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Daedalus’s Twist? Secure Accommodation after a Child’s 16th Birthday

Alex Laing, barrister at Coram Chambers, examines whether, and if so on what basis, the court can place in secure accommodation a child who has celebrated his 16th birthday.

Alex Laing, Coram Chambers

Alex Laing, pupil, Coram Chambers

The step-by-step guide articulated in Ariadne's Golden Thread: Placing Children in Secure Accommodation marked this author's first steps into the secure accommodation labyrinth: it focused on whether practitioners should use section 25 of the Children Act 1989 or the inherent jurisdiction to place a child in secure accommodation.

This article examines a twist in the maze: whether, and if so on what basis, the court can place in secure accommodation a child who has celebrated his 16th birthday. It suggests that, despite a recent judicial (obiter) dictum to the contrary, such orders can be made, both under section 25 and the inherent jurisdiction.

Clarity or confusion?
In December last year, in the case of London Borough of Barking & Dagenham v SS [2014] EWHC 4436 (Fam), Hayden J felt compelled to note that:

"There has been some confusion in this case by counsel as to the scope of section 25. There need be none. The core principles seem to me clear...", at [2].

In an attempt to bring clarity, Hayden J restated the core principles. He remarked, inter alia, that:

"(7) The court does not have the power to make an order under s.25 in respect of a young person over the age of 16, but the order may be made prior to a child become 16, even if it extends beyond the child's 16th birthday...", (at [2 (7)]) (emphasis added).

This author respectfully suggests that Hayden J misstated the law. The argument is articulated through an examination of: the "...a child who is being looked after..." and the "... provided for the purpose of restricting liberty..." provisions in section 25; the requirement for the Secretary of State's approval; Hayden J's analysis; and the inherent jurisdiction.

"a child who is being looked after...": section 25 of the 1989 Act
It is well known that section 25 applies only to 'looked after' children. Namely, those:

a. Accommodated (for at least 24 hours) under section 20, excluding those over 16 and accommodated in a community home under section 20 (5)1 ("the accommodation basis"); or

b. Subject to a care order ("the care order basis").

It is worth noting that:

a. Section 20 should not be used as an alternative to an application for a care or supervision order in cases where intervention in the family is required –  and –  if the child is suffering, or is likely to suffer, significant harm, the local authority will need to consider whether or not to use their compulsory powers rather than rely on a voluntary agreement for accommodation of the child;2

b. If voluntarily accommodated, those with parental responsibility for the child could (unless the child were to agree) seek to remove him from that accommodation.3

Both the accommodation and care order bases mark the start of routes along which a section 25 order can run until the child turns 18:

a. Section 20 (3) would place a duty on the local authority to provide the child with accommodation, once 16, if he was considered "likely to be seriously prejudiced" without such accommodation. That duty would continue until the child's 18th birthday;4

b. A full care order would have to be made before the child reached the age of 175 – but, if made, could run until his 18th birthday.

There appears to be no other age-related bar to the making of a secure accommodation order in respect of a 16- or 17-year-old.

Indeed, in the case of A Metropolitan Borough Council v DB [1997]1 FLR 767, for example, the 17-year-old concerned, DB, was found to come within the provisions of section 25. There, Cazalet J granted the local authority a secure accommodation order in respect of DB, a new mother, so as to place her in the maternity ward of the hospital, thus enabling the hospital to monitor her condition and provide treatment following her eclamptic fits and Caesarean birth. It appears that the order was made on the basis that DB was under a care order, the court having directed 4 years previously that "the wardship should continue during DB's minority, thus subsequently bringing the deemed care order into being" (at p.771).

As such, the common view that the court cannot make a section 25 order in respect of a child over the age of 16 is incorrect in law.

"... provided for the purpose of restricting liberty...": section 25 of the 1989 Act
The accommodation must be designed for, or have as its primary purpose, the restriction of the child's liberty (see Ariadne's Golden Thread: Placing Children in Secure Accommodation, [Question 2]). This is a question of fact.

Any accommodation in which a deprivation of the child's liberty was incidental to its design or purpose would fall outside of the statutory scheme, and require approval under the inherent jurisdiction.7

Secretary of State's approval, the Children (Secure Accommodation) Regulations 1991 and the Children (Secure Accommodation) Amendment Regulations 1995
If the child were to be accommodated in a children's home (a registered children's home, a community home, or a voluntary home), the home would require the approval of the Secretary of State for such use8 (see Ariadne 's Golden Thread: Placing Children in Secure Accommodation, [Question 3]).

Hayden J's analysis
The authority given by Hayden J for his proposition that the cut-off point for the making of a section 25 order is a child's 16th birthday is Re G (Secure Accommodation) [2000] 2 FLR 259.

An examination of Re G [2000], however, reveals where, in the author's view, error might have crept in. The issue in that case was:

"When a child on the threshold of his sixteenth birthday is the subject of a secure accommodation order, is the judge, in exercising his discretion to determine its duration, bound to have regard to the combination of section 25(2) and regulation 5(2) of the Children (Secure Accommodation) Regulations 1991 as in combination providing a future terminus beyond which he cannot go? Is his discretion effectively restricted to the date upon which the child attains the age of 16? " (per Thorpe LJ, at [10])

The Official Solicitor's appeal against the last in a series of secure accommodation orders had been on the basis that, after the girl's 16th birthday, her accommodation would probably fall under section 20 (5), and therefore, given regulation 5(2) of the 1991 Regulations, would fall outside of the scope of section 25. Thorpe LJ did not find the submission "much more than arguable", given "The simple, and in my opinion, conclusive consideration is that on 9 December 1999 all that was theoretical future material" (both at [21]).

In May J's judgment, the legal position is set out clearly:

"The question, in my judgment is, and is only, whether if the court can make a secure accommodation order before a child's sixteenth birthday the court has power to make, in appropriate circumstances, an order whose period extends beyond the child's sixteenth birthday" (at [27]).


"In my judgment the court can make such an order. Regulation 5(2) did not apply at the date of this order, and there is nothing in s25 or elsewhere which prevents the court making an order which otherwise complies with s25 beyond the child's sixteenth birthday" (at [28]).

The headnote (correctly, in the author's view) summarises the position as:

"Held – dismissing the appeal – the court did not have power to make a secure accommodation order in respect of someone who was already 16 and who was being accommodated under s.20 (5), but did have power in appropriate circumstances to make a secure accommodation order in respect of a child who was not yet 16, and therefore not yet accommodated under s.20(5), even if the period of the order extended beyond the child's sixteenth birthday and thereafter the child's accommodation would fall under s.20(5)" (emphasis added).

The prohibition on making a section 25 order in respect of a child after his 16th birthday, then, applies in the case (and only in the case) where the child is accommodated under section 20(5). It is this specific bar that Hayden J re-frames as a principle of general application. It is here, we might respectfully suggest, that the root of the misstatement in law is found.

Indeed, May J not only picks up on the distinction between section 20(3) and (5) in the context of section 25 orders, but posits a compelling reason for it:

"It is clear that the circumstances envisaged by subs (3) are more pressing, generally speaking, than those envisaged by subs (5), and that subs (5) can extend to persons up to the age of 21. It looks as if considerations such as these may explain the thinking behind reg 5(2)" (at [26]).

Inherent jurisdiction
There is a second route by which the placement in secure accommodation of a child who is already 16 can be authorised. Namely, the inherent jurisdiction. In short:

a. "It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court... has power to direct that the child... shall be placed at and remain in a specified institution such as, for example, a hospital, a residential unit, care home or secure unit... It is equally clear that the court's powers extend to authorising that person's detention in such a place and the use of reasonable force (if necessary) to detain him and ensure that he remains there...";9

b. "In circumstances where the statutory code under section 25 is satisfied in relation to a 17-year-old child, with the exception of the requirement that the child is looked after by the local authority, it is open to the court to
exercise its inherent jurisdiction to direct that a child be detained in secure accommodation".10

The jurisdiction cannot be used to make a child who is the subject of a care order a ward of court:11 the interim care order would have to be discharged.
A local authority would require leave to apply to the High Court to exercise its inherent jurisdiction.12 The court may grant leave only if: the result could not be achieved through the making of any non-inherent jurisdiction order;13 and, there is reasonable cause to believe that, if jurisdiction is not exercised, the child is likely to suffer significant harm.14

In exercising the court's inherent jurisdiction over minors, the test to be applied by virtue of s. 1 is whether or not the order sought is in the minor's best interests.15 Also, the principles behind s. 25 must be applied.16 Detention in such cases inevitably involves a 'deprivation of liberty', and, as such must be compatible with the various requirement of Articles 5, 6 and 8 ECHR.17

The position, I suggest, is clear: both section 25 and the inherent jurisdiction permit the placement in secure accommodation of a child who is already 16. The question for local authorities, then, is which to use. For help in navigating this, turn to: Ariadne's Golden Thread: Placing Children in Secure Accommodation. 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.


Regulation 5 (2) (a) of the Children (Secure Accommodation) Regulations 1991.
2 See, for example , Children Act Advisory Committee, Final Report, pp. 29-30 (Lord Chancellor's Dept, 1997), as referred to in Butterworths, [2369.1].
3 Section 20 (7), (8), (11) of the 1989 Act.
4 "Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation", section 20(3), 1989 Act.
5 Section 31(3) of the 1989 Act.
6 Re C (Detention: Medical Treatment) [1997] 2 FLR 180.
7 Ibid.
8 Regulation 3 of the Children (Secure Accommodation) Regulations 1991, as amended by regulations 2 and 3 of the Children (Secure Accommodation) Amendment Regulations 1995.
9 Re PS (An Adult) [2007] EWHC 623 (Pam), at [16].
10 Re B (Secure Accommodation: Inherent Jurisdiction) (No. 1) [2013] EWHC 4654 (Fam), at [20].
11 Section 100(2).
12 Section 100(2).
13 Section 100(4)(a).
14 Section 100(4)(b).
15 Re C (2), headnote.
16 Re B, [21].
17 Re PS, [18]; Re B, [18]-[19], Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526.