the triggers for her outbursts remained largely unknown, but a violent incident could follow a minor domestic dispute. Her time in care had followed a familiar pattern: a number of failed foster placements, and eleven different residential placements lasting from three days to twenty four months, none of which had succeeded in addressing or managing her extreme behaviour.

Hayden J noted with some concern that although he had believed that secure accommodation orders were currently less common in the Family Justice System than they had been in the past, the trajectory was of a consistent increase.

After setting out the core principles underpinning the scope of section 25 of the Children Act 1989 (see paras. 15 to 16) Hayden J held that that there was 'no doubt' that the criteria in section 25 were met in this case, and that the real issue was whether the making of the Order was in M's best interests. He found that containment of M was a legitimate objective in view of the history of the case and that it would provide a gateway, if possible, to constructive therapeutic intervention. He was therefore satisfied that it was in her best interests to make an order limited to three months.

Sadly, however, even though M clearly posed a risk of really serious injury to herself, to her carers, to other young people, and to the public, the local authority had not been able to find a unit that was prepared to accommodate her. Echoing the comments he had made in London Borough of Southwark v F [2017] EWHC 2189 (Fam), and the observations of Sir James Munby (P) in Re X (A Child) No 3 [2017] EWHC 2036, Hayden J concluded by expressing grave concern as to the wholly inadequate provision of secure accommodation resources in England and Wales. Once again, he directed that the judgment be forwarded to the Minister of State for Education.

Summary by Abigail Bond,  barrister, St John's Chambers, Bristol.
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Neutral Citation Number: [2017] EWHC 3021 (Fam)
Case No: MA17C00615

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/11/2017


Before :

MR JUSTICE HAYDEN
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In the Matter of M (A Child)
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Ms Frances Heaton QC and Mr Matthew Entwistle (instructed by the Local Authority) for the Wigan MBC
Ms Goodman
(instructed by Fylde Law) for the Mother
Ms Susan Grocott QC
and Ms Rebecca Gregg (instructed by AFG Law) for the Child

Hearing dates: 22nd November 2017
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Judgment Approved

MR JUSTICE HAYDEN

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 children and members of their 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.

Mr. Justice Hayden
1. This is an application made by Wigan Borough Council for a secure accommodation order, pursuant to s25 Children Act 1989, in respect of M, who has recently turned 15 years of age.

2. All who have encountered M agree that she has exceptionally complex needs and behavioural problems. Beyond this, little is clearly understood about her functioning and her wider needs.  Self evidently, like any other teenager M needs a secure and stable home in which she can realise her potential. 

3. M and her family have been known to the social services for the whole of her life.  The first record of social services involvement was now as long ago as 2000.  The family were the subject of three child protection interventions predicated on the risk to the children of physical and emotional harm. Eventually, the children were received into Local Authority care.  It is right to say that in the case of M, the child with whom I am concerned, the Local Authority has struggled to provide a level of care which truly meets M's needs.  Given the limited appreciation of what M's needs are, this is unsurprising. 

4. Since her reception into care has it become clear just how bleak and desperate M's early childhood was.  It is apparent that by M's eighth birthday, she and her siblings had each witnessed verbal, emotional and physical abuse which on my evaluation of the evidence is at the highest end of the index of gravity.  What is also clear is that M (as a very young child) was, for protracted periods, locked into her bedroom, sometimes by using a system of wires to secure the door.  She was kept in confinement for such lengthy periods that her parents thought it necessary, despite her age, to put her in nappies.  She was denied access to the lavatory. One of M's brothers became inveigled into her abuse, effectively appointed her gaoler by the parents When M was received into care it became clear that in addition to the profound physical and emotional harm which had been inflicted upon her, she was probably sexually abused also.

5. Though she had experienced little by way of positive parenting herself, M was expected to care for her younger siblings.   Ms Heaton QC who appears on behalf of the Local Authority today, along with her junior Mr Matthew Entwistle, has prepared a helpful and detailed chronology.  Ms Grocott QC who appears on behalf of M, with her junior Ms Rebecca Gregg, agrees that the chronology is an accurate and succinct summary of the background.  I propose therefore to incorporate the following extracts into this judgment. (the emphasis below is mine).

i. M was born on 26th October 2002 and is now aged 15 years. She has exceptionally complex needs and extreme behavioural problems, the background to which is not fully understood despite the length of time various professionals with a range of expertise have been involved. It is however clear she and her siblings have very distorted views of relationships, family dynamics, and the use of violence and aggression to 'problem solve';

ii. She is the daughter of parents who together have eight other children which will not be named in this Judgment;

iii. The family have been known to social care since 2000 and subject to three child protection plans due to emotional harm and neglect. The care provided to each of the children by their parents fell far below an adequate standard and each one of the children bears the emotional scars of their experience;

iv. It is only during the years since their reception into the local authority's care that more information about their lives with their parents has very gradually emerged.  However the true extent of the parental failings and abuse, and consequent reality of the children's lives in their parents' care, remains unknown, even after 7 years in local authority care;

v. It is known that by the time of the Police Protection Order (26th October 2010 M's eighth birthday) the children had each witnessed very severe physical and verbal abuse between the parents, they were locked in their bedrooms for long periods by using wires to secure the doors, they had to wear nappies at night irrespective of their ages, their older half siblings were abusive to the children, the parents subjected the children to physical and emotional abuse, the parents abused drugs and neglected every aspect of their children's welfare needs. It is thought that M, despite her tender age, was expected to care for her younger siblings;

vi. Due to the complexity of care planning for these children, twenty three months after the proceedings were issued, final care orders were made on 17th September 2012 by His Honour Judge Appleby. The care plan for the youngest three children was adoption, and long term fostering for the older siblings in separate placements;

vii. Placement for adoption was not achievable for the youngest siblings, because of the magnitude of their individual needs which have emerged since their reception into care. It remains the position that the youngest two, although placed together with committed foster carers, cannot be left alone together because of their aggression;

viii. All of the children have presented with emotional and behavioural difficulties which have manifested themselves in difficulties forming and maintaining any relationships (adult, children and siblings), extreme aggression and violence to carers and other children;

ix. Since her reception into care M, and indeed her younger siblings who were placed separately to M, suffered a succession of placement breakdowns as a result of difficulties managing their behaviour. At the time of their reception into care the youngest children were just thirteen months, two years  five months and three years nine months. The outcomes for those children in particular perhaps underscore the importance of the care children receive in their early months and years;

x. All the siblings have required a high level of oversight and scrutiny in formulating plans and reacting to the fluctuating situations for each of them by reason of their behaviour.

xi. A number of experienced professionals across various agencies have been involved in M's care planning.  Dr. Kenny Ross, Consultant Adolescent Forensic Psychiatrist, reported in July 2017, there is "no evidence to suggest that M was suffering from any serious or enduring mental illness such as schizophrenia or major depressive disorder. She has experienced significant early trauma and her difficulties were seen as arising from these traumatic experiences and attachment difficulties.  She is reported to have experienced neglect, emotional abuse and sexual abuse.  She was seen as fulfilling the criteria for 'other mixed disorder of conduct and emotions';

xii. Dr. Rachael McCormick, Child Psychologist, initially assessed M during the care proceedings she says 'poor engagement… has limited the extent to which individual assessment of her has been possible', and further noted that she may be "resistant to investing in a therapeutic relationship".  When Dr McCormick was asked to provide further assessments of M and her siblings she said in August 2012 she did not consider it appropriate at that stage to directly assess her, and again in May 2014 found that it was inappropriate to undertake a direct assessment of her.  Sadly M's poor engagement has been a persistent theme during her time in care;

xiii. The early trauma she has suffered causes her to behave in an extremely aggressive manner towards others and property and has been present throughout her time in care. By way of example, at the age of 8 she threw chairs in her classroom, knocked over tables and harmed another child and in another incident had to be restrained by two adults. Most recently on 13th November 2017 and 17th November 2017 where she seriously assaulted female members of the team caring for her who each required medical attention.  Over the years she has caused significant injuries to staff and other looked after children, including a broken nose, broken fingers, black eyes, gashes to the head, scratches, pushed a staff member down the staircase and pulled hair out. M has also used household items as weapons;

xiv. At times her behaviour regresses to that of an infant and on occasion she has been sexually aroused during incidents particularly when she has been restrained;

xv. She has been known to the police since she was 10 (March 2013) and to the criminal justice system, having a criminal record for various assaults. In her report dated 25th July 2017, Lisa O'Hare, social worker with Wigan YOT, states, "It is my assessment that M is likely to become a dangerous young woman if she does not receive appropriate specialist care";

xvi. Her most recent convictions were on 12th October 2017 when she was sentenced to a Youth Rehabilitation Order for 12 months with Supervision in respect of nine counts of s39 assaults and one count of criminal damage. Four section 39 assaults took place in June and July, two in her placement on 13th August 2017 and three on 20th August 2017.  M was due to attend the youth court last week but refused and the case, at the request of the YOT worker, was adjourned rather than a warrant being issued for her arrest;

xvii. The YOT worker, Rebecca Haworth (High Risk Youth Justice Worker), has spent time trying to build a positive relationship with M to address her offending behaviour, and discussed activities she may be interested in. Local community projects are being explored which are focused on M's expressed wish to work with animals. To date she has complied with the court order;

xviii. Significantly the triggers for her violence and aggression remain largely unknown. It is thought she functions at around the age of an eight year old, and in June 2011, Dr McCormick noted 'significant weaknesses…. in her cognitive functioning'; 

xix. These children are the most complex this local authority has ever had to care for. It is unnecessary to say that the children are the most vulnerable and needy in our society.

6. All this reveals a young woman who is obviously and profoundly disturbed.  It does not require a consultant psychiatrist or child psychologist or indeed a professional of any kind to draw the obvious conclusion that she has been, as one would have expected, very significantly damaged by her truly appalling early childhood experiences.

7. M buzzes with anger and frustration.  This jumps from every page of the documents that I have read.  She struggles, for a variety of reasons, to express this rage in any safe or constructive way.  It seems clear that she has difficulty in articulating concepts generally.  Her powers of expression appear to be quite limited and, unsurprisingly, she has no template on which to model self control or regulate her distress. Again, predictably to my mind, M's frustration and obvious sense of impotence in communicating anger and frustration has caused her to behave in a manner which is extremely aggressive and violent.  I consider it to be important to record that I do not regard M's limited verbal skills as reflective of any intellectual deficit

8. There is now a catalogue of incidents in which M has jeopardised her own safety, that of the professionals working with her, and of other vulnerable people.  Ms Heaton points out that it has been very difficult to understand and therefore to anticipate what causes these violent emotional outbursts.  They appear to be capable of being triggered by the most minor domestic incidents, which on occasion results in very serious attacks.

9. These assaults on staff have been so frequent and of such gravity that the Local Authority feels it has now reached the end of the line, in terms of containment of M's behaviour.  It is, I consider, indicative of the extent of M's behavioural difficulties that the Local Authority regards the last seven days or so as having been both relatively calm and reasonably positive. However, when this period is scrutinised, it emerges that on the 17th November, i.e. only five days ago, there was an incident which was really very alarming.   It involved the kidnapping of a care worker, locking her into the bathroom, punching her to the chest, and threatening her with a shard of glass.  This incident took place over a period of hours whilst a male colleague was unable to gain access.  I am frequently humbled by the commitment of those who work with vulnerable youngsters such as this and, indeed, a range of adults with challenging behaviours. 

10. Notwithstanding a catalogue of assaults, some of them involving significant bruising, social workers have simply returned to work and resumed their commitment to care for M.  Bloodied and bruised they have simply got back into the ring.  This is not merely indicative of their professionalism. As I have heard submissions and read the papers I have grown to recognise that there is some element to M's distress that ignites the professionals' determination to help.  Despite the fear, general anxiety and actual physical pain that M causes, her own obvious psychological distress triggers the compassion of those who have tried to contain and help her.  Social workers often attract criticism and public disapproval; here the balance must be redressed.   The professionalism and dedication that I have read about in this case shown by care workers on modest salaries and with limited support, requires to be acknowledged and paid tribute to.

11. It is important, as the guardian has emphasised, to highlight the fact that M was prescribed a low dose of Risperidone, an anti-psychotic medication.  This was at some point during her stay within a Residential Unit. As yet, there is not sufficient information within the court papers to identify quite where this occurred.  I anticipate that the matter will be clarified quickly.  However, it seems most likely that this was commenced, in or around October 2015.  It must be stressed that M has never, at any point, been diagnosed with a psychotic illness.   She may have a disorder of personality which in itself may be linked to earlier traumatic experiences but there is no suggestion that she has ever experienced any psychotic episodes. It seems that this very young child was prescribed the medicine as an 'arousal dampener'.  Behind this seemingly innocuous phase, lies a disturbing truth.  M was given this medication in order to subdue and suppress her.  The guardian, Mr Bernard Toland, is right to highlight this as part of the relevant background informing his own recommendations on this application. 

12. The framework of s25 (1) Children Act 1989 needs to be considered carefully.  It provides:

Use of accommodation for restricting liberty.

(1) Subject to the following provisions of this section, a child who is being looked after by a local authority [F1in England or Wales] may not be placed, and, if placed, may not be kept, in accommodation [F2in England] [F3or Scotland] provided for the purpose of restricting liberty ("secure accommodation") unless it appears—

(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.

13. Whilst there is no doubt that the criteria within s25 are met, I nonetheless have to be satisfied that the making of the order is in M's best interests.  I have been particularly concerned about this for a number of reasons.  Firstly, because I, in common with every other Judge required to consider such applications, regard a restriction on the liberty of a child or young person to be absolutely a measure of last resort. In  London Borough of Barking and Dagenham v SS [2014] EWHC 4436 (Fam).  I made this observation at a paragraph 15,

"'It scarcely needs to be said that restricting the liberty of a child is an extremely serious step, especially where the child has not committed any criminal offence, nor is alleged to have committed any criminal offence. It is for this reason that the process is tightly regulated by the Children Act 1989 in the way I have set out, but also in the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation No.2) Regulations 1991 . The use of s.25 will very rarely be appropriate and it must always remain a measure of last resort. By this I mean not merely that the conventional options for a child in care must have been exhausted but so too must the 'unconventional', i.e. the creative alternative packages of support that resourceful social workers can devise when given time, space and, of course, finances to do so. Nor should the fact that a particular type of placement may not have worked well for the child in the past mean that it should not be tried again. Locking a child up (I make no apology for the bluntness of the language, for that is how these young people see it and, ultimately, that is what is involved) is corrosive of a young persons spirit. It sends a subliminal and unintended message that the child has done wrong which all too often will compound his problems rather than form part of a solution'. "

14. I had thought such orders were becoming less common in the Family Justice System, but Ms Grocott, who has the information at her fingertips, tells me that whilst the number of placements contracted by the Youth Criminal Justice Board has decreased consistently (and significantly), those made in the Family Justice System, i.e. on welfare grounds, have increased.  Quite why this is the case, I am not sure.  I find it troubling.  The full information is available in a document produced by the Department for Education; 'Children accommodated in secure children's homes at 31 March 2017: England and Wales. [SFR 23/2017, 1 June 2017].  It is unnecessary for me to incorporate that information within this judgment. 

15. In London Borough of Barking and Dagenham v SS [2014] EWHC 4436 (Fam) I considered it necessary to identify some of the core principles underpinning the scope of Section 25 Children Act 1989.  Since I gave that judgment the Court of Appeal has  considered Secure Accommodation Orders more generally, see Re. W [2016] 4WLR 159.  In the light of exchanges with counsel however, it may be helpful to reprise some of those earlier points: 

"(1) It is the essence of 'curtailment of liberty' rather than any particular, or designated, establishment which underpins these orders (see Metropolitan Borough Council v DB [1997] 1 FLR 567);"

(2) Secure accommodation is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights incorporated into domestic legislation by the Human Rights Act 1998 (see Re K (Secure Accommodation Order: Right to liberty) [2001] 1 FLR 526 CP);

(3) The two limbs of s.25(1)(a) and (b) are to be read disjunctively and not conjunctively; that is to say either the criteria under (a) or (b) is sufficient. Both are not required (see Re D (Secure Accommodation Order No.1 [1997] 1 FLR 197);

(4) However, 'likely' in both limbs of that section must now, like the s.31 criteria themselves, be determined by reference to the clarification given by the Supreme Court in Re B [2013] UKSC 33 and Re SB (Children) [2009] UKSC 17, bearing in mind that it is not a permissible approach to find likelihood of future harm in the absence of findings predicated on actual fact;

(5) Section 25 is not a provision to which the paramountcy principle applies. Section 25 is under the framework of Part 3 of the Children Act 1989 and, therefore, concerned with the general powers and duties of a local authority in relation to children within its area. The general duty of a local authority which applies to promote and safeguard the welfare of the child is not the same as the paramountcy principle. Determining welfare, though, will be illuminated, as always, by reference to the s.1(3) criteria, the welfare checklist. In these cases 'welfare' will always weigh very heavily."

16. To the above should be added the observations of Charles J in S v Knowsley Borough Council [2004] 2 FLR 716;

"As I have mentioned, this passage, in my view, indicates that the court, when making a secure accommodation order, must itself decide whether the s.25(1) criteria are met, but, in my view, it does not indicate that the court should decide the welfare issues relating to the duty to safeguard and promote the welfare of a child; rather the passages indicate that the court should assess such welfare issues on the basis that the local authority is the decision-maker and, thus, on the basis whether a placement of a child in secure accommodation is within the permissible range of options open to a local authority exercising its duties and functions to promote and safeguard the welfare of a child who is being looked after by it. Such a child may be one who is being provided with accommodation by the local authority or, as in this case, a child in respect of whom a care order has been made."

17. During the course of exchanges, Ms Heaton has, in response to my suggestion, condensed the basis of her application into five core points.  Ms Grocott agrees that these accurately summarise and reflect the guardian's own views.  They require to be set out:

i. M has always been prone to violent outbursts and they have reached a level whereby she has injured staff on multiple occasions and will potentially injure herself.  The injuries by way of example include, broken noses, fingers, significant bruising, use of weapons and use of household implements as weapons;

ii. the local authority has tried numerous strategies to care for her over the years.  In addition to a number of foster placements, M has had eleven different residential placements which have lasted between three days to five months to a maximum of twenty four months.  Each one has broken down due to M's violent behaviour and the placements inability to manage this.  None of the placements have succeeded in addressing her extreme behaviour;

iii. from her reception into care in October 2010 and despite an array of professional involvement it has not been possible to determine the triggers for such violent behaviour;

iv.  the only type of placement M has not experienced is a contained environment;

v. M already has a significant criminal record for violence (being known to the police since she was 10) she is therefore at significant risk of detention through the criminal justice system.  A welfare bed can be managed in conjunction with a local authority, unlike a criminal justice bed.

18. To all this I would add, my own observation, that, in the light of the history of this case, containment in itself, is a legitimate objective, in that it has the attraction of keeping M and those around her safe.  Additionally, in making the order (pursuant to Section 25), in the context of a Care Plan, the focus remains on M's welfare.  The objective is to provide a gateway, if possible, to constructive, thought through, therapeutic intervention

19. Additionally, whilst all of the Local Authority's interventions may not survive detailed scrutiny, it is nonetheless very clear that a wide variety of alternatives have been considered and attempted, none of which can, sadly, be described as successful.  Thus, applying my own criteria in: London Borough of Barking and Dagenham v SS (supra) this truly is the end of the line with all alternatives having been looked at imaginatively.

20. It is profoundly depressing that having analysed the case in the way I have, the Local Authority has not ultimately been able to find a unit that is prepared to accommodate M.  Thus I find myself, once again, in a position of considering the needs of a vulnerable young person in the care of the State where the State itself is unable to meet the needs of a child which they themselves purport to parent.  It requires to be stated unambiguously that M, in her present circumstances, remains a risk to herself, her carers, other young people and to the public generally.  Not only that, but from the one incident I have set out in this ex tempore account, it must be acknowledged that she is at risk of really serious injury to herself and others.  For these reasons, I grant the Local Authority's application for a Secure Accommodation Order.  At present, that is limited to 3 months.  

21. I propose to put this judgment into the public domain because I regard it as a matter of public interest.  Once again, a young and vulnerable person finds herself in a parlous situation where there is wholly inadequate provision.  In London Borough of Southwark v F [2017] EWHC 2189 (Fam) considering a child in similar circumstances I directed that the judgment be forwarded to the Minister of State for Education.  I find it necessary to do the same in this case.  It is impossible not to confront the depressing reality that current secure accommodation resources in England and Wales are inadequate.  In this I echo once again the observations of Sir James Mumby (P) in Re: X (A Child) No.3 [2017] EWHC 2036 (Fam).  The President's words require repetition:

"…"To say the current situation in England and Wales for children with [X]'s (it is accepted unusually high) level of needs is of concern is perhaps an understatement.  This is a child who is subject to a care order and who is accordingly owed support by the local authority pursuant to its duties to her as a looked after child. This is also a child who has significant mental health and emotional issues, which make her behaviours both dangerous and uncontrollable. More than this, she is highly vulnerable. Despite all of these factors, she has been placed in a situation where weeks and months have gone by with there being no placement available for her countrywide … The provisions for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive, clinical environment is worryingly inadequate.  One has to question what would have happened in this case had [X] not received a criminal sentence? Given the level of her behaviours, where would she have been placed? What provider would have accepted her given that secure units were unwilling to do so prior to her receiving a custodial sentence?"  This child has fallen into a "gap" in the system. Her behaviours are so extreme that no residential or supported living placement sourced by children's services can meet her needs, whilst there is clearly inadequate provision from the NHS and health services of placements, which can manage her mental health needs. Her time at [ZX] has amply demonstrated that placement in secure accommodation cannot meet her needs and is inappropriate.  "… This case has demonstrated the inadequacy of the current secure accommodation resources in England and Wales (leading to this local authority having to place in Scotland) and has now gone on to demonstrate the inadequacy of suitable provisions for children with high level of mental health issues, which necessitate assessment and treatment in a secure setting. Placements for vulnerable children and adolescents, be it within secure accommodation of mental health provisions, are a scarce resource.""

22. I have directed that this case be listed before me in the next 7 days to review the situation.