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Protection of Children who are Seventeen

Hazel Samuriwo, In-house Advocate at London Borough of Brent, details the measures available to protect young people over seventeen years of age.



Hazel Samuriwo, In-house Advocate, London Borough of Brent


Definition of 'a child' for the purposes of child protection provisions

A child is defined in the Children Act 1989 as any person under the age of eighteen (s105). However, Parliament specifically chose to limit the court's jurisdiction to make final and substantive public law orders in respect of children who had reached the age of 17, or the married 16 year old 1.


Protection provisions under the Children Act 1989

Accommodation of children in need, under section 20

Under s 20(3) 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.

Under s 20(5) a local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

Section 20(5) is subject to a 'willing and able' parent objecting under s 2(7), and also the parent with PR removing the child under s 20(8). Any disputes about whether a parent is willing and able can only be resolved by the court. But also if the 16-year-old+ young person agrees to accommodation then this overrides the parent's objection under ss (7) and (8).

A child assessment order under section 43
A 'CAO' may be made with respect to a child, that is a young person under the age of 18, but if the child is of sufficient understanding s/he may refuse to submit to a medical or psychiatric or other assessment [section 43(7)].

Police protection under section 46
A child may be protected from harm in an emergency by a police officer taking him into police protection, without a court order, for a maximum of 72 hours. There is nothing in the CA 989 to exclude a 17 year olds

Emergency protection order under section 44
An EPO can be made in respect of young persons who are 17 and at any time up until they turn 18. However, the local authority cannot make an application to extend an EPO. This is a consequence of s45(4)(b) of the CA 1989 which does not permit an application for an EPO extension by a local authority where a local authority is not "entitled to apply for a care order with respect to a child"(see below).

Full care or supervision orders under s 31 – simply not available once 17
Under s 31(3) of the CA 1989 no [full] care or supervision order may be made with respect to a young person who has reached the age of seventeen.

Secure accommodation order under s25
Provided other criteria are met, a secure accommodation order may be made with respect to a young person who is over the age of 16 years 2.  A SAO is available only for children who are 'looked after'; either by way of an ICO under s38, a full care order under s31, or under s20 (3) of the CA 1989 3.

Therefore, for the 17 year old, it may be necessary to determine whether they are actually accommodated under s 20(3) (for whom a secure accommodation order may be made) as opposed to s 20(5) (who may not be subject to a secure accommodation order) 4.

Protection lasts for a maximum period of 72 hours (in any 28-day period) without court authority. On an application to court the maximum granted will be three months, and can be extended for up to six months on any further application.

Section 25 (9) provides that this section is subject to section 20(8), which therefore means a parent can remove a child who is subject to a SAO.

What about the Inherent Jurisdiction?
The local authority can apply for the court to exercise its power under the inherent jurisdiction, subject to s100 of the CA 1989, in respect of a 17-year old who is already in the care of or accommodated by the LA.

The inherent jurisdiction cannot be used to require a child to be accommodated or placed in the care of a LA.

The High Court in A City Council v LS & Ors (Secure Accommodation Inherent Jurisdiction) [2019] EWHC 1384 (Fam) considered a case concerning KS, a 17-year old at high risk from gang violence. The risks identified by the local authority arose from KS's involvement with gang activity, including 'county lines' drug dealing, involvement in knife crime and a recent shooting, with the associated risks of reprisals, and continuing possession of or access to firearms. KS was not the subject of any care order, and his mother had objected to accommodation under s 20 (8). The question for the court was whether the High Court has power under its inherent jurisdiction, upon the application of a local authority, to authorise the placement in secure accommodation of a 17-year old who is not looked after by that local authority within the meaning of s 22(1) of the Children Act 1989, whose parent objects to that course of action, but who is demonstrably at grave risk of serious, and possibly fatal harm. His Lordship concluded that the answer is 'no'.

In conclusion, MacDonald J found that 'it is clearly established that the High Court cannot exercise its inherent jurisdiction to grant authority to the local authority to accommodate a child where the local authority would not otherwise be able to do so under the statutory scheme.'  If KS had been a looked after child, i.e. under s20 or a care order made previously, then the inherent jurisdiction would have been available


Interim orders – their application to 17-year olds

The law – section 38 of CA 1989
As discussed above, under s 31 (3) no care or supervision order may be made with respect to a child who has reached the age of seventeen. Under s31 (11) "a care order" … includes an interim care order made under section 38.

As for duration of interim orders, the provisions of s38 (4) provide that an ICO or ISO will last until further order (usually until end of proceedings). Prior to 2014, ICOs or ISOs would last for eight weeks and local authorities had to renew the interim orders. But following an amendment brought by the Children and Families Act 2014, interim orders can last until further order, usually until conclusion of proceedings. The question that the court had to answer in the case discussed below, was whether an ICO or ISO made before age 17 could in fact continue until conclusion of care proceedings even after the young person turns 17?

Can the court make an ICO or ISO once a child is 17-years old?
The short answer is No. In the case Re Q (A Child: Interim Care Order: Jurisdiction) [2019] EWHC 512 (Fam),  it was  confirmed that the court has no power to make an ICO or ISO once a child turns 17.  In that case it was said:

"… no interim care or supervision order will endure beyond the date of a child's seventeenth birthday or the date of a child's marriage if aged sixteen. To be clear, interim care and supervision orders made for a period during which the child turns either seventeen or gets married (if aged sixteen) are impermissible [§28]…My conclusions as to jurisdiction mean that the interim care order will cease to have effect on the day Q turns seventeen…."

What is the rationale of the court's decision re interim orders?
The background to the legislation was considered helpful by the court in this instance. The 1984 the Law Commission report recommended "that orders relating to the child's residence, contact or other specific matters of upbringing should not be made in respect of a child who has reached 16 unless there are exceptional circumstances and that orders made before that age should expire then unless in exceptional circumstances the court orders otherwise. There may be exceptional cases in which it is necessary to protect an older child from the consequences of immaturity but these will be rare and the court will no doubt always wish to make the child a party before doing so." [quoted from original report at §18 of the judgment]

Recognition of the developing autonomy of the older child is something that Parliament had in mind given the various provisions which limit jurisdiction. The Law Commission report above acknowledged Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 112 which made clear that the older a child became, the less likely it was that orders would be made with which s/he did not agree. Recognition of the autonomy of the older child is also seen in the provisions of section 20 which permit a young person aged 16 to consent to accommodation in their own right over the objection of a holder of parental responsibility [section 20(11)]. [§19 & 22 & 23].

The changes brought about by the Children and Families Act 2014 to provide for interim orders lasting until conclusion of proceedings were intended to reduce the administrative burden on courts and local authorities of having to renew interim orders on a periodic basis. That this was the intention behind those legislative changes is clear from the Family Justice Review completed by Sir David Norgrove in 2011 [§24]. Also The Explanatory Notes to the 2014 Act provided that the provision was made to "remove the eight week time limit on the duration of initial interim care orders and interim supervision orders and the four week time limit on subsequent orders and allow the court to make interim orders for the length of time it sees fit, although not extending beyond the date when the relevant care or supervision order proceedings are disposed of."

Prior to the 2014 amendment no interim care order could have theoretically lasted more than seven weeks and six days beyond a child's seventeenth birthday. No new interim order could be made after a young person's seventeenth birthday 6.

Parliament chose in passing the Act to demarcate seventeen as the age after which a child could not be placed in the care or supervision of a local authority without a full disposal of the case having been achieved.

That a final care order may continue until the age of eighteen (this is the full order made before age 17) is however a recognition of the obligations placed on a local authority, once parenting has been established to fall below the reasonable standard expected, to ensure a child is not left without appropriate care before becoming an adult.

What happens to the ICO or ISO when the child turns 17 during or soon after proceedings?
The simple answer given by the court is that the ICO itself will simply cease to have effect without further order: "when the jurisdiction to make interim and final public law orders is no longer available, careful scrutiny of the circumstances of each case is required by the court in order to discern whether the proceedings themselves lack merit and whether it is proportionate and in the child's welfare interests for them to continue. Discontinuance of the proceedings is likely to be the proportionate, welfare-driven outcome in many such cases and, if that is so, the local authority should be permitted to withdraw its application. There will, however, be some cases where a useful forensic and welfare-driven purpose might be served by the continuation of public law proceedings albeit without the structure provided by interim public law orders."

What happens to the public law proceedings?
The short answer given by the court is that proceedings do not have to come to an end just because an ISO or an ICO is no longer without effect because the young person has turned 17.

The judge in Re Q said:

"I am not persuaded that these welfare-driven proceedings themselves would necessarily lack purpose and must fall away once the jurisdiction to make either interim or final public law orders is lost. In some cases, it may be crucial to establish whether the threshold criteria have been met because this might determine the basis for future decision making by a local authority, for example, as to the type of support available to the child or family concerned. Whether that exercise is necessary and proportionate will be a matter for the good sense of the judge managing/determining the proceedings."

The judge also observed that although public law orders may not be available, there may be available other orders such as a section 8 order (assuming exceptional circumstances apply) or orders under the inherent jurisdiction.

When the jurisdiction to make interim and final public law orders is no longer available, careful scrutiny of the circumstances of each case is required by the court in order to discern whether the proceedings themselves lack merit and whether it is proportionate and in the child's welfare interests for them to continue. Discontinuance of the proceedings is likely to be the proportionate, welfare-driven outcome in many such cases and, if that is so, the local authority should be permitted to withdraw its application. There will, however, be some cases where a useful forensic and welfare-driven purpose might be served by the continuation of public law proceedings, albeit without the structure provided by interim public law orders.


Summary

• Full care orders made at any time before a child turns 17 will last until the child reaches 18.

• The LA can bring care proceedings in respect of a child who is approaching 17, and it is possible for an ISO or ICO to be granted, but such interim orders will cease to have effect once the child turns 17. This operates automatically without further order.

• Proceedings that began before the 17th birthday, may continue beyond the child's 17th birthday if the court determines that there is merit, and there are strong welfare considerations, for instance to decide what support should be made available by the local authority. In most cases the court will decide that proceedings must end. Careful consideration is therefore needed before issuing proceedings where a child is fast approaching age 17.

• At age 17 the local authority is simply unable to bring care proceedings as there is no jurisdiction for public law orders at 17.

• The emergency provisions (EPO, police protection, child assessment order), though applicable to those over the age of 17, are, in practice, limited by the ability of the Gillick competent child to refuse to submit to assessment and by their limited duration (without the possibility of extension, in the case of an emergency protection order, if the local authority is not entitled to apply for a care order).

• Any recovery order made with an ICO ceases to have effect because recovery orders only apply whilst there is an ICO in place.

• Any EPO granted in respect of a 17-year old cannot be extended because under s45 (b) only a local authority with PR and entitled to apply for a full order can apply for an extension of an EPO.

• A secure accommodation order is available to the 17-year old, provided the child concerned is 'looked after' at the time (i.e. under a care order or accommodated under s20) and the other criteria are met. But SAOs last three months, and can be extended for up to six months on any further application.

• If there is no secure unit, but the LA has found a placement which may be protective, but which will result in restricting the child's liberty, then the local authority can apply for the court to exercise its powers under the inherent jurisdiction S100 of the CA 1989. This applies to a 17-year old, who is already in the care of or accommodated by the LA.


Implications


Given that the protection provisions available once a child turns 17 are limited in scope and duration, it is very important that the local authority takes action as soon as possible when a child that comes to its attention is at risk of significant harm. Legal advice needs to be sought urgently so that emergency applications can be made.

30/6/20


1
Throughout this article references to a 17-year-old include a married 16-year-old.
2 For a case in 2015 when a 17-year old was made subject to a SAO, with no care proceedings, see A Local Authority v S [2015] EWHC 3010 (Fam) (15 October 2015) For a recent case on the criteria for s25, see Para 98 in the case Re B (Secure Accommodation Order) [2019] EWCA Civ 2025, [2019] All ER (D) 152 (Nov).
3 Section 22(1) of the Children Act 1989 defines being looked after as being either "in the care of" the local authority or "provided with accommodation" by the local authority. Section 105(1) of the 1989 Act provides that any reference to a child who is "in the care of" any authority means "a child who is in their care by virtue of a care order". Section 20 of the Children Act 1989 governs the provision of accommodation for children., s 20(7) of the 1989 Act stipulates that a local authority may not provide accommodation under s 20 of the Act for a child if any person who has parental responsibility for that child objects.
4 See Re G (Secure Accommodation) [2000] 2 FLR 259. But an order may be made prior to the age of 16 to extend beyond such child's sixteenth birthday
5 The learned judge seemed well aware that his decision would shock those who would have though the court should have acceded to the local authority given the risks to KS. He said this at Para 53: "Within this context, it may also be considered by some to be surprising that the High Court cannot simply invoke its inherent jurisdiction in the manner requested by the local authority to address KS's situation. However, as Hayden J observed in London Borough of Redbridge v SNA [2015] EWHC 2140, [2015] 3 WLR 1617 at [36]:

'The High Court's inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.'"

6 The obiter dicta of Williams J in Re A (Wardship: 17-Year Old: Section 20 Accommodation) [2018] EWHC 1121 (Fam). interpret section 38(4) in a manner which would extend the jurisdiction of the court to make interim orders for a further 44 weeks or more.

1.7.20