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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W Borough Council v DK [2000] EWCA Civ 255 (29 September 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/255.html
Cite as: [2000] EWCA Civ 255
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Case No: B1/2000/3183/A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15th November 2000
THE PRESIDENT
LORD JUSTICE THORPE
and
LORD JUSTICE JUDGE
- - - - - - - - - - - - - - - - - - - - -
`W' BOROUGH COUNCIL |
Applicant | |
- and - |
||
D K |
First
Respondent | |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr E. Ryder QC and Miss C. Grundy (instructed by `W' Borough Council for the Appellant)
Miss M. de Haas QC and Mr S. Crabtree (instructed by Messrs Herwald Seddon for the Third Respondent)
Mr N. Garnham (for the Secretary of State)
Mr P. Sales and Mr N. Garnham (for the Lord Chancellor)
The First and Second Respondents and the Guardian ad Litem were not represented.
JUDGMENT
(As Approved by the Court)
© Crown Copyright
DAME ELIZABETH BUTLER -SLOSS PRESIDENT:
1. AK is 15. He was born on the 6th July 1985. His manifestly difficult problems come to be considered by the Court of Appeal in the context of an interim care order to the local authority and a series of secure accommodation orders as a result of which he has lived since the 4th December 1998 at a secure unit. The appeals is brought by AK through his own legal team against the most recent secure accommodation order made by His Honour Judge Urquhart on the 30th June 2000. That order was made to run until the 16th October 2000, the first day on which we began to hear this appeal. Miss de Haas QC for AK raised on the appeal the issue that section 25 of the Children Act 1989 was incompatible with Article 5 of the European Convention on Human Rights, made part of English domestic law by the Human Rights Act 1998. She sought a certificate of incompatibility under section 4(2). The Secretary of State for Health was, therefore, joined as a party under section 5(2). AK also claimed damages under section 8 and the Lord Chancellor was joined under section 9(4). At short notice Mr Garnham attended on behalf of the Secretary of State and Mr Sales and Mr Garnham on behalf of the Lord Chancellor. We are very grateful to them for their written and oral arguments, largely without sight of the papers. The guardian ad litem was not represented but supported the local authority. The parents were not represented and did not attend, but by letter indicated their support for the local authority.
2. The second main issue before us was the application by the local authority for a new secure accommodation order, in order to keep AK at his present secure unit beyond the 16th October. This application had been before Wilson J in Manchester and very sensibly it was agreed that this court should decide the application after hearing the appeal. We gave AK leave to appeal out of time; gave leave to the local authority to adduce further evidence and made a secure accommodation order to run until the end of the appeal. We reserved our decision.
The history
3. There is a long history of the difficulties experienced by AK and by those
looking after him starting long before he went to school. His parents married
in 1983, separated in early 1996 and divorced in August 1996. He has an elder
brother D, born in 1983, who was for some years in care. On AK´s first
day at nursery in 1987, aged 2, he was permanently excluded as a result of his
destructive behaviour. He was referred to an educationalist at the age of 4
because of his aggressive behaviour and was described by the psychologist as
being over-active to the point of being chaotic, deliberately destructive and
using provocative and abusive language. He was assessed as having moderate
learning difficulties and was admitted to a special school. The local
authority became involved in 1991 as it became increasingly difficult for his
parents to manage his behaviour. He was aggressive and physically and verbally
abusive to staff and children. On occasions he damaged school property. From
an early age he was fascinated by fire and behaved in a sexualised way.
Respite care was arranged on a number of occasions to help his family.
4. In 1993, At the age of 7, he was reported as displaying sexualised behaviour
towards a 6 year old girl. The same year he attempted to set fire to his home.
He spent longer and longer periods accommodated by the local authority in
residential care with the consent of his parents. His behaviour deteriorated
and there were regular incidents of sexualised and aggressive behaviour. In
1994, at the age of 8, He went to a residential school and spent his holidays
at home. In 1996 there was a marked deterioration in his behaviour. There were
incidents of sexualised behaviour including masturbation and exposing himself
in public. He was disruptive and in September 1996 he assaulted a female
member of staff.
5. In December 1996 the Adolescent Forensic Service at hospital P carried out a
psychiatric assessment. They considered that he did not have a mental illness
or impairment as defined under the Mental Health Act 1983, but exhibited
symptoms consistent with a diagnosis of Hyperkinetic Conduct Disorder. The
report said that:
" we believe that [A] presents a serious risk to himself and others as is
demonstrated by his recent offences, the continuation of his fire setting
behaviour, the increasing aggressive behaviour coupled with his ability to
target vulnerable members of staff and the inability to safely contain [A]
despite intensive effort at his current placement.
Our concern would include the current tendency for those caring for [A], both
professional and personal to minimise the risk he presents perhaps due to his
young age and pre-pubertal nature. This risk is likely to increase with
puberty, increasing physical size and strength."
6. The report recommended a placement in secure accommodation. In January 1997, the local authority planning committee recommended a secure placement. Since AK was only 11 years old the approval of the Secretary of State was required. This was given in April 1997. Other residential placements were tried and his behaviour improved. A further psychiatric assessment was carried out in May 1998 which concluded that:
"At present he continues to present with all the risk behaviours identified at
our initial assessment. These risks appear at present to be contained within
his current placement. However our concern would be that as [A] develops in
physical strength and size these behaviours will become more difficult to
contain. Consideration must be given to constructing a longer term strategy to
both recognise and react to this need."
7. Between October and December 1998 there was a marked deterioration in
AK´s behaviour. He was charged with two offences of indecent assault on a
girl at his placement. He was moved and moved again. He was involved in two
incidents of fire setting. He assaulted two female members of staff and was
charged with indecent assault. In November 1998 he was aggressive and
assaulted a male member of staff. This catalogue of incidents and AK's general
behaviour caused the local authority to place him in his present secure unit
and apply, for the first time, for a secure accommodation order. A guardian ad
litem was appointed. An interim order was made on the 7th December
1998 for four weeks.
8. AK had a further psychiatric assessment which concluded that he was not
suffering from a psychiatric illness. He did, however, have complex social and
educational needs and mental health problems. He continued to present a
significant risk to others through sexual aggression, even within a secure
setting. AK´s father was unhappy for AK to remain in secure accommodation
and, with the possibility of withdrawal of consent by one parent, the local
authority obtained an interim care order, as a precaution, on the
4th January 1999. In February full psychiatric assessment
confirmed the earlier reports, including sexually inappropriate behaviour,
sexual assaults, destructible and disorganised behaviour. It was thought that
he needed a structured environment which could manage his violent and sexually
aggressive behaviour and that his sexually inappropriate behaviour was likely
to respond to a behavioural therapy programme. Further applications for secure
accommodation orders were not opposed by the guardian nor by either parent.
AK, however, appealed against the refusal of the Family Proceedings Court to
allow him to attend the section 25 hearing. Wall J allowed the appeal and,
since the transfer of the case to the county court on the 28th July
1999, AK has attended the hearings. In the county court his case has been
heard throughout by Judge Urquhart who has clearly taken a great deal of
trouble over AK. He held one hearing in the secure unit and went round the
unit with AK. He has seen and talked to AK at the court hearings and has
established a rapport with him. AK likes him and has confidence in him. I
very much hope that, in due course, when the plans for AK settle down, future
applications concerning AK will continue to be heard by Judge Urquhart.
9. A clinical psychologist assessed AK in April 1999 when he was 13 years and 8
months old. He was assessed as having general, moderate learning difficulties
with a cognitive age of approximately 7 years. AK continued to exhibit
worrying behaviour which caused the principal of the secure unit to set out in
a letter, dated the 17th June 1999, his concerns about AK´s
behaviour and sexual fantasies. He reported that AK was acting out sexual
fantasies even in the controlled and highly supervised environment in which he
was placed. He posed a considerable risk to others. The principal of the unit
then said:
"The identification of babies as victims, the anger he feels during abusive
acts, the lack of victim sympathy and the impulsive urges to act out fantasies
despite supervision only reinforces my professional opinion and that of my
staff, that [A] is an extremely dangerous young man."
He felt that AK was likely to act upon his fantasies almost as soon as he
had
an opportunity to do so.
10. Enquiries were made last year throughout the country by the local authority
to try to find a more specialist unit. Of those identified, none was suitable,
or if suitable, willing to take him. He has, therefore, remained at the secure
unit. He has received appropriate education and has made progress both in
formal education and in his behaviour. His continued placement in the secure
unit has been supported by both parents and the guardian ad litem. He was seen
for a number of sessions by a senior therapist working with the Lucy Faithfull
Foundation, which AK chose to bring to an end. She expressed the view in two
reports, in November 1999 and in January 2000, that it would be possible to
work therapeutically with AK and outside a closed environment. AK was further
assessed by an adolescent forensic psychiatrist, Dr D, who did not support a
placement outside a secure unit. She confirmed the earlier psychiatric reports
and said that if AK was in an open environment he was at risk of absconding
and, if so, would be at risk himself and would be a serious risk to others.
She recommended that he should remain in secure accommodation. She also
recommended a further psychological assessment of AK to include speech and
language. He was further assessed by a clinical psychologist in April 2000,
when he was 14 and 9 months, as having verbal reasoning skills of around 8
years. Further attempts were made by the local authority in April 2000 to find
AK another placement without success.
11. In August 2000 AK described some of his sexual fantasies which gave rise to
considerable concern to those caring for him in the secure unit. It had the
effect of stopping the outside visits which had previously taken place and had
been much enjoyed by AK.
12. On the 29th September 2000, the case was transferred to the High Court. On
the 16th October just before the hearing of the appeal, Dr D
provided this Court with two reports, the second one being based on an
interview with AK at the secure unit on the 12th October. She
expressed her concerns as to AK´s competence to understand and to take
part in the court proceedings. She considered that he had made progress since
she last saw him in February but that he continued to represent a risk to
others and to be at risk from harm himself. She did not believe that his
problems could be managed in any other description of accommodation and she
considered that he continued to fulfil the criteria for detention under section
25.
13. It is worth noting that between August 1996 and April 1999, AK appeared
before a juvenile or youth court on four occasions and was, over that period,
convicted of the following offences - arson, criminal damage, burglary, common
assault, indecent assault and criminal damage caused by arson. He was also,
over the same period, cautioned for arson and criminal damage. It seems clear,
from the reports of the clinical psychologist in April 2000 and the two reports
of Dr D in October 2000, that AK falls within the criteria for mental
impairment and comes within the provisions of the Mental Health Act 1983. This
conclusion will have, it seems to me, a significant effect upon any
arrangements for AK´s long term future. AK has made it clear that he does
not want to remain in a secure unit and wishes to be placed in a normal
children´s home with a view to going eventually to live with his mother.
This is the background to the appeal by AK against the secure accommodation
order made on the 30th June 2000, the subject of this appeal.
The application for a Declaration of Incompatibility
14. Miss de Haas QC, for AK, has sought a determination by this Court that section 25 of the Children Act 1989 is incompatible with the Human Rights Act 1998, section 4(1), and for a declaration of incompatibility under section 4(2). She relied upon Article 5 of the European Convention on Human Rights.
Article 5 " Right to liberty and security" states:
"1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
(a).....
(b).....
(c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion of
having committed an offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts or
vagrants;
(f)....
5. Everyone who has been the victim of arrest or detention in contravention of
the provisions of this Article shall have an enforceable right to
compensation."
15. Section 1 of the Human Rights Act incorporates certain of the rights and fundamental freedoms set out in the Convention into English domestic law. Section 2 requires a court determining a question which has arisen in connection with a Convention right to take into account the opinions of the Commission and decisions and judgments of the European Court of Human Rights. The English courts are, so far as it is possible to do so, required to read and give effect to English legislation in such a way as is compatible with the Convention rights, (section 3(1). It is clear from sections 3 and 4 that, if English legislation is found to be incompatible with a Convention right, that legislation is, nonetheless, to continue to be applied by the domestic court. Section 4 (6) states:
" A declaration under this section (" a declaration of incompatibility")
-
(a) does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.
It is a matter for the Minister of the Crown to take the appropriate
remedial action under section 10, (see R v DPP ex parte Kebilene [1998]
3 W L R 972 per Lord Steyn at page 981).
16. The effect of sections 3 and 4 is that, in the present case, it is the duty
of this court to see if it is possible to read and give effect to section 25 of
the Children Act in accordance with Article 5 and, if it is not possible, then
this court has the jurisdiction, by section 4(5), to make a declaration of
incompatibility of section 25 with Article 5. Such a declaration has, however,
no immediate effect upon the position of AK, and if the order of Judge Urquhart
was correctly made, in accordance with the requirements of section 25, despite
the application of Miss de Haas to the contrary, there can be no immediate
challenge to the detention of AK in the secure unit. Further, if the facts
placed before this court demonstrate that AK should remain in the secure unit,
this Court must consider whether to make a new order in accordance with our
domestic law.
17. The argument on incompatibility of section 25 with the Convention right of AK under Article 5 was in two parts:
1. whether a secure accommodation order was a deprivation of liberty and, if
so;
2. whether such deprivation of liberty came within the permitted categories set
out in Article 1(a) to (f).
18. Although some argument was addressed to us that the situation of AK
might come within either or both Article 5 (c) and (e), those submissions were
not pressed, and it is not necessary in the present appeal to express a view.
If a secure accommodation order is a deprivation of liberty, for the purpose of
this appeal, the justification for keeping AK in a secure unit under section 25
comes within Article 5(d), or his detention is a breach of his Convention right
under Article 5.
19. Section 25 "Use of accommodation for restricting liberty" is as follows
"(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 secure 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) ..........
(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".
20. In the Children Secure Accommodation Regulations 1991 secure accommodation
is defined in paragraph 2(1) as:
"accommodation which is provided for the purpose of restricting the liberty of
children to whom section 25 of the Act (use of accommodation for restricting
liberty) applies"
21. The length of court orders is regulated by paragraphs 11 and 12 of the Regulations. The power of the local authority to keep a child in a secure unit for a maximum of 72 hours in any period of 28 days, in the absence of a court order, is to be found in paragraph 10.
Deprivation of liberty.
22. Miss de Haas submitted that AK´s detention in a secure unit amounted
to deprivation of his liberty. She recognised that every child was subject to
a degree of control and deprivation of free movement. Examples were given such
as - the child who was told by his mother that he cannot go out to the cinema
because he had not completed his homework or - the child in boarding school
with school rules which deprived him of free movement outside the school
grounds. She accepted that the right to liberty was not absolute and that some
deprivation of liberty did not come within Article 5. She argued, however,
that it was a question of degree, and the point came at which the restrictions
were so inhibiting that it became a breach of Article 5. She submitted that in
a secure unit, by its very nature, a child was deprived of his liberty. He
could not leave the premises and was locked in his room at night. The purpose
of the section was to restrain children who would otherwise be likely to
abscond. In order for a local authority to place the child in a secure unit,
it had to obtain the authorisation of the court for any period exceeding 72
hours and the requirement to get the authorisation of the court was a good
indication that a secure accommodation placement went beyond the extent to
which a parent could lawfully restrain a child. It was, therefore, a
deprivation of liberty which required justification within the narrow
exceptions set out in Article 5 (a) to (f).
23. On the facts of this appeal, AK was for many years accommodated
voluntarily by the local authority under Part III of the Children Act, section
20. The arrangements made for AK by the local authority were with the consent
of the parents who, until December 1998, retained parental responsibility.
From December 1998, when the first interim care order was made, parental
responsibility was shared with the local authority. Mr Garnham pointed to the
approach of the European Court that restrictions upon the liberty of a child
need not amount to deprivation of liberty. He submitted that the placing of A
in secure accommodation, particularly since it was done with the consent of the
parents, who still consented to him remaining there, was within the lawful
application of parental responsibility and was not a deprivation of liberty
within Article 5. Further, by section 22(3)(a) of the Children Act, the local
authority had a duty to safeguard and promote the welfare of the child and the
restrictions upon the liberty of AK were motivated by concerns for his welfare.
This was a proper purpose for the exercise of parental responsibility and
consistent with the duties laid on the local authority by the Children Act. He
relied upon the cases of Nielson v Denmark (1988) 11 EHRR 175 and
Family T (1990) 64 DR 176 in support of his submission that a secure
accommodation order did not amount to a deprivation of liberty.
24. Mr Ryder, who was asked at a late stage to make a submission on this issue,
indicated that the local authority would not seek to argue that a secure
accommodation order was not a deprivation of liberty. He accepted that it had
to be justified under Article 5 (1)(d).
25. In approaching the words of Article 5 of the Convention I keep in mind the
speech of Lord Hope of Craighead in Kebilene at page 988, in which he
referred to the observations of Lord Woolf that a generous and purposive
construction was to be given to that part of a constitution which protects and
entrenches fundamental rights and freedoms to which all persons in the state
are to be entitled. Lord Hope said:
" The same approach will now have to be applied in this country when issues are
raised under the Act of 1998 about the compatibility of domestic legislation
and of acts of public authorities with the fundamental rights and freedoms
which are enshrined in the Convention."
26. Robert Walker LJ in re A (Children) (22nd September 2000,
unreported) said
"The Convention is to be construed as an autonomous text, without regard to any
special rules of English law, ........"
27. It is clear that not every deprivation of liberty comes with the ambit of
Article 5. Parents are given a wide measure of discretion in the upbringing of
their children. This was recognised by the European Court in Nielson
(above) the case of a child committed to a psychiatric ward at the request
of his mother. It said at paragraph 61:
" It should be observed at the outset that family life in the Contracting
States encompasses a broad range of parental rights and responsibilities in
regard to care and custody of minor children. The care and upbringing of
children normally and necessarily require that the parents or an only parent
decide where the child must reside and also impose, or authorise others to
impose, various restrictions on the child´s liberty. Thus the children in
a school or other educational or recreational institution must abide by certain
rules which limit their freedom of movement and their liberty in other
respects. Likewise a child may have to be hospitalised for medical treatment.
Family life, in this sense, and especially the rights of parents to exercise
parental authority over their children, having due regard to their
corresponding parental responsibilities, is recognised and protected by the
Convention, in particular by Article 8. Indeed the exercise of parental rights
constitutes a fundamental element of family life."
(see also Family T (above) at page 180 following Nielson).
28. I recognise the force of the principles set out in the decisions in
Nielson and Family T (above). There is a point, however, at
which one has to stand back and say - is this within ordinary acceptable
parental restrictions upon the movements of a child or does it require
justification? In Guzzardi v Italy (1980) 3 EHRR 333 the Court said at
paragraph 92:
" The Court recalls that in proclaiming the ´right to liberty´,
paragraph 1 of Article 5 is contemplating the physical liberty of the person;
its aim is to ensure that no one should be dispossessed of this liberty in an
arbitrary fashion......In order to determine whether someone has been
´deprived of his liberty´ within the meaning of Article 5, the
starting point must be his concrete situation and account must be taken of a
whole range of criteria such as the type, duration, effects and manner of
implementation of the measure in question.
The difference between deprivation of and restriction upon liberty is
nonetheless merely one of degree or intensity, and not one of nature or
substance. Although the process of classification into one or other of these
categories sometimes proves to be no easy task in that some borderline cases
are a matter of pure opinion, the Court cannot avoid making the selection upon
which the applicability of Article 5 depends."
29. Applying those principles to the application of a secure accommodation
order upon a young person, it is clear that the purpose of section 25, as set
out in the interpretation in the regulations dependent upon it, is to restrict
the liberty of the child. The application of section 25 is not dependent upon
the making of a care or interim care order. A child can be the subject of a
secure accommodation order in circumstances in which the local authority does
not share parental responsibility with the parents. It is a benign
jurisdiction to protect the child as well as others, (see re W (Secure
Accommodation Order [1994] 2 F L R 1092 at page 1096, per Ewbank J), but it
is nonetheless restrictive. If a parent exercised those powers by detaining a
child in a similar restrictive fashion and was challenged to justify such
detention, for my part, I doubt whether the general rights and responsibilities
of a parent would cover such an exercise of parental authority. It might be
permissible for a few days but not for nearly two years. A court, under our
domestic law, would be likely to intervene. The limit of 72 hours detention
imposed by statute on a local authority without court authorisation, even in
the most extreme case, is in my view significant support for the argument that
this is a deprivation of liberty. The requirement for a court order, and for
the court to find proved the relevant criteria before the authorisation to
restrict the child´s liberty beyond 72 hours can be made, underlines, in
my view, that this is an extreme measure.
30. Miss de Haas drew our attention to the advice from the Department of Health
on the use of section 25, that restricting the liberty of children is a serious
step which must be taken only where there is no alternative, as a last resort,
(see Children Act 1989: Guidance and Regulations, Vol 1. Court Orders at para
5.1). In re M (Secure Accommodation Order) [1995] 1 F L R 418, I
referred, at page 423, to a decision by a local authority to restrict the
liberty of a child as serious and Draconian. Holman J held, in LM v Essex
County Council [1999] 1 F L R 988, that where the criteria which justified
the making of a secure accommodation order ceased to exist, there was no
justification for the local authority to continue to detain the child whom it
had agreed was to be moved into non-secure accommodation.
31. The Second Section of the European Court recently decided an application in
respect of a secure accommodation order in Koniarska v United Kingdom
(12th October 2000) (unreported). The Court declared
inadmissible an application by a girl who was 17 at the time of the
authorisation of the secure accommodation order. Although Mr Garnham argued
with some force that the Court may not have fully understood the working of
section 25, as seems evident from the judgment of the Court, that does not seem
to me to detract from its conclusion in the next paragraph:
" The next question is whether the applicant was "deprived of [her] liberty"
within the meaning of Article 5(1) of the Convention. The Court notes that the
aims of the orders under section 25 of the Children Act 1989 are (is) to
provide "secure" accommodation. No precise details have been furnished, but the
applicant likens the security regime to that of a medium to high security
prison for adult offenders, and this is not contested by the Government. The
Court finds that the applicant was deprived of her liberty from 23 November
1995 until 29 April 1996."
32. In the light of the concession by the United Kingdom Government, and for
the reasons which I have set out above, for my part, I am satisfied that a
secure accommodation order is a deprivation of liberty within the meaning of
Article 5 and requires, therefore, to come within one of the exceptions set out
in Article 5(1) so as not to be incompatible with AK´s right to liberty
under the Convention.
The exceptions under Article 5.
33. In Engel v The Netherlands (1976) 1 EHRR 647 at paragraph 57 the
European Court said:
"the list of deprivations of liberty set out [in Article 5] is
exhaustive"
(see also Ireland v The United Kingdom (1978) 2 EHRR 25 at paragraph
194).
34. Miss de Haas submitted that AK´s deprivation of liberty did not fall
within any of the exceptions within (a) to (f) and was not therefore as a
result of a lawful order. The European Court said in Bouamar v Belgium
11 EHRR 1 at page 16 para 50:
" ´Lawfulness´ however, also implies that the deprivation of liberty is in keeping with the purpose of the restrictions permissible under Article 5(1) of the Convention."
The permissible exceptions are to be given a narrow interpretation, see
Guzzardi (above) at paragraphs 98 and 100.
35. Detention under the relevant part of the exception in Article 5 (1)(d) must
be by lawful order and for the purpose of educational supervision. On the facts
of this appeal AK is receiving education which is carefully supervised, from
which he is clearly benefiting, even though there is criticism of the lack of
sufficient therapy. The submission advanced by Miss de Haas was not that the
regime was in fact unsuitable, but that educational supervision did not form
part of the relevant criteria in section 25 which, she submitted, had nothing
to do with education and but were designed to restrict liberty. Since the
criteria did not refer to education, the section was not in keeping with
Article 5(1)(d).
36. It is not necessary, in my judgment, for section 25 to refer to education
since, by the provisions of the Education Act 1996, education is compulsory for
any child under 16, (see section 7) and optional thereafter. Consequently at
the secure unit to which AK was sent in December 1998, there was a statutory
obligation to provide him with education.
37. The decision in Koniarska (above) is helpful. The facts were that
the applicant was 17 at the time of the secure accommodation order that was the
subject of the application to the European Court. She had been diagnosed as
suffering from a psychopathic disorder and there was a danger of her injuring
herself or other persons. The Court found that:
"There could thus be said to be both medical and social reasons for her
detention."
38. The Court then considered the applicability of Article 5 (1)(d), and whether it covered her detention under a section 25 order. The Court said that the only question was whether the detention was "for the purpose of" educational supervision. It considered the decision in Bouamar (above) and noted that the orders were not isolated orders for detention but were made in the context of a long history of efforts to ensure the best possible upbringing of the applicant, and that the local authority considered that the applicant needed to be placed in secure accommodation. The Court next noted that:
"the applicant had passed the school leaving age, and apart from the secure
accommodation orders could not have been required to attend continuing
education. However, the relevant parts of Article 5 (1)(d) of the Convention
are limited to the detention of "minors", and not to the detention of persons
below the official school leaving age. The mere fact that the applicant aged
17, could no longer have been required to attend ordinary school does not taint
her detention under a specific order, provided that the detention was indeed "
for the purposes of educational supervision."
The Applicant claims that the detention was not "for" the purpose of
educational supervision, but that any education which was offered was purely
incidental to the real reason for the detention, which was (in respect of the
first order) "a need for protection and containment pending the actioning of
her care plan.
The Court considers that, in the context of the detention of minors, the words
"educational supervision" must not be equated rigidly with notions of classroom
teaching. In particular, in the present context of a young person in local
authority care, educational supervision must embrace many aspects of the
exercise, by the local authority, of parental rights for the benefit and
protection of the person concerned. The Court has no doubt that the orders made
by the Magistrates Courts on the 23rd November 1995 and
23rd February 1996, on the application of the local authority, were
capable of constituting part of the "educational Supervision" of the
applicant.
As to the reality of the educational provision in the present case, the Court
notes that Glenthorne, to which the applicant was sent, is a specialist
residential facility for seriously disturbed young people. As part of its
multi-disciplinary approach, it provides an educational programme in which
young people are taught in groups of three or four, or sometimes on a
one-to-one or one-to-two basis. Until January 1996 the applicant attended a
full range of classes, and that even after an incident with another student she
attended some classes and took part in life skills and social skills
programmes. The fact that the number of classes attended by the applicant was
limited because she chose not to go cannot affect the underlying position,
which was that extensive educational provision was made, and the applicant
benefited from it to a certain extent. The present case is therefore to be
distinguished from the above-mentioned Bouamar case, in which the applicant was
detained " in a remand prison in conditions of virtual isolation and without
the assistance of staff with educational training.
The Court therefore finds that the applicant´s detention from
23rd November 1995 until 29th April 1996 was justified
under Article 5(1)(d) of the Convention as it was the detention of a minor "
for the purpose of educational supervision".
It follows therefore that this part of the application is manifestly
ill-founded within the meaning of Article 35 (3) of the Convention and it must
be rejected pursuant to Article 35(4)."
39. All the other grounds were rejected and the application was declared
inadmissible. It is interesting to note that the Court did not express any
criticism of the statutory framework of a secure accommodation order. It found
that the circumstances in which the secure accommodation order was made were
covered by Article 5 (1)(d). Those circumstances bear in many ways a close
resemblance to the facts of this appeal. In my view, the decision in
Koniarska is determinative of this part of the appeal and it is clear
that Article 5(1)(d) covers the making of a secure accommodation order in
respect of AK.
40. However, Miss de Haas submitted that a young person over 16 could be
detained under section 25 without any requirement under English law that he
should receive education. In a secure unit, which by its nature provides for
those under 18, education is likely to be available. Miss Koniarska was 17 and
was receiving educational supervision at her secure unit. Theoretically there
might be circumstances in which a section 25 order was made in respect of a
child under 18 where the words "for the purpose of educational supervision" did
not cover the facts of that particular case. Miss de Haas argued that that
possibility vitiated the entire section and made the section incompatible with
Article 5.
41. I, however, reject that argument and agree with the submission of Mr
Garnham that a distinction is to be drawn between a complaint that a step taken
by a local authority pursuant to a power granted by statute is in breach of an
Article of the Convention, and a complaint that the statutory provision is
itself incompatible with the Article. The duty of the English court under the
Human Rights Act is to attempt to find a compatible interpretation. If a
compatible interpretation can be found, there is no justification for a
declaration of incompatibility. Mr Garnham referred us to an extra-judicial
observation of Lord Cooke of Thornhill who said:
"Section 3(1) will require a very different approach to interpretation from
that to which the United Kingdom courts are accustomed. Traditionally the
search has been for the true meaning, now it will be for a possible meaning
that prevent the making of a declaration of incompatibility." (see Lester and
Pannick: Human Rights Law and Practice at 2.3.2. (Footnote 2))
42. I respectfully agree with Lord Cooke. If the situation postulated by Miss
de Haas did arise, it would be the application of a section 25 order to a
situation that would be a breach of a Convention right. That such a situation
might arise is not in my judgment a reason for declaring that the section
itself is incompatible with Article 5(1)(d). In Bouamar (above at para
52), the young man (who was under 18) was placed on 9 occasions for a total
period of 119 days in a remand prison. He was placed in virtual isolation
without the assistance of staff with educational training. The Court pointed
out that his confinement could not be regarded as furthering any educational
aim. At the time there was, in that part of Belgium, no closed institution
able to accommodate highly disturbed juveniles. The Court found that there was
a breach of Article 5. The contrast between the facts of that case and the
present appeal is obvious. Having said that, it is interesting to see that in
Bouamar (above) that the European Court also said at paragraph 50:
" The Court notes that the confinement of a juvenile in a remand prison does not necessarily contravene sub-paragraph (d), even if it is not in itself such as to provide for the person´s ´educational supervision´. As is apparent from the words ´for the purpose of´ (´pour´),the ´detention´ referred to in the text is a means of ensuring that the person concerned is placed under ´educational supervision´ but the placement does not necessarily have to be an immediate one."
43. In each case where a secure accommodation order is applied for, the
English court, at any level, must have the requirements of Article 5 (1)(d) in
mind when it is considering the relevant criteria, and thereby ensure the
compatibility of the section with the Convention right.
44. Miss de Haas raised issues in her written submissions under Articles 3, 6
and 8 but, rightly in my view, did not pursue them. It is not necessary for me
to deal with any of them. I should, however, like to comment on the way in
which the local authority gave AK every opportunity to take part in these
proceedings. Having been assessed as having a mental age of 8, one might raise
an eyebrow at his ability to give instructions and his separate representation
at various proceedings including before this Court. But there is no doubt that
it has been very beneficial for him to be allowed to play a part, and to have
some understanding of the legal procedures which have the effect of depriving
him of his liberty. I should like to commend the local authority for its
careful, conscientious and sensitive approach to this very difficult case and
to ensuring that AK has been able to play such a full part in it. I would
dismiss this appeal.
45. The issue of damages does not therefore arise but, for the reasons given in
the judgment of Judge LJ, which I have had an opportunity of reading in draft,
I agree that there would be no basis for a claim in damages against either the
court or the local authority.
Application for a new secure accomodation order.
46. I turn now to the application by the local authority for a new secure
accommodation order. It is obvious from the wealth of evidence presented to us
that, although AK has made progress in the secure unit, he remains a serious
risk to others and is at risk himself from others. It would be entirely wrong
to expose others, especially young female children, to the danger that he would
pose if he were in a non-secure environment and he would be unlikely to be able
to manage within the community without risk to himself. In the light of the
evidence before this court, and for the reasons given in the judgment of Thorpe
LJ, which I have had an opportunity of reading in draft, in my view, there
should be a further secure accommodation order to run for 4 months from 16
October 2000.
47. I would therefore grant the application of the local authority for a secure
accommodation order until 16 February 2001.
THORPE LJ.
PART 1
48. In my judgment this appeal fails comprehensively. Despite Miss de Haas'
valiant efforts most of the arguments advanced in her skeleton argument, for
instance her reliance on Articles 3, 6 and 8, crumbled at the first touch. In
the end the only question for determination is whether the order of 30 June
2000 breached A's rights under Article 5 of the Convention on and after the 2
October.
49. On its facts this is an extreme case. The principal of the secure unit
said on 26 September that AK was the most dangerous young person he had come
across in 23 years of experience. The problems of adolescent dangerousness
confront all the states of Europe and, although solutions may vary, all
necessitate the deprivation of liberty in extreme cases. It would affront
common sense to suggest that the human rights of those detained are thereby
inevitably abused. The right to liberty can not be absolute. It has a
counterbalancing duty to refrain from behaviour that is both anti-social and
criminal. In the case of minors decisions of the European Court make plain
that the right is not absolute but in certain circumstances qualified. Those
circumstances are not confined to the exceptions defined in Articles 5, (a) -
(f).
50. The first issue is therefore whether AK has been deprived of his right to
liberty guaranteed by Article 5(1). As a matter of first impression the answer
must be yes. Secure accommodation is defined in the section itself as
`accommodation provided for the purpose of restricting liberty'. However the
order authorising the restriction of AK's liberty was made on the ground that,
if kept in any other accommodation, he was likely to injure himself or other
persons.
51. Thus the primary purpose of the restriction was protective, both of AK and
of others. The secondary purpose was corrective, to enable trained and skilled
professionals to teach AK to modify his anti-social tendencies. There is no
punitive purpose or element. It is AK's tragedy that he is profoundly disabled
not only cognitively but in lacking the internal boundaries that safeguard the
majority from anti-social behaviour.
52. Without the restriction of AK's liberty there would be a disastrous
reduction in the prospects of helping AK during these most formative years to
overcome or reduce his disability by the delivery of education in its broadest
sense. In truth the restriction is vital for the promotion of his welfare
which is in reality the court's paramount consideration. Protective regimes
such as secure accommodation under the Children Act 1989 and guardianship under
the Mental Health Act 1983 may be restrictive of liberties but are not
necessarily so. Each case will depend on whether those applying the regime
exercise proper responsibility in ensuring that statutory or common law
safeguards are not breached and whether they remain faithful to the primary
protective purpose of the regime. In a case of Re W (Secure Accommodation
Order: Attendance at Court) [1994] 2 FLR 1092 it was submitted to Ewbank J
by counsel for the child that a section 25 order was equivalent to a custodial
order in a criminal court. Ewbank J rejected that argument saying:
"This jurisdiction is entirely different. It is, as the Official Solicitor
said, a benign jurisdiction. It is to protect the child, sometimes from others
and sometimes from itself, and in some cases it is necessary in order to
protect the child and to act as a good parent would act to curtail the child's
liberty for a time."
53. This analysis emphasises that plainly not all restrictions placed on the
liberty of children constitute deprivation. Obviously parents have a right and
a responsibility to restrict the liberty of their children, not only for
protective and corrective purposes, but also sometimes for a punitive purpose.
So acting they only risk breaching a child's Article 5(1) rights if they exceed
reasonable bounds. Equally parents may delegate that right and responsibility
to others. Every parent who sends a child to a boarding school delegates to
the head teacher and his staff. A local authority may even send a child to a
school that provides 52 week boarding facilities. Then restrictions on liberty
imposed by the school do not amount to a breach of the pupils rights under
Article 5(1) unless the school betrays its responsibilities to the family.
54. This reality is, it seems, well recognised in European based law. As was
said in Nielsen v Denmark 7 EHRR 175 at para 61:
"The care and upbringing of children normally and necessarily require that the
parents or an only parent decide where the child must reside and also impose,
or authorise others to impose, various restrictions on the child's liberty.
Thus the children in a school or other educational or recreational institution
must abide by certain rules which limit their freedom of movement and their
liberty in other respects. Likewise a child may have to be hospitalised for
medical treatment. Family life in this sense, and especially the rights of
parents to exercise parental authority over their children, having due regard
to their corresponding parental responsibilities, is recognised and protected
by the Convention, in particular by Article 8. Indeed the exercise of parental
rights constitutes a fundamental element of family life."
1. 55. Whilst Nielsen was a hospitalisation case, in the following year
in the case of T v Austria the court considered a complaint against the
accommodation of children in a public children's home. In reliance on
paragraph 61 of the Nielsen judgment the complaint was rejected since
the applicants had not shown that the conditions in the home deprived the
children of their liberty.
56. The European authority most relevant to the determination of the question
of whether secure accommodation in our jurisdiction necessarily curtails a
deprivation of liberty is the recent decision of the court in the case of
Koniarska v UK. The decision is on the admissibility of complaints
brought by Lucy Koniarska following her accommodation at Glenthorne Centre
authorised by secure accommodation orders under section 25. Her complaint
under Articles 5, 3 and 8 were all held to be inadmissible. However her
contention that she had suffered a deprivation of liberty was not ruled
inadmissible. Only because the deprivation was justified under Article 5(1)(d)
was that complaint ruled inadmissible. The court's reasoning is to be found at
page five where it is stated:
"The court recalls at the outset that in its Nielsen v Denmark judgment
it found that Article 5 was not applicable to the hospitalisation of the
applicant as that hospitalisation was a responsible exercise by the applicant's
mother of her custodial rights in the interest of the child. That reasoning
cannot be transposed to the present case as, although the local authority had
custodial rights over the applicant by virtue of the care order which was still
in force, the orders placing the applicant in secure accommodation were made by
the courts. There is no question of the respective courts having custodial
rights over the applicant, and so Article 5 applies in the present case."
57. Mr Garnham emphasises that this finding for the applicant only took her
across the threshold and that the government would have prevailed on any final
determination since it would have convincingly demonstrated the fallacious
reasoning in the passage cited. I accept Mr Garnham's submission. As I will
demonstrate when I come to the United Kingdom authorities, a secure
accommodation order is created by the local authority in the exercise of its
statutory duties. The role of the court is essentially supervisory, a role
undoubtedly created by parliament as a safeguard against unjustifiable or
superfluous detention.
58. From these European cases Mr Garnham develops his submission that in
consequence of the interim care order of 1 January 1999 the local authority
share parental responsibility with AK's parents. The local authority is
therefore in law doing no more in meeting AK's needs by arranging for him to be
cared for at the secure unit (necessarily under the terms of a section 25
order) than does the parent of a less disabled 15 year old who sends his child
to a boarding school. I see considerable attraction in that argument but it
does not seem to me to depend for successful foundation on the existence of an
interim care order in this case. In a sense that is a fortuitous factor which
results from the development that at one stage, although not now, the father
seemed to contemplate exercising his parental right to remove AK from secure
accommodation.
59. Mr Garnham in his submissions emphasises that the making of the interim
care order brings section 22(3)(a) into play. But AK would equally be entitled
to the protection of that sub-section as an accommodated child. The
interaction of sections 22 and 25, as well as the respective functions of the
local authority and the court in the creation of a section 25 order, were very
clearly explained by Hoffman LJ in a case of Re M (Secure Accommodation
Order) [1995] 1 FLR 418 when he said:
"The function of the court under section 25 is in my view to control the
exercise of power by the local authority rather than to exercise an independent
jurisdiction in the best interests of the child.
What form should this control take? Sub-section (3) says that the court's duty
is to determine whether `any relevant criteria' are satisfied. What are the
relevant criteria? .... In my judgment the criteria applied by the court must
be the same as those applicable to an initial decision by the local authority.
These include not only the question of whether para (a) or (b) of section 25(1)
is satisfied, but also having regard to the local authority's general duty
under section 22(3) to safeguard and promote the welfare of the child, subject
to the important qualification in section 22(6):
`If it appears to a local authority that it is necessary, for the purpose of
protecting members of the public from serious injury, to exercise their powers
with respect to a child to whom they are looking after in a manner which may
not be consistent with their duties under this section, they may do so.'
It seems to me that the question of whether a decision to keep the child in
secure accommodation would be in accordance with these statutory duties imposed
upon the local authority must be among the `relevant criteria' to be considered
by the court under section 25(3). It is said that the mandatory language of
sub-section (4) - if the court determines that the criteria are satisfied, it
`shall' make an order - suggests that the criteria must involve giving a yes or
no answer to a question of fact rather than a flexible application of general
principles. But the mandatory element in sub-section (4) is to some extent
illusory. True, the court shall make an order, but the maximum period for
which he may be kept is a matter for the court's discretion. Since there is in
practice little difference between an order for a very brief period and no
order at all, the use of the word `shall' does not seem to me to carry much
weight. Thus I think that the duty of the court is to put itself in the
position of a reasonable local authority and to ask, first, whether the
conditions in sub-section(1) are satisfied and secondly, whether it would be in
accordance with the authority's duty to safeguard and promote the welfare of
the child (but subject to the qualification in section 22(6)) for the child to
be kept in secure accommodation and if so, for how long."
60. Thus I conclude that section 25 is to be categorised like section 34 as a
section which gives the court a role to oversee the case management proposed by
the local authority and only to sanction by order such proposals as fulfil the
stated statutory criteria and are otherwise demonstrated to meet the welfare
consideration. So the restriction on AK's liberty is the consequence of a
professional judgment as to what sort of accommodation best meets his needs, a
judgment subsequently scrutinised and approved by a judge in accordance with
the statutory requirement.
61. For these reasons I accept Mr Garnham's first and bold submission that the
order of 30 June did not breach AK's section 5 rights since the deprivation of
liberty was a necessary consequence of an exercise of parental responsibility
for the protection and promotion of his welfare. I am not deterred by Mr
Ryder's skeleton, `It is accepted that the purpose of secure accommodation is
to restrict liberty' and his subsequent rejection of the opportunity to adopt
Mr Garnham's submissions.
62. Fortunately my dissent from the opinion of my lady and my lord is of little
moment since we are all very clear that if Mr Garnham fails on his first
submission his case in reliance on Article 5(1)(d) must succeed. Indeed in my
view it is unanswerable. The recent decision in Koniarska, ruling that
a contention indistinguishable from that advanced by Miss de Haas was
inadmissible, confirms a conclusion that is already clear from the wide
construction of the phrase `educational provision'. In deciding that the
contention was inadmissible the court in Koniarska stated:
"In the context of the detention of minors, the words `educational supervision'
must not be equated rigidly with notions of classroom teaching. In particular,
in the present context of a young person in local authority care, educational
supervision must embrace many aspects of the exercise, by the local authority,
of parental rights for the benefit and protection of the person concerned."
63. A decision by the court that a complaint is inadmissible amounts to a
decision that it is unarguable as Article 35(3) makes plain:
"The court shall declare inadmissible an individual application .... which it
considers incompatible with the provision of the convention ...., manifestly
ill-founded, or an abuse of the right of application."
64. Further I accept Mr Garnham's submission that education is unlikely to be
and need not be demonstrated to be the sole purpose of the detention. Article
5(1)(d) is satisfied if education is shown to be one of the purposes of
detention as the case of Bouama v Belgium 11 EHRR 1 demonstrates. Only
when there is no present or reasonably imminent educational provision does the
Article 5(1)(d) defence fail. The relevant paragraph of the judgment in Bouama
is 50 where it is stated:
"The court notes that the confinement of a juvenile in a remand prison does not
necessarily contravene sub-paragraph (d), even if it is not in itself such as
to provide for the persons `educational supervision'. As is apparent from the
words `for the purpose of' (`pour'), the `detention' referred to in the text is
a means of ensuring that the person concerned is placed under `educational
supervision', but the placement does not necessarily have to be an immediate
one. Just as Article 5(1) recognises - in sub-paragraphs (c) and (a) - the
distinction between pre-trial detention and detention after conviction, so
sub-paragraph (d) does not preclude an interim custody measure being used as a
preliminary to a regime of supervised education, without itself involving any
supervised education. In such circumstances, however the imprisonment must be
speedily followed by actual application of such a regime in a setting (open or
closed) designed and with sufficient resources for the purpose."
65. Finally Mr Garnham rightly refers to the duty imposed on parents by
section 7 of the Education Act 1996 to cause children of compulsory school age
to receive suitable and sufficient full-time education. Since AK is a child in
care that statutory duty falls on the local authority. No one has suggested
the authority is in breach of that duty.
66. For all those reasons there can be no doubt in my mind that the Article
5(1)(d) defence is well made. There is relatively clear evidence from Dr D to
suggest that AK's detention could equally be justified under Article 5(1)(e)
were the issue investigated and ventilated. On the same basis a second
alternative defence appears to lie under Article 5(1)(c).
67. Save in one area of disagreement I am in complete accord with the judgments
of my lady and my lord which I have had the opportunity of reading in draft. I
agree with the orders that my lady proposes.
68. Section 25(8) of the Children Act 1989 provides that:
"The giving of an authorisation under this section shall not prejudice any power of any court in England and Wales or Scotland to give directions relating to the child to whom the authorisation relates."
69. `The authorisation' is of course the secure accommodation order made under the terms of section 25(4). A secure accommodation order in respect of AK was first made on the 4 December 1998 and was swiftly followed by the first interim care order dated 4 January 1999. That interim care order has been regularly renewed in accordance with the local practice direction within the Liverpool County Court and this additional support for AK's regime is likely to continue for the foreseeable future. The transcript of proceedings before Judge Urquhart on 30 June demonstrates its utility. At page six of the transcript Judge Urquhart enquired of Miss Hooper, who on that day represented AK, whether she was content with a secure accommodation order then proposed to run until 27 October. There then followed this exchange:
"Miss Hooper: Yes, A has indicated that he's happy with that. I have also explained to A that there are care proceedings running parallel to this and, if there are any problems, matters can be raised within the care proceedings.
Judge Urquhart: Oh yes of course they can yes.
Miss Hooper: I have told him he is to get in contact with the office if there's anything he has concerns about."
70. This illustrates that whilst section 25 does not contemplate more than the secure accommodation order, once the court has determined the relevant criteria for keeping a child in secure accommodation are satisfied, there is room for ancillary directions to be made under the accompanying interim care order. It is therefore important to see whether the promotion of AK's welfare requires any directions to supplement the secure accommodation order made under section 25(4).
71. In my opinion the answer to that question lies in a survey of the extent to which AK's needs have been met and his welfare promoted under past secure accommodation orders. It is sufficient to confine this review to the current year.
72. The most hopeful feature of the current year is the extent to which AK has progressed both educationally and behaviourally at the secure unit. This is a tribute to the dedication and professionalism of all concerned with his management, particularly the staff at the secure unit, Doctor D and his social worker, KD, who AK himself particularly commends.
73. Nevertheless there are a number of specific points in the recent history that give rise to real concern. For much of what follows I am indebted to the very helpful and detailed report extending to 52 pages submitted by the guardian ad litem for the purposes of this appeal. In paragraph 39 he records that AK was referred to Alix Brown, Principal Therapist of the Lucy Faithful Foundation. She conducted nine sessions with AK between October and December 1999. By her interim report of 26 November she stated:
"At this point it is clear that AK is going to need long-term psychotherapy in order to address the trauma."
74. Later in the report she said:
"I believe it is possible to work therapeutically with A, but, as I have indicated, it is likely to be a lengthy process. His best chances lie in beginning the work early."
75. Unfortunately their therapeutic relationship broke down in December 1999 as AK `stated he found the sessions with Miss Brown too upsetting'. Nevertheless Alix Brown continued to advocate AK's need for psychotherapy. At a hearing on 5 May she stated that therapeutic work needed to be undertaken with AK as soon as possible and that that work would be required for a lengthy period, possibly for up to two years.
76. Although this was a free-standing opinion I suspect that it was not heeded because it accompanied an opinion that AK should move to a less restrictive placement, an opinion opposed by all other professionals and rejected by the judge. Furthermore there may have been some difference of professional opinion between Alix Brown and Dr D. Dr D in her letter to KD of 8 May stated:
"Finally it may be helpful to those working with A now and in the future to know that his intellectual ability is around that of an 8 year old child, thus it would be inappropriate to deliver therapeutic inputs to A if they would be unsuitable for an 8 year old child."
77. Her stance is amplified by her report of 12 October in which she said:
"Thus any verbal therapies aimed at helping A with his sexually abusive experiences need to be pitched at the level of a six-eight year old child. Appropriate therapies for a child of that age, creative, such as art play therapy." (Sic)
78. A further factor seems undoubtedly to have been the absence of services
in the locality. At a meeting of 14 June attended by all the professionals
including Dr D it was agreed that the best plan for AK was to remain at the
secure unit and for therapeutic work to be undertaken there by outside experts.
At the hearing on 30 June Dr D expressed the hope that the closure of the
Glenthorne Secure Treatment Unit would result in two staff members, Dr Jasper
and Dr Eps, being consequentially liberated to provide AK with the therapy that
he required. However I note that Dr Jasper is a consultant adolescent forensic
psychiatrist and Dr Eps a consultant clinical psychologist. In any event
although Dr D's report of 12 October stated that their work had commenced on 10
October, during the hearing we were told that there had been some continuing
delay. Mr Ryder told us two other things. First, although an art therapist
had been identified in the locality since 14 June, no arrangements had yet been
made for her to meet AK. Second I understood Mr Ryder to say that in the area
there is only one consultant child psychotherapist in an NHS post with an
existing case load that renders further referrals impossible.
79. From this review I draw the following conclusions:
i. There is an unresolved professional disagreement as to AK's therapeutic
needs. On the one hand Alix Brown advised the immediate commencement of
long-term psychotherapy. On the other hand Dr D favoured art or play therapy
and/or the expertise of colleagues in forensic psychiatry. Dr D's additional
view set out by Mr Ryder in his written response submitted to the court on the
third day of the appeal:
"In Dr Daly's view psychotherapy commenced after A was expelled from nursery
and has continued thereafter."
Whilst I understand that view in the sense that AK has received extraordinary
professional commitment in an endeavour to correct his behavioural problems, it
was clearly not what Alix Brown contemplated in her advice to the court in
May.
ii. Both in the locality of the secure unit and in the local authority's own
area there is a dearth of consultant child psychotherapy appointments within
the NHS. Therefore what AK ideally requires may have to yield to what is
available given that there is no other realistic placement for him at the
present time.
iii. At least in this case there is no financial impediment to meeting AK's
needs. To their great credit the `W' NHS Trust has agreed to bear the cost of
whatever services have to be bought in to meet AK's needs.
iv. This is as complex and as worrying a case as any that I have ever met. For
AK time is of the essence if he is to continue this year's progress to achieve
any sort of adult independence. Every month within the formative years between
his current age and his majority is a month of opportunity, the loss or waste
of which may prove very damaging to his longer term prospects.
v. It is a matter of concern that AK has never been referred to a consultant
child and adolescent psychiatrist for assessment and referral for treatment.
iv. It is imperative that AK's case be referred to a national resource of
ultimate expertise. During the course of argument it was agreed that the
Tavistock and Portman NHS Trust was best qualified to advise as to what could
be done as well as to what should be done. It does not seem to me necessary to
direct such a referral since Mr Ryder on instructions confirmed his client's
readiness to refer the case to the Tavistock/Portman. Whereas I was concerned
to hear from Mr Ryder that Dr D is adamantly opposed to any further referral, I
was relieved to hear that she herself regards the Portman Clinic as the centre
of excellence in the treatment of perverted and aggressive sexual urges and
fantasies. I would very much hope that the expertise of the Tavistock/Portman
Clinic will foster collaboration between all the mental health professionals,
particularly in the interests of a good outcome for AK. In my opinion a letter
of instruction to Dr Trowell at the Tavistock/Portman should be agreed by all
parties and should be expedited. Whether the Tavistock/Portman will wish to
assess AK at the secure unit is entirely a matter for their discretion. Though
the guardian and Dr D have expressed reservations at intrusive professional
involvement, the court can be confidant of Tavistock/Portman sensitivity in
this area. Until their assessment is available the re-involvement of Dr Jasper
and Dr Eps could be deferred as should the introduction of an art therapist.
Equally there would be little point in a further meeting of professionals
already involved to address therapy issues unless that meeting flowed from a
request from the Tavistock/Portman.
80. The second major area of concern arising out of a review of the past nine
months is the cessation of mobility visits. The records show that in May AK
had three days out from the secure unit, in June he had four days out, and in
July he had six days out. On 5 August he visited the American working farm.
However on the following day AK at the invitation of two members of staff spoke
of his sexual thoughts and fantasies. What he then said caused understandable
professional concern. The view of staff was that mobility visits must be
suspended and Dr D's views should be sought on the implication of these
disclosures. On 10 August KD discussed AK's position with Dr D's team at
Hospital P. They did not feel that they possessed the necessary level of
expertise to undertake therapeutic work with AK. So throughout the remainder
of the school holidays AK was deprived of either home visits or day trips. His
mother understandably felt that he was being punished for his openness.
81. I note that a visit to Birmingham's Sea World Centre on 15 April had raised
concerns as a result of remarks made by AK to his social worker after the
visit. That led to an internal assessment of future mobility visits involving
direct work with AK during the course of which AK made a variety of statements
about his past exposure to or involvement in sexual activity. Despite these
revelations in April, thereafter the mobility visits had not only continued but
increased in frequency without any mishap.
82. Furthermore I note that on 26 September, during the course of a
conversation with the guardian AK said:
"I think the fantasies in sexualised behaviour are in the past .... as I am
growing up I am learning to grow out of it. I've said A you need to grow out
of these things and you'll get somewhere with your life if you do."
83. Equally in interview with Dr D on 12 October AK said that as far as his
sexual behaviour is concerned he feels that this is resolved because he has
written it all down in a book and all he is thinking about now is schoolwork.
I have not heard any explicit evaluation from the guardian or Dr D of these
reassurances. However Dr D records that when she checked with the staff on 12
October they did not accept AK's assertions although they accepted that he had
learned to recognise when his behaviour is becoming sexualised and to seek
their help to contain the onset.
84. From this review I conclude, of course with the advantage of hindsight,
that there should have been greater urgency in the determination of whether and
for how long AK's words on 6 August required the suspension of outside visits.
At least Mr Ryder was able to inform us that AK had enjoyed a home visit on 8
October and that a further visit had been fixed for 29 October. There needs to
be a firm foundation for any continuing withdrawal of occasional trips, to the
shops and to the cinema for example, such as AK enjoyed in July.
85. In reviewing the written reports covering the recent past I had an
additional concern that genetic and hormone testing recommended by Dr D on 29
February had still not been carried out. However that concern was answered at
the hearing by Mr Ryder's written response.
86. In summary, whilst I am completely persuaded that this court has no
alternative but to make the secure accommodation order which my lady proposes
it is incumbent upon all who hold professional responsibility for AK during its
course to ensure that as well as protective it is also enhancing in order to
ensure that it could not be interpreted by AK or by anyone else as either
punitive or stunting his potential for continuing progress. I am relieved that
my lady has made arrangements to ensure that at the end of the period
prescribed by our order there will be a review by Wall J who will review with
hindsight the months that we view prospectively and will with that advantage
make such further orders under Parts III and IV of the Act as are best
calculated to direct AK's future progress.
JUDGE LJ
87. The circumstances in which a secure accommodation order may be made under
s25 of the Children Act 1989 are prescribed by statute. Therefore to evaluate
the sustained submission by Miss de Haas QC that such an order is incompatible
with Article 5 of the European Convention of Human Rights, the starting point
is the relevant statutory framework.
88. Part III of the Act imposes substantial obligations on Local Authorities to
provide support for children and their families. There is a duty
".........(a) to safeguard and promote the welfare of their children within
their area who are in need; and
(c) so far as is consistent with that duty, to promote the upbringing of such
children by their families,
by providing a range and level of services appropriate to those children's
needs." (s17(1))"
A child is "in need" if
"..... (a) he is unlikely to achieve or maintain, or to have the opportunity of
achieving or maintaining, a reasonable standard of health or development
without the provision for him of services by a local authority......;
(c) his health or development is likely to be significantly impaired, or
further impaired, without the provision for him of such services ......"
In this context "health" refers both to physical and mental health, and
"development" is concerned with the child's "physical, intellectual, emotional,
social or behavioural development".
89. The child "in need" must be provided with accommodation if he has been lost
or abandoned, or there is no-one with parental responsibility for him, or when
the person caring for him has been prevented from providing suitable
accommodation or care (s20). The provision of such accommodation is not
sustainable in the face of objection from a person with parental responsibility
who is willing and able to provide accommodation, or arrange for it, and,
unless a residence order or care order is made, the child may be removed from
the accommodation. Provision must also be made by the local authority for the
child who has been put under police protection or detained by the police. In
such cases, too, the parental wishes cannot supervene.
90. Where the child is being "looked after" by the local authority, (s22, that
is in the care of the local authority under s31, or provided with
accommodation) the focus remains the child's welfare, which must be safeguarded
and promoted. Moreover the authority must "advise, assist and befriend (him)
with a view to promoting his welfare when he ceases to be looked after by
them". (s24(i)). Unfortunately as the public needs to be protected from some
of the children who are being looked after by the local authority, for that
purpose only, the welfare of the child may have to yield its priority to the
need to protect the public from serious injury (s22(6)).
91. In addition to children who are being "looked after" by the local
authority, there are those for whom there is a responsibility much more akin to
that of a parent. No doubt to reflect this increased responsibility, and the
corresponding degree of interference in the life of a child, and perhaps also
his parents, care and supervision orders under s31 are not imposed on a child
by the local authority Any order is made by the court, which must be satisfied
that:
".......(a) the child concerned is suffering, or is likely to suffer,
significant harm; and
(b) that the harm, or likelihood of harm, is attributable to
(i) the care given to the child, or likely to be given to him if the order were
not made, not what it would be reasonable to expect a parent to give to him;
or
(ii) the child's being beyond parental control."
S31(10) defines "harm" as "ill-treatment or the impairment of health or
development" and health and development are defined in precisely the same wide
terms as before.
92. In the present case AK is subject to an interim care order.
93. These various strands in the arrangements for children who are being looked
after by and subject to a care order culminates, where necessary, in the
provision of secure accommodation under s25. For present purposes, the
significant feature of such an order is that the liberty of the child will be
restricted. That indeed is its express purpose, repeated in the Children
(Secure Accommodation) Regulations 1991, and confirmed in Guidance to Secure
Accommodation Orders. This is quite unequivocal in its advice, emphasising as
it does that a secure accommodation order is "a serious step which must be
taken only when there is no genuine alternative which would be appropriate. It
must be a `last resort' in the sense that all else must first have been
comprehensively considered and rejected - never because no other placement was
available at the relevant time, because of inadequacies in staffing, because
the child is simply being a nuisance or runs away from his accommodation and is
not likely to suffer significant harm in doing so, and never as a form of
punishment". The order creates additional control over the child, and extends
both to the child who is absconding, that is leaving accommodation as and when
he wants to and so putting himself at risk of serious harm, and to the child in
care because he is beyond parental control.
94. Even if it is faithfully applying the Guidance to Secure Accommodation
Orders, the local authority, again, cannot impose such an order on its own
initiative. The child's liberty may only be curtailed if the order is
authorised by the court. The jurisdiction to make it depends on the local
authority satisfying the court
".....(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."
In Koniarska's Application (12 October 2000), the language used in its
judgment by the Commission suggests a misapprehension of this statutory
position. The local authority's "custodial rights" over the child continued
throughout, and the order made by the court authorised the use of secure
accommodation. The court's involvement represented not an interference with
the liberty of the child, but rather a safeguard against unacceptable and
unjustified interference with it.
95. It is worth re-emphasising that it is a pre-requisite to the order that the
child is being "looked after" by the local authority. There is therefore a
continuing duty to safeguard and promote the welfare of the child. This point
was emphasised by Hoffmann LJ in Re M (Secure Accommodation Order)
[1995] 1 FLR 418 at 427 where he said,
"The duty of the court is to itself in the position of a reasonable local
authority and to ask, first, whether the conditions in subs (1) are satisfied
and secondly, whether it would be in accordance with the authority's duty to
safeguard and promote the welfare of the child (but subject to the
qualification in s22(6)) for the child to be kept in secure accommodation and
if so, for how long."
The final consideration is that the child also needs, and must continue to be
provided with education, in the formal sense. Where the local authority
"propose to provide accommodation.... in an establishment at which education is
provided for children who are accommodated there", they must embark on a
sensible consultation process with the appropriate local education authority.
The statutory obligation to ensure that formal education continues (s7 of the
Education Act 1996), at any rate until the child reaches the age of sixteen,
survives the making of a secure accommodation order.
96. The order cannot be made in respect of a child subject to "punishment"
imposed on conviction of major crimes (s53 of the Children & Young Persons
Act 1933), or detained under formal procedures for the purposes of the Mental
Health Act. Unfortunately there is no avoiding the harsh reality that some
children who have neither been convicted of very serious offences nor made
subject to orders under the Mental Health Act, are likely to injure themselves,
or others, unless they are accommodated in secure premises.
97. In summary s25 therefore forms part of the overall framework for the
support and welfare of children who present particular difficulties and who for
their own protection and that of others, and to ensure their continuing
education, require that the accommodation in which they are being looked after
should be secure. The necessary authorisation in domestic law, enabling the
local authority to restrict the liberty of such children is provided by the
court order. Although the maximum length of any order must be specified, the
question whether this authorisation should be used, and if so for how long and
in what degree, remains with the local authority. If and when the statutory
conditions cease to apply, the order may no longer be enforced. (LM v Essex
County Council [1999] 1 FLR 988.
98. Miss de Haas argued that the order purporting to provide the legal
justification for the restriction on AK's liberty was deficient for this
purpose, not because the statutory criteria were not established, nor the
appropriate procedure followed, but because such an order, even when the
statutory criteria are established, and proper procedures followed, contravenes
Article 5 of the ECHR, or more particularly, that the order falls outside the
narrow ambit of the prescribed circumstances in which an individual may be
deprived of his liberty. In short therefore the use of secure accommodation
for the purposes of restricting liberty under s25 is incompatible with Article
5. S25, which purported to provide the justification for the restriction on
AK's liberty, should therefore be declared "incompatible" with a Convention
right in accordance with s4(2) of the Human Rights Act 1998, and indeed damages
should be awarded for AK's detention, in accordance with Article 5.5. Article
5 provides:
"1 Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by the law:
a the lawful detention of a person after conviction by a competent court;
b the lawful arrest or detention of a person for non-compliance with the
lawful order of a court or an order to secure the fulfilment of any obligation
prescribed by law;
c the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion of
having committed an offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done so;
d the detention of a minor by lawful order for the purpose of educational
supervision or his lawful detention for the purpose of bringing him before the
competent legal authority;
e the lawful detention of persons for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or drug addicts or
vagrants;
f the lawful arrest or detention of a person to prevent his effecting an
unauthorised entry into the country or of a person against whom action is being
taken with a view to deportation or extradition."
99. Mr Garnham's first submission on behalf of the Secretary of State was that
AK had not been deprived of his liberty for the purposes of Article 5. The
local authority had simply exercised parental responsibility for him in his own
best interests. There was some interesting discussion about the way in which
parents restrict the movements of their children from time to time, by, for
example, putting young children into bed when they would rather be up, or
"grounding" teenagers when they would prefer to be partying with their friends,
or sending children to boarding schools, entrusting the schools with authority
to restrict their movements. All this reflects the normal working of family
life, in which parents are responsible for bringing up, teaching, enlightening
and disciplining their children as necessary and appropriate, and into which
the law and local authorities should only intervene when the parents' behaviour
can fairly be stigmatised as cruel or abusive.
100. It is not necessary to deal with any argument that such parental behaviour
might constitute an interference with a child's liberty or contravene his
"human rights". No such absurdity was advanced. What however does arise for
decision is whether what I have described as normal family life goes anywhere
near what the local authority is empowered to do by a secure accommodation
order.
101. By definition, the making of the order means that if accommodation less
than adequate for the purpose of restricting liberty is provided, the child is
likely to suffer significant harm because there is a history and continuing
risk of absconding with a likelihood of significant harm or injury to himself
or others. This means that he requires far more supervision and attention than
any normal parent could reasonably provide or be expected to provide, and in
accommodation which none of them have, that is accommodation provided for the
very purpose of restricting a child's freedom. This is miles away from
"grounding" a teenager, or ensuring that a group of teenagers at a boarding
school are all back within school bounds by a certain time each evening, or any
other manifestation of normal parental control. If the restrictions
necessarily imposed on AK for his own safety and that of others were imposed on
an ordinary boy of fifteen, who did not pose the problems requiring a secure
accommodation order, in my view, there would be a strong case that his parents
were ill-treating him. As it is, the local authority have been obliged, as a
"last resort", to seek authorisation to impose restrictions on the boy's
liberty which would otherwise be unacceptable, whether imposed by his parents
or anyone else. That, as it seems to me, is the point of the unequivocal
statutory language. The purpose is to restrict liberty, and there would be no
point in such a restriction or the need for it to be authorised by the court,
if it were not anticipated that much more was involved than ordinary parental
control. It would have been enough to leave the local authority to exercise
its parental responsibilities under s33(3)(a) in relation to care, or to
provide that the local authority should exercise such parental responsibilities
in relation to children it was looking after, or to re-enact s10(2) of the
Child Care Act 1980, in a modified form, so that it would read something like
"a local authority shall ..... have the same powers and duties with respect to
a person who is being looked after by it .... as his parents or guardian would
have and may ...... restrict his liberty to such extent as the authority
considers appropriate".
102. In short, although normal parental control over the movements of a child
may be exercised by the local authority over a child in its care, the
implementation of a secure accommodation order does not represent normal
parental control.
103. This conclusion is reinforced by the further consideration that an order
under s25 may be made in respect of a child who is not subject to a care order
under s31. As already indicated, it is enough that the local authority is
"looking after" the child, and if it is doing so under s22(1)(b) (provision of
accommodation) rather than s22(1)(a) (care) parental responsibilities are not
in issue. In other words the secure accommodation order with its restrictions
on liberty may be granted to the local authority in respect of children who are
not in care and in relation to whom the local authority has no parental
responsibility. This tends to confirm that s25 is intended to reflect far
wider restrictions on liberty than those which arise in a normal family
situation.
104. In this case the evidence of the regime adopted for AK demonstrates that
after the order under s25(4) was made he was deprived of his liberty.
105. Miss de Haas submitted that the purported justification, that is the order
of the court under s25, was outwith Article 5.1(a)-(f). For all the
understandable emphasis she placed on the thrust of decisions of the European
Court of Human Rights that Article 5 itself provides a "comprehensive" or an
"exhaustive" definition of the circumstances in which an individual may be
deprived of his liberty (see for example Ireland v UK [1978] 2 EHRR 25),
there is at least one critical respect in which the court itself accepted that
the principle is not absolute.
"The care and upbringing of children normally and necessarily require the
parents or an only parent to decide where the child must reside and also
impose, or authorise others to impose, various restrictions on the child's
liberty. Thus the children in a school or other educational or recreational
institution must abide by certain rules which limit their freedom of movement
and their liberty in other respects ...... Family life in this sense, and
especially the rights of parents to exercise parental authority over their
children, having due regard to their corresponding parental responsibilities,
is recognised and protected by the Convention." (Neilsen v Denmark
[1988] 11 EHRR 175 at 191).
106. It is therefore clear that, notwithstanding the absence of any express
reference to the position of a parent in Article 5, for the purposes of the
Convention the liberty of a child may be constrained by anyone with parental
responsibilities for him, properly exercising "custodial rights". Paragraph
(d) is exclusively concerned with and limited to minors and although loosely
described in conversation, or in oral argument as "education", the permitted
restriction is in much wider language, "for the purpose of educational
supervision".
107. This goes far beyond school. It is not just about the restriction on
liberty involved in requiring a reluctant child to remain at school for the
school day. It arises in the context of the responsibilities of parents which
extend well beyond ensuring the child's attendance at school. So it involves
education in the broad sense, similar, I would respectfully suggest, to the
general development of the child's physical, intellectual, emotional, social
and behavioural abilities, all of which have to be encouraged by responsible
parents, as part of his upbringing and education, and for this purpose, an
appropriate level of supervision of the child to enhance his development, where
necessary, by restricting his liberty is permitted. If less were involved than
this, there would be no purpose in including "educational supervision" as an
express restriction on the right of a minor to liberty: the recognition of
"custodial rights" and parental responsibilities would have sufficed. It is,
of course, quite unreal for anyone to decide in theory, or for rigid guidelines
to be laid down in advance, about the appropriate level of educational
supervision which may be required by an individual child. The purpose of this
order, and its implementation by the local authority, is to provide the best
available environment to enable AK's education, both in the narrow and broad
senses, under the degree of supervision and control necessary to avoid harm or
injury to himself, and to improve his prospects of avoiding both in the long
term as well as the immediate future. I should add, that if AK were to cause
injury to others which in the remotest degree corresponded to his fantasies,
apart from any injury to them, the end result would be significant harm to him,
with the major risk of conviction for a desperately serious crime, and a
correspondingly severe sentence.
108. In summary, the normal standards of acceptable parental control are
undiminished by, indeed consistent with the Convention. Therefore the
restriction in Article 5(1)(d) is specifically directed to the situation of
those minors who are beyond such normal control. Prosecution and punishment do
not invariably present the most efficacious solution to the behavioural
problems of children and young persons, and their long term development,
whether viewed entirely as a matter of their own self-interest or the general
benefit of the community as a whole. There is much to be gained if the
underlying causes of the misbehaviour of a child or young person can be
examined and addressed. Hence the need to allow restrictions on the liberty of
minors with such problems, which goes beyond normal parental control and allows
for the educational supervision. The Convention is not an appropriate
instrument for spelling out precisely what form this may take or its limits.
As Mr Garnham's helpful analysis of the differing procedures adopted in many of
the countries adherent to the Convention demonstrates, there are different
traditions and regimes for dealing with troublesome as well as the criminal
young. All these command respect, and the Convention is not an appropriate
instrument for spelling out precisely what form this should take, and which
particular regime is acceptable.
109. I have examined these conclusions by taking account of decisions from the
European Court. Two features are of immediate significance. The first is that
although the problems posed by children like AK are plainly anticipated in
most, and I would assume every other, European country, there are so few cases
involving juveniles or minors in which these issues have been examined, and the
second is that where they have, they tend to confirm that the European Court
would follow the same process of reasoning which I have endeavoured to explain.
110. In Bouamar v Belgium [1987] 11 EHRR 1 the European Court of Human
Rights was considering statutory provisions for the judicial protection of
juveniles. The orders available to the domestic court culminated in the power
to place the juvenile in a State reformatory. Such reformatories are divided
between "open" institutions, where the inmates live "under a regime of
semi-liberty", and "closed" institutions - "for highly disturbed young people
-" which presumably are entirely secure, certainly no less secure than the
accommodation provided under a secure accommodation order.
111. The judgment of the court included the following passage, at p16:
"The court notes that the confinement of a juvenile in a remand prison does not
necessarily contravene sub-paragraph (d), even if it is not in itself such as
to provide for the persons' educational supervision.
As is apparent from the words `for the purpose of' (`pour'), the "detention"
referred to ..... is a means of ensuring that the person concerned is placed
under `educational supervision' but the placement does not necessarily have to
be an immediate one.... However the imprisonment must be speedily followed by
an actual application of such a regime in a setting (open or closed) designed
and with sufficient resources for the purpose."
112. In short therefore, provided the inmate was receiving supervised
education, the provision and use of closed institutions for very disturbed
young people was not struck down.
113. In the very recent decision of the Commission in Koniarska, s25
itself was directly under consideration. The application was declared
inadmissible. Significantly the Commission did not question or impugn the
principle of a secure accommodation order. Moreover although Article 5(1)(e)
might well have provided a proper justification for the restrictions on
Koniarska's liberty, the Commission proceeded on the basis that the order fell
within Article 5(1)(d).
114. The case was dismissed, in effect, as unarguable. The Court observed
that,
"........ In the context of the detention of minors, the words `educational
supervision' must not be equated rigidly with notions of classroom teaching.
In particular, in the present context of a young person in local authority
care, educational supervision must embrace many aspects of the exercise, by the
local authority, of parental rights for the benefit and protection of the
person concerned. The court has no doubt that the orders made ..... on the
application of the local authority, were capable of constituting part of the
"educational supervision" of the applicant."
115. So far as this part of the judgment is concerned, I can see no sensible
ground for distinguishing the decision in Koniarska from the present
case.
116. Accordingly, in my judgment the principle is simply expressed: the concept
of "educational supervision" goes well beyond either normal parental control or
academic lessons taught in the classroom, but, to the extent that the
arrangements for the welfare of the child interfere with his liberty beyond the
interference envisaged in normal parental control, and to avoid any arbitrary
exercise of power by a local authority, judicial authorisation is required.
That is provided by s25(4). In this case the secure accommodation order was
properly made. I can find no inconsistency or incompatibility between such an
order under s25 and the practical application of the Convention rights under
Article 5. A declaration of incompatibility should be refused.
117. I should briefly note that in the papers prepared before the hearing it
was suggested on behalf of AK that his rights under Articles 3,6, and 8 had
also been infringed. The arguments were not pursued at the oral hearing, in my
view, rightly. Beyond that I shall make no further observation, save to add
that, again, at the hearing no argument was addressed to the question whether
the restrictions on AK's liberty may not have been justified under paragraph
(c) (reasonably ..... necessary to prevent his committing an offence) or (e)
(detention ..... of persons of unsound mind).
118. This conclusion means that it is no longer essential to consider the
consequences which would have arisen if s25 had been declared incompatible with
the Convention. Miss de Haas suggested that the consequence of any such
declaration would have been that AK was entitled to damages in accordance with
Article 5.5. This provides:
"Everyone who has been the victim of arrest or detention in contravention of
the provisions of this Article shall have an enforceable right to
compensation"
119. During the course of the argument I described the submission as
"stunning". The time we have taken to reflect on our judgments has not
diminished my sense of astonishment. In fairness to Miss de Haas, I must
briefly explain why.
120. If the argument were correct the implementation of the Human Rights Act
1998, on 2 October 2000, would have produced a constitutional earthquake.
Parliament would have undermined the principle of Parliamentary sovereignty,
and revived Sir Edward Coke CJ's dictum in Bonham's case [1610] 8 Co
118a that ".......... the common law will controul acts of parliament and
sometimes adjudge them to be utterly void.....", a principle identified by Coke
in order to impose some fetter on the extravagant royal concept of the
prerogative, a controversy eventually settled in this country by the Revolution
of 1688. And it would effectively "set the judicial power above that of the
legislature.....", emphatically described in 1765 by Blackstone in the 1st
edition of his Commentaries, some 150 years before universal adult suffrage was
established, as "subversive of all government". (For a still vivid analysis of
Bonham's Case in its historical context, the relationship of the
legislature and the judiciary, and the development of divergent constitutional
routes in this country and the United States of America, see TFT Plunknett's
article, first published in 1926, Bonham's Case and Judicial Review, Studies in
English Legal History XIV.)
121. It may on another occasion be appropriate to examine whether the
sovereignty of Parliament empowers it to dispense with or divert itself of its
own or any part of its sovereignty, but so far as the Human Rights Act 1998 is
concerned, this question simply does not arise. Neither this nor any other
court is empowered to repeal or amend, ignore or act contrary to any single
statute, or any part of any statute. To the contrary: the Act is carefully
drafted to ensure that the court cannot and must not strike down or dispense
with any single item of primary legislation.
122. The reason is simple. If satisfied that a statute is indeed incompatible
with a Convention right, the most that the Human Rights Act 1998 empowers this
court to do is to make an appropriate declaration. The declaration gives no
right by way of compensation. S4(6) is quite unequivocal.
"A declaration under this section (`a declaration of incompatibility') -
(a) does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made."
123. The effect of a declaration of incompatibility is that remedial action may
be taken by a Minister of the Crown to make whatever amendments to the primary
legislation are thought necessary to remove the incompatibility. So,
notwithstanding the declaration, the statutory provision continues in force
until such time as it is amended, if indeed that ever happens. And until it
does, the law which judges must apply includes the statutory provision which
has been declared to be incompatible.
124. In R v DPP, ex parte Kebeline [1998] 3 WLR 972, at 981, Lord Steyn
encapsulated the principle in unambiguous language:
"It is crystal clear that the carefully and subtlety drafted Human Rights Act
1998 preserves the principle of Parliamentary Sovereignty. In a case of
incompatibility ..... the courts may not disapply the legislation. The court
may merely issue a declaration of incompatibility which then gives rise to a
power to take remedial action."
125. Miss de Haas suggested that on the basis that AK's detention under the
secure accommodation order was incompatible with the Convention, then Article
5.5. created an enforceable right to damages, certainly with effect from 2
October. From that date there would remain no sufficient justification for the
regime in to which the local authority had detained AK, or for the order
itself. She referred to s9(3):
"In proceedings under this Act in respect of a judicial act done in good faith,
damages may not be awarded otherwise than to compensate a person to the extent
required by Article 5(5) of the Convention."
126. From there she worked backwards through s7(1) to s6(1) which makes it
".....unlawful for a public authority to act in a way which is incompatible
with a Convention right."
127. The simple answer to this submission is that s6(1) is expressly made
subject to s6(2), and any subsequent reference to s6(1) in the Act is itself
also subject to s6(2). This provides:
"Subsection (1) does not apply to an Act if
(a) as a result of one or more provisions of primary legislation, the authority
could not have acted different; or
(b) in the case of, or made under, primary legislation which cannot be read or
given effect in a way which is compatible with Convention rights, the authority
was acting so as to give effect to or enforce those provisions."
128. So far as domestic courts are concerned, even if s25 were incompatible
with AK's Convention rights, it would continue to protect both the Court and
the local authority from any claim under Article 5.5.
129. It may just be worth touching on the practical consequences of Miss de
Haas' submission in the day to day running of the judicial system. On this
basis this court would have seen fit to make a declaration of incompatibility.
Nevertheless s25 would continue in force. Yet the right to damages under
Article 5.5 would arise every time such an order was made, while
simultaneously, judges up and down the country, when satisfied that the
conditions leading to a secure accommodation order were established, would
remain under a continuing obligation to apply s25. In some court buildings,
one judge would be making an award of damages to a minor who had been deprived
of his liberty on the basis of an s25 order: in the court next door, another
judge would continue to make s25 orders in relation to different children.
Indeed it is not too fanciful in some of the smaller courts to foresee the same
judge making an order under s25 in relation to the first case in his list, and
if Miss de Haas were right, in the afternoon case to assess damages for a child
which had been made subject to an s25 order on an earlier occasion. It would
be nonsense for the local authority, or the court, properly fulfilling the
duties imposed on it by an unrepealed, unamended statute simultaneously to
render itself liable to an order for damages in another domestic court on the
basis of this Convention right. The end result would be that the court, and
the local authorities, would abdicate their statutory responsibilities and in
practice dispense with or fail to apply s25, while s25 remained on the statute
book as the statutory scheme intended by Parliament to provide protection for
children from injury and harm. The result would be, at best a constitutional
mess, and at worst something of a constitutional crisis.
130. The Human Rights Act does not create a system of justice which leaves the
domestic court floundering between primary legislation and the Convention and
electing which is to be applied. Where incompatibility is found, generally
speaking at any rate, the court is required to declare it. Nevertheless the
law which the court must enforce is the law as it is, even if it is
incompatible with the Convention.
131. Miss de Haas did not direct any argument to the consequences of a finding
of incompatibility on the continued "detention" of AK in secure accommodation.
I have not examined the potential difficulties which would arise, if Miss de
Haas were right, in the context of Article 5.4. It is enough to record that
they would be extreme. And, in view of the fact that a declaration of
incompatibility would not be appropriate in this case, it has also been
unnecessary to examine the additional arguments deployed by Mr Phillip Sales on
this part of the case.
132. I agree both that the appeal should be dismissed, and that the application
for a secure accommodation order should be granted.
Order: Appeal dismissed; no secure accommodation order until 16th
February 2001 and detailed assessment of the Appellant's costs.