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Birmingham City Council v M 2008 EWHC 1085 (Fam)

Appeal by local authority against refusal to grant a final secure accommodation order. Appeal allowed.

The case raised a point of principle, namely, whether the FPC can be justified in granting an interim secure accommodation order in circumstances where the making of a final secure accommodation order might well be granted. The subject of the order was a 15 year old girl who whilst in care stabbed another girl. She was made the subject of an interim secure order in September 2007, which expired in October 2007 and was replaced with a final order until end of December 2007. When the local authority applied for another three month order that was rejected and instead an interim order for three months was granted, partly on the basis that the child, through counsel, agreed to such an order (her guardian was not present at the hearing).

In this appeal, the local authority argued that the interim order had been used as a device to keep the guardian and solicitor in post, which they argued was impermissible: they should only be able to grant an interim order when adjourning an application.

In this judgment McFarlane J reviews the relevant statutory provisions and concludes that i) the power to make an interim order only arises if the court adjourns the hearing; ii) the procedural question is whether to proceed to a determination or adjourn in the light of the information before the court and procedural fairness to all parties; iii) given ii) if there are no grounds for adjournment the court must  determine the application; iv) as a matter of principle, any adjournment period should be the minimum necessary to address the underlying factors and; v) the function of the guardian in such proceedings is to assist the court, not to oversee the local authority, therefore the use of an interim order to prolong the guardian’s involvement was impermissible. He therefore allowed the local authority’s appeal.


Neutral Citation Number: 2008 EWHC 1085 (FAM)

Case No: BM 08 C 08044

Birmingham Civil Justice Centre
Date: 3rd June 2008

Before: Mr Justice McFarlane

Between :

Birmingham City Council (Appellant)

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M (a child acting by her Guardian) (Respondent)

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Mr Piers Pressdee (instructed by Legal Services, Birmingham City Council) for the child
Miss Justine Latimer (instructed by Carvill & Johnson ) for the Respondent.

Hearing date: 14TH February 2008, judgement handed down 3rd June 2008
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.



This judgment is being handed down in private on ............. It consists of ....... pages and has been signed and dated by the judge.  The judge hereby gives leave for it to be reported.

 The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.


Mr Justice McFarlane:
1. This appeal raises a short, but not unimportant, point upon the justification for a court granting an interim secure accommodation order in circumstances where the making of a final secure accommodation order might well be justified.

2. The factual background need only be shortly stated. The young person concerned is ‘M’ born on 15th October 1992, and therefore now aged 15 years. M was made the subject of a full care order on 10th February 2005. As a result of serious concerns about her behaviour, which included stabbing another resident at a children’s home in September 2007, she was made the subject of an interim secure accommodation order by the Birmingham FPC on the 20th September 2007. That order expired on the 29th October 2007 and was replaced by a final secure accommodation order which was due to expire on 27th December 2007.

3. On 18th December 2007 the Local Authority issued a fresh application for a further three month secure accommodation order. That application came before the justices on the 20th December 2007. Following a consideration of the evidence and submissions by advocates for the local authority and for M, the justices made an interim secure accommodation order for three months, adjourning the case to 20th March 2008 ‘for further directions with a time estimate of 2 hours’.

4. The local authority now appeals against that decision and asserts that a final secure accommodation order for three months should have been made at the hearing on 20th December. The appeal is opposed by counsel taking instructions on behalf of M’s guardian.

5. It is accepted that the issues raised by the local authority relate to current practice in relation to secure accommodation applications and have implications that go further than the simple factual boundaries of this case. At the beginning of the appeal hearing I therefore gave the authority permission to appeal out of time.

6. As will be apparent, the case argued for on behalf of M’s guardian potentially has significant resource implications for CAFCASS nationally. Senior management in CAFCASS had not been made aware of the appeal, and the guardian’s stance, and I therefore made arrangements at the close of the oral hearing for the papers to be disclosed to CAFCASS legal in order to provide the agency with an opportunity to make written representations. In due course Penny Logan, a senior lawyer with CAFCASS Legal, filed a Skeleton Argument setting out CAFCASS’ position.

7. Before turning to the relevant statutory framework, a short description of the local authority’s argument will set the scene.

8. At the hearing in December there was no dispute that the criteria for making a secure accommodation order were established in relation to M. There was also agreement as to the care plan for M, which included a programme of assessment and the development of a ‘mobility plan’ to enable her to leave accommodation at the end of the three month period. It was also accepted that any order should be in place for three months by the end of which time it was anticipated that M would be able to be free from any further secure accommodation order.

9. The local authority’s case is that the justices used the device of making an interim order, in a case which would otherwise have justified a final order, solely in order to keep the children’s guardian and M’s solicitor in post during the currency of the order so that they might monitor the implementation of the care plan, and if necessary, support M through the process. The local authority assert that the use of an interim order in those circumstances was impermissible and plainly wrong.

Statutory Framework
10. The relevant parts of the statutory framework are as follows. Children Act 1989, s 25 provides:

25. (1) Subject to the following provisions of this section, 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 ( “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.

(2) The Secretary of State may by regulations—
(a) specify a maximum period—
(i) beyond which a child may not be kept in secure accommodation without the authority of the court; and
(ii) for which the court may authorise a child to be kept in secure accommodation;
(b) empower the court from time to time to authorise a child to be kept in secure accommodation for such further period as the regulations may specify; and
(c) provide that applications to the court under this section shall be ade only by local authorities.

(3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.

(4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.

(5) On any adjournment of the hearing of an application under this section, a court may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation.

11. The Children (Secure Accommodation) Regulations 1991 provide that the maximum initial period that a court may authorise a local authority to keep a child in secure accommodation is three months (regulation 11), with a power to authorise a further periods of up to six months at any one time thereafter (regulation 12).

Justices’ Reasons
12. The justices’ reasons were shortly stated on the 20th December and the following extracts contain the kernel of the approach that they adopted:

‘This new application was issued on 18th December 2007. We understand that Mr O’H, solicitor for M who was previously appointed in these proceedings, has been re-appointed for this application. Likewise the same child’s guardian, DP, has been re-appointed but she has been out of the country on annual holiday and has no knowledge of the current application. On behalf of M, Mr S (counsel) concedes that the criteria for making a secure accommodation order is satisfied pursuant to section 25(1)(b) of the Children Act 1989. Mr S also accepts that the court order should be for a three month period. The dispute for us to adjudicate on today is whether the order should be a final order or an interim order’.

13. The magistrates then go on to summarise the care plan over the course of next three months and refer in brief terms to the statutory framework. On the key question of whether to make an interim or a final order they concluded as follows:

‘We are concerned that if we make a final three month secure accommodation order today, this would have the effect of discharging both the appointment of the solicitor and of the guardian. This does not seem to us to be a sensible course of action, particularly bearing in mind that M is only 15 years old and is a very vulnerable young woman. Furthermore if there are difficulties with the completion of the reports from the two doctors within the expected times scale and the ‘mobility’ does not go smoothly we deem it appropriate that both the solicitor and guardian would still be involved in the case to help and assist M. This can only be achieved by making an interim secure accommodation order which we believe will be for the benefit of M and to safeguard her security’.

Accordingly the justices made an interim secure accommodation order for three months.

Representation of the young person at the hearing.
14. In September and October 2007 M had had the benefit of representation by a solicitor and a children’s guardian. For the December hearing the same solicitor was reappointed and, whilst unable to attend for the entirety of the hearing, had instructed counsel, Mr S, to represent M at the hearing. Unfortunately the children’s guardian, DP, was out of the county and unaware that the hearing was taking place. In any event at the hearing in December M, on being told of the care plan and that it included an element of  ‘mobility’ (meaning that she would have time out away from the secure unit as the plan developed)  herself instructed her counsel that she agreed to the period of three months. Mr S was therefore able to tell the justices that the length of the order sought by the local authority, namely three months, was agreed on behalf of M.

15. During the course of submissions in this appeal I enquired as to the basis upon which counsel, Mr S, had instructions on issues relating to M’s welfare given that the guardian was unaware that she had been appointed and that any hearing was taking place. I was informed that the general approach to the case had been previously discussed between the guardian and the solicitor during the currency of the earlier application and that the solicitor had simply instructed Mr S on that basis.

16. It is plain from the justices clerk’s note of the hearing part of the submissions made in favour of an interim order by Mr S were based on the fact that the guardian was out of the country and the papers in the case had only been served two days previously.

The local authority’s argument.
17. Mr Piers Pressdee, counsel for the local authority, in a skeleton argument which is  a model of clarity, focuses in on his central point which is that, under Children Act 1989, s 25(5), the power to make an interim order only arises if the court adjourns the hearing of the local authority application. Hence, he says, the first question for the justices’ consideration should have been whether or not to adjourn the hearing, rather than whether or not to make an interim order.

18. Mr Pressdee submits that, as a matter of principle, an adjournment of an application of this sort could be warranted for: (a) reasons of procedural fairness; and/or (b) evidential purposes in order to allow the gathering of further information prior to the court making its final decision.

19. Mr Pressdee addresses these two points and invites the court to conclude that there was no need for an adjournment in order to achieve procedural fairness; the mother for understandable and acceptable reasons (which do not need to form part of this appeal judgment) was neither present nor represented and M was effectively represented through counsel and gave plain instructions which were sufficient to allow the case to proceed, further, there was no justification in adjourning the case for evidential purposes as the questions which the justices had to determine, namely whether the criteria were met, and, if so the period for which any order should be made, were not in dispute.   Indeed, Mr Pressdee says, that it is telling that within the adjournment order itself no directions were made by the justices other than simply setting the matter down for a further directions hearing in March. Thus, the local authority’s case is that there was no basis for adjourning the application.

20. In written submission made on behalf of CAFCASS Legal the general propositions as to the statutory criteria and their application to the facts of this case put forward by the other parties are accepted. It is submitted that the court’s discretion at the hearing was ‘therefore confined to the duration of the order and whether the hearing should be adjourned, with the corollary that an interim order could be made’.

21. CAFCASS draw attention to the fact that it seems that M only consented to a three month order if it was an interim order and that therefore there was a genuine difference of position over which the justices had to arbitrate. Against that submission the local authority argue that the fact that M wanted an interim order does not, of itself, give the court jurisdiction to adjourn the hearing and make an interim order if such an order is not legally permissible in any event. Dealing with that point in passing, the fact that the young person was insisting upon an interim order does not, of itself, give the court jurisdiction to grant one if it is otherwise impermissible to do so.

22. CAFCASS draw attention to the decision of Re M (Secure Accommodation) [1995] 1 FLR 418 in which Lord Justice Hoffman expressed the view that ‘the function of the guardian ad litem in an application under s 25 is to assist the court in deciding these questions’ [whether the criteria were met, taking the child’s welfare into account, and, if so, what should be the duration of the order]. CAFCASS submit that the guardian in this case had no opportunity to perform any duties and could not assist the court in the manner described by Hoffman LJ. CAFCASS further submits that this case cannot be said to fall into the ‘exceptional’ category identified by Hoffman LJ which might justify an immediate final order being made at the first hearing. CAFCASS also question whether the justices were correct to make an order for three months at that hearing, given that the guardian was not yet involved in the case. In short, CAFCASS’s position is that it questions the proposition that the final order should have been made in a case which was not exceptional and where no guardian had effectively been appointed and it questions the proposition that an interim order for as long as three months was justified.

23. The court has been assisted by a further distillation of the local authority’s position in supplemental written submissions. Within those, the local authority (as it did orally) that a much shorter adjournment than that made would have been permissible to allow the Guardian to return to the country and carry out her statutory duties.  Drawing matters together I conclude that the following matters of principle should apply when a court is faced with deciding whether or not to adjourn a secure accommodation application:

i)   A free standing application cannot be made for an interim secure accommodation order. The power to make an interim order only arises under Children Act 1989, s 25(5) if the court adjourns the hearing of the local authority’s application:

ii)    Accordingly, the preliminary procedural question for the court on any application for a secure accommodation order is whether to proceed to determine the application or whether to adjourn it. In addressing that question, the court is likely to consider:
(a) Whether the court has all the information that it needs to determine the issues raised by the application, namely (1) whether the criteria for making the order sought are met, and (2) the duration of the order (if made), and
(b) Whether it would be procedurally fair to all parties to determine the application at that hearing;

(iii) If the court is satisfied it has all the information that it needs to determine the issues raised by the application and that it would be procedurally fair to proceed, then it is likely that there will be no grounds upon which the court can properly adjourn the substantive application. In those circumstances the court must proceed to determine the application for the secure accommodation order.

(iv) As a matter of principle, if the court decides to adjourn the application, then the period of adjournment should be the minimum necessary to ensure the factors justifying an adjournment are addressed and the court has either the necessary information and or procedural fairness is ensured;

(v) The function and role of the children’s guardian within secure accommodation proceedings is to provide assistance to the court with the issues raised by the application. It is not to oversee the exercise by the local authority of its statutory duties, nor to perform some free-standing welfare role for the benefit of the child. It is not accordingly a proper use of the court’s power to prolong secure accommodation proceedings simply in order to keep a children’s guardian involved for the purposes of assisting the child, or overseeing the performance of the local authority’s statutory duties.

24. Applying those principles to the present case, I am satisfied that there were no grounds upon which the court could justify adjourning this application for a period of three months. The fact that the children’s guardian was unaware of the application, and had not been able to perform any of her duties in relation to it, was, however, a matter that did justify an adjournment for a shorter period. Depending upon the guardian’s circumstances, an adjournment for a period of, say, up to four weeks might have been appropriate. The purpose of the adjournment would be for the guardian to undertake her statutory duties and to provide a report for the assistance to the court. The judgement on this appeal is being given after the total period of three months set by the justices has in fact expired. It is therefore academic to consider what the court could or should have ordered at the expiration of a four week interim order, however, on the information that is available, it is extremely likely that a final order for a period of two months would then have been justified.

25. In making an interim order in this case the justices did not rely upon the reason that I have identified as being appropriate to support an adjournment (namely the inability of the guardian to engage in the process at that hearing). The reason given by the justices (namely to maintain the appointment of the guardian and the solicitor for the child during the currency of the three month period in order to help and assist M) was not a permissible reason for making an interim order in the absence of any other proper justification for an adjournment. Further, for the same reasons, the period of three months chosen by the justices in order for the solicitor and the children’s guardian to remain in post whilst the local authority executed their care plan and move towards M’s mobility was also impermissible.

26. I therefore will allow the local authority’s appeal and set aside the interim order made by the justices on 20th December 2007. Had this appeal been heard within a short time of the justices’ decision, I would have substituted a short interim order to permit the children’s guardian to perform her functions and directed for the matter to return to the justices for an early hearing on the question of whether a final order should or should not be made. Due to the timing of the appeal, and the acceptance by all sides that the value of the appeal was to achieve some clarity on the issue of principle, rather than affect the actual arrangements for M, the appropriate course for this court to take is simply to replace the justices order with a full final secure accommodation order for the same period of time, namely for three months from the 20th December 2007.