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R (M) v Gateshead Council [2006] EWCA Civ 221

Application for judicial review dismissed, following in-depth analysis of CA 1989, s 21(2)(b) and PACE 1984, s 38(6).

Court of Appeal: Thorpe, Dyson and Moore-Bick LJJ (14 March 2006)

Application for judicial review dismissed, following in-depth analysis of CA 1989, s 21(2)(b) and PACE 1984, s 38(6).

This case concerned a girl, M, who had been voluntarily accommodated for various periods by the local authority until her sixteenth birthday in August 2004, when she discharged herself from council accommodation and began to live independently. In November 2004, she was arrested for alleged wounding with intent and was subsequently charged with that offence.

Shortly after M was charged, the police officer enquired (just after midnight) whether the council could provide secure accommodation until she was due to appear before magistrates later that morning: her detention was necessary to prevent interference with witnesses, to prevent further offending and to ensure she surrendered to custody; enquiries were still ongoing and the identity of the complainant and witnesses were known to her; and the offence was serious and a custodial sentence was likely if convicted. When the council stated that no secure accommodation was available, M was detained overnight at the police station.

M sought permission to apply for judicial review of the council's failure to provide her with secure accommodation when requested by the police to do so, allegedly in breach of the duty imposed by section 21(2)(b) of the Children Act 1989; permission was refused, and M appealed.

On this appeal, the issues before the court were as follows:

(1) whether the section 21(2)(b) duty falls on any local authority which receives a request to receive and provide accommodation for a child, or only on a local authority which receives such a request in respect of a child who is within its area at the time of the request;

(2) whether there is any duty under section 21(2)(b) on a local authority to provide secure accommodation if such accommodation is requested by a custody officer when discharging his or her duty under section 38(6) of the Police and Criminal Evidence Act 1984, and if so, what is the nature of that duty; and

(3) whether there was a breach of duty by the council in this case.

Held, dismissing the application, that:

(1) Parliament had deliberately made different arrangements as to which local authority had the duty to provide accommodation in different circumstances; while a number of Children Act provisions imposed a duty on a local authority in respect of children 'in their area', section 21(2)(b) stated that, for children who were the subject of police requests under PACE 1984, s 38(6), the local authority subject to the duty was the one that received the request to provide accommodation; the words of section 21(2)(b) should be given their plain and ordinary meaning, and there was no necessary implication by which the words 'within their area' should be added;

(2) section 21(2)(b) imposed an absolute duty on the local authority to provide accommodation and, in discharging that obligation, it had a discretion whether or not to provide secure accommodation, in accordance with the policy objective of preventing children, where practicable, from being detained in police cells; as to any duty arising from PACE 1984, s 38(6) itself, that section expressly contemplated that the custody officer may not be able to arrange accommodation that was secure; and

(3) in assessing the system that the council had in place for dealing with requests by the police for secure accommodation under section 38(6), it was necessary to have regard to (i) the comparative rarity of requests for secure accommodation for girls under section 38(6), (ii) the resource implications of maintaining its own stock of secure PACE accommodation, and (iii) the fact that secure accommodation could be provided nearby in certain circumstances; accordingly, the council's system could not be characterised as unlawful.

Read the full text of the judgment here