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A Local Authority v S [2015] EWHC 3010 (Fam)

Local Authority application for a secure accommodation order under s.25 Children Act 1989 or alternatively, under the High Court’s inherent jurisdiction

An urgent application was made by a local authority for a  secure accommodation in relation to a child 'S', under section 25 of the Children Act 1989 or, if this was not applicable, under the inherent jurisdiction of the High Court. A holding order was made and the matter came before Mr Justice Bodey to consider the matter further.

S was a seventeen year old who had a difficult relationship with her mother with whom she lived. S's behaviour deteriorated and included absconding, self-harming and substance misuse. She was accommodated in June 2015 under section 20 of the Children Act 1989 but in August she left the home as they considered they could no longer manage her behaviour. S refused to go to two proposed residential homes and instead slept at a number of addresses with her partner and continued to take drugs. On 1st September 2015 S was arrested for an assault on her partner and on 7th September 2015 she entered another residential home. There she threatened to kill herself and admitted to prostitution in order to buy drugs, although she later denied this. This home was no longer willing to accommodate S as they did not consider they could keep her safe. Following significantly concerning behaviour, S was accommodated in a secure unit on 9th September 2015 on the basis of a holding order.

S asked the court not to extend her stay at the secure unit, stating that she intended to change her behaviour and she would be assisted in doing this in alternative accommodation.

Mr Justice Bodey considered that sections 25(a) and (b) of the Children Act 1989 were met in relation to S, finding that S was a child looked after by the local authority. However, he went on to consider action under the inherent jurisdiction in the event that his analysis of section 25 was incorrect. He referred himself to the guidance of Mr Justice Munby (as he then was) in Re PS (An Adult) [2007] EWHC 623, where he described it as quite clear that a judge had:

 "…the power to direct that the child or adult in question shall be placed at and remain  in a specified institution such as, for example, a hospital, residential unit, care home  or secure unit."…

 "This would inevitably be a deprivation of liberty and so would need to be  compatible with the requirements of Article 5 of the Convention on Human Rights.   In other words, the deprivation of liberty would have to be in accordance with law,  necessary and proportionate, in other words, the least interference possible to deal  with the perceived mischief."

Mr Justice Bodey found that those requirements were met in this case. He found that if the application was properly under section 25 he had a duty to make the order. If the application was to be heard under the inherent jurisdiction he had to exercise a discretion within the realms of best interests, finding it was in S' best interests to remain in the secure unit.

The secure accommodation arrangements were ordered to continue for a month.

Summary by Laura McMullan, barrister, Coram Chambers


Case No:  MB15C01228
Neutral Citation Number [2015] EWHC 3010 (Fam)

In the Family Court At Middlesbrough

Russell Street
Date: 15th October 2015

B E F O R E:

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A Local Authority 

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Compril Limited
Telephone: 01642 232324
Facsimile: 01642 244001
Denmark House
169-173 Stockton Street

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Mr Hall appeared for the Local Authority.
Miss McKie appeared for S, taking instructions from S direct.
S's mother and the Children's Guardian appeared without legal representation.
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1. This is a sad and concerning case where the life of a young woman aged 17 (whom I will call "S") has gone badly off the rails.  It is, however, a case where, fortunately, things have not got so bad that they cannot be put right; at least if S herself is willing to help herself and/or let herself be helped.

2. The Application is by a Local Authority for a secure accommodation order, whether that be under Section 25 of the Children Act 1989 or else under the inherent jurisdiction of the High Court.  The Local Authority has been represented by Mr Hall of Counsel; S has been represented by Ms McKie of Counsel, by direct instruction from S; and S's mother is here in court with S's maternal grandmother.  S also has a Children's Guardian, who has taken something of a back seat, in view of the representation which S has managed to achieve for herself directly.  Both S's mother and the Children's Guardian addressed me briefly.

3. A few days ago, on 9th October 2015, the application came as a matter of great urgency before Judge Matthews, who made a holding order and set up this hearing before me today, with a half day time estimate.  By that holding order, she authorised that S could be kept in secure accommodation until midnight tonight.

4. I have read the bundle of documents which includes most particularly a statement by S's social worker Andrea Nevet, dated 8th October 2015; a second updating statement by Andrea Nevet, dated 13th October 2015 and a very full Care Plan for S, dated 13th October 2015.  That Plan sets out the resources and input which the Local Authority have in mind for S, if she is in secure accommodation.  I have also read a report by Helen Dean, CAMHS clinician, dated 1st May 2012; a report by Dr Boyce, dated 30th April 2013, she being a Consultant Child and Adolescent Psychiatrist; a report by Dr Jerry Doyle of 11th June 2015 (also a Consultant Child and Adolescent Psychiatrist); and a report of the police 'custody liaison and diversion practitioner', Brett Lester, dated 9th October 2015. 

5. Little needs to be said about the background.  I am told that there are some disputes of emphasis between S and the Local Authority; but the matter has been capable of being conducted on submissions this afternoon.  The parties were allowed to use this morning for discussions; but unhappily they did not come to any agreed arrangements.  I would adopt the summary set out in Mr Hall's Skeleton Argument, dated 14th October 2015. 

6. Essentially, S was adopted by her parents in 2005, when she was seven years of age.  When in the care of her natural mother before that, she had had a very turbulent time.  Those early formative years have, unhappily, left their mark on her.  Her (adopted) parents separated five years or more ago, and it may be that S has missed the boundaries that may have been set and enforced more by her father than by her mother, doing her best as a single mother.  Be that as it may, her relationship with her mother, I mean her adoptive mother, has been a very difficult one and S has on occasions been arrested for physical assaults on her. 

7. In 2008, S was diagnosed by the Child and Adolescent Mental Health Service as having an Attachment Disorder.  In 2011, aged about 13, she was absconding from home and school and had begun to be sexually active.  In 2012 she was in a volatile relationship with a boyfriend, self-harming on occasions and subjecting herself to substance misuse.  These concerns pertained throughout 2013 and 2014, but escalated in 2015. 

8. In June 2015, S was accommodated by the Local Authority in what I will call the "F" residential home, under Section 20 of the Children Act 1989, that is to say with the agreement of her mother.  She frequently absented herself and indulged in substance and alcohol misuse.  She caused risks to herself and to others in that placement.  Accordingly, on 24th August 2015, S left the F residential home, because staff there felt no longer able to manage her.  She declined to go to two proposed residential homes out of area and slept at a number of addresses with her partner.  She has accepted that she was taking hard drugs.

9. On 1st September 2015, S was arrested for an assault on her partner.  On 7th September 2015, she was admitted into a further residential placement, which I will call the "G" home.  There she frequently threatened to kill herself and is reported to have admitted prostituting herself to obtain drugs, although she has since denied saying that.  After a time, the G home was not willing or able to continue to accommodate S, as they felt unable to keep her safe. 

10. There is a Chronology about all the events of 2015 (which I have briefly summarised) and that Chronology is to be found at paragraph 7 of the statement of Ms Nevet, dated 8th October 2015.  Starting in January 2015, there is a veritable catalogue in full detail of threats by S to self-harm; of her intoxication and misuse of illegal substances; of her aggressiveness; of her threats to adults and of her having jumped from a window and damaged her ankle or leg.  There are references to threats by her to jump off bridges and attempts to climb out of windows.  There are records of her running into the road and stopping strangers to ask for lifts.  There are references to her repeatedly refusing to engage with professionals.  On 24th September 2015, S got onto the roof of the F home and was threatening to jump from it. 

11. Coming right up to date, on 6th October 2015 (just a few days ago) S was collected by the police following her having absconded, and she was returned to the G home.  There she began destroying property; trying to get out of windows and stating that she was going to kill herself.  The home and the other residents had to be put on "lock down" for their safety.  She barricaded herself in her room, smashed a mirror and attempted to cut her arms, threatening to kill herself.  As a result, the police were re-called and she was taken to the local police station.  There she removed her clothes and attempted to use them to strangle herself, and was cutting her arms with a plastic knife.  Later the same day, she showed staff at the home bruising on her hip and a mark on her breast which she said was a bite mark.  She said it had been done by someone when she was "working".  There is an assertion in the Local Authority's evidence that on 8th October 2015 S was found at a train station, threatening to jump in front of a train.  I am told that she denies that allegation and so I do not propose to attach any weight to it, as there has not been any hearing of disputed matters of fact this afternoon. 

12. Following upon Her Honour Judge Matthews' order on 9th October, S was taken to a secure unit (the "H" secure unit) where she has remained over the last five or six days.  She managed this move well and went there calmly.  By and large, she has engaged well with staff. 

13. Ms McKie has said everything which can be said on behalf of S.  S, too, has addressed me herself from some notes which she wrote out in her own handwriting before coming into court.  I have had photocopies made of them for the file and have read them again in my room.  The note demonstrates the beginning of insight by S into her anti-social, self-damaging and totally unacceptable behaviours as outlined in the documents.  It demonstrates some insight into the risks and dangers which she has put herself in of the type which I have sought briefly to summarise.  S essentially makes the point that she has been much affected by her experience of the last few days in the H secure unit and now intends to turn her life around.  But she says that she would do this better if she were trusted to do it not in secure accommodation, but in circumstances where she would be free to come and go, with much less control over her.  She says that if she were to be in secure accommodation, she would inevitably be of low mood and unlikely to be so cooperative. 

14. S's mother's comment to me was, very understandably, that no mother would want to see their child locked up in secure accommodation, but that she felt at a loss as to what would be best, 'having heard all this before'.  She, S's mother, really wants someone to take this particular decision for her.  The Children's Guardian, in a brief comment, said that in effect that she thought that S should make a virtue out of a period of calm and should determine to move on in her life as and when the secure order came to an end. 

15. Under Section 25 of the Children Act:

"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, unless it appears (a) that he has a history of absconding and is likely to abscond from any other description of accommodation and, 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."

Under Section 25(4):

"If a court determines that the criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period."

16. I am satisfied, as was Her Honour Judge Matthews, that the criteria of both (a) and (b) in Section 25 are met.  It would be difficult to come to any other conclusion, having read the documentation in the bundle. 

17. There has been some suggestion however that the application is not under Section 25, but is under the inherent jurisdiction.  As I read Section 25 and there has been very little time to look into this, S is a child who is looked after by this Local Authority, a 'child' being a person who is under 18.  S is under 18.  She is being looked after by the Local Authority, under Section 20(3) of the Act, as being a child in need, who has reached the age of 16 and whose welfare the authority consider is likely to be seriously prejudiced, if they do no provide her with accommodation.  This seems to me at first blush to cover S and to put her within Section 25.

18. If this is an incorrect reading of the sections concerned in the limited time available, then one turns to the inherent jurisdiction.  In that context, I refer to the guidance of Mr Justice Munby (as he then was) in Re PS (An Adult) [2007] EWHC 623, where he described it as quite clear that a judge, exercising the inherent jurisdiction of the court, whether in respect to children or in respect of incapacitated or vulnerable adults has:

"…the power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit."

Munby J then went on to make the point that:

"This would inevitably be a deprivation of liberty and so would need to be compatible with the requirements of Article 5 of the Convention on Human Rights.  In other words, the deprivation of liberty would have to be in accordance with law, necessary and proportionate, in other words, the least interference possible to deal with the perceived mischief."

I am satisfied, if this is indeed a matter which falls to be dealt with under the inherent jurisdiction, that those requirements are met in this case. 

19. S has many very good points to which I drew attention just before lunch today, when I took stock on the progress of the parties' discussions.  These good points come out clearly on occasions.  It is reported that she has warmth; a good sense of humour; a good level of intelligence and much academic ability.  She gave a very good account of herself when speaking to me this afternoon.  Indeed, it is difficult to take on board the fact that the young woman, quite self-possessed, well-presented and seemingly confident this afternoon, is the same young woman who can behave in the many dysfunctional and risky ways of which I have read.  She needs real time, in my judgment, for things to calm down in her life.  She needs to undergo the psychological/psychiatric assessment which the Local Authority expect to be able to offer her within approximately 14 days.  She really can see this hearing as a turning point and a force for good if she has a mind to.  I urge her to do so.

20. I have considered this case and S's plea very carefully.  If the application is properly under Section 25, I have a duty to make the order; but if I am in the realms of a 'best interests' decision, then I must exercise a discretion under the Inherent Jurisdiction.  I do propose to continue the secure accommodation arrangements and to authorise such arrangements, but for the absolutely minimum time which I think will be of value to the professionals and, more importantly, to S herself.  I propose to make the order for one month. 

21. I very much hope, S, if I can address you personally, that you will realise what I said to you before lunch, which is that everyone in this court wants what is best for you.  You can do it, if you want to.  If you can turn yourself around outside of secure accommodation (as you say you can) then you can do it in a short period of secure accommodation; if you want to.  If you do disengage and if you are difficult, you will be the person who suffers most from it.  I believe that you can make this a turning-point and that you will benefit from the professional help and the psychiatric and psychological input from an assessment, which you should be getting.  But, at the end of the day, it is your life: courts and professionals can only do so much.  I do not doubt, when you say you want to make the change yourself today (without going into secure accommodation) that you mean it.  But your life has been very volatile in the past, as can be seen from reading the case histories.  If you were permitted to be in non-secure accommodation as early as today, and if you went out into the community with your partner and you were not able to stick to your word, then neither you, nor your mother, nor anyone with your interests at heart, would end up thanking me for what I had decided this afternoon.