England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(MR JUSTICE JOHNSON)

		Royal Courts of Justice Strand, London WC2A 2LL Tuesday, 3rd April 2001

LORD JUSTICE THORPE:

1. C was born on 3 July 1985. From a statement signed by Andrea Johnson on 11 January 2001 we see that social services had been involved with her family for at least five years preceding her birth. When C was approximately 2½ years social services were again involved after a separation between her parents that left C and her sister in the care of their father. I pass over numerous entries in social services files over the ensuing decade, since many of them relate to C's sister. However from her first interview with the guardian and her solicitor on 10 January 2001 we know that C dropped out of school in 1997 or 1998 and that from 1997 she has been using both heroin and crack cocaine. It seems that she was a registered heroin addict from about 1999. On 23 June 1999 C's father reported that she was missing from home. He said she was consorting with a 19 year old boy. He added that he was not prepared to have her home. On 10 August 1999 she attended the accident and emergency department at the local hospital and was found to be four or five months pregnant. In due course on 2 March 2000 C gave birth to a son, R. (On 19 May 2000 the local authority issued an application for a care order in respect of R. Those proceedings are continuing and C is, of course, a party to the proceedings. Within those proceedings she is represented by her solicitor Ms Pattni.) In the interim it seems that C had returned to her parents since on 2 June 2000 her father reported that she was missing again, that her whereabouts were unknown and that he wanted her accommodated since he could no longer cope. On 12 July C was accommodated with R at a mother and baby unit. Whilst at the unit C frequently absented herself for hours at a time raising suspicions that she was involving herself in drug abuse funded by prostitution. On 6 August C abandoned R at the unit, absconding with another resident. R was placed with foster parents pending an assessment of C's sister as a potential carer. On 8 August C returned to the unit to collect her belongings but created such a disturbance that the police were called and she was arrested. On 12 December C called the police to an address where she alleged that she was being threatened by a man with a knife. On arrival the police were sufficiently concerned by the situation to take C to the station and to arrange for her accommodation by social services. In explaining her plight C said that her habit was to inject heroin daily and also attempt to get a daily fix of crack cocaine. This was financed by prostitution. She had agreed with a man for sex in return for crack cocaine however he did not produce the drug and had then pulled a knife on her.
2. This intervention enabled Andrea Johnson to collect C from the neighbouring social services department and to return her home. However she stated that she had no intention of staying with her parents and refused Andrea Johnson's offer of accommodation. Three days later C informed her mother that she was covered in bruises having been thrown about by two black men. She said that her arm was very swollen as a result of injecting with a dirty needle. At a strategy meeting on 20 December Dr Light, a consultant paediatrician who had had considerable past experience of C, warned that if something were not done to protect her then social services might be dealing with her death.
3. After a second strategy meeting on 2 January the local authority issued an application for a care order on 5 January. The grounds were set out in the accompanying form C13 in the following terms:

"The Department has had concerns about C for some considerable time. She is a young mother whose child is currently placed with his maternal aunt and uncle. Attempts have been made to engage C in respect of assessment work concerning R and this has included placement in a mother and baby unit which was of short duration. C's current lifestyle is chaotic and unsatisfactory. It is known that she is using drugs and that her general health is suffering as a result of this. It is suspected that C is involved, possibly, in prostitution but does associate with known drug addicts. Her current whereabouts are unknown but C has previously indicated to 'B' social services department that she is scared for her own safety and requires help.

C is clearly beyond the control of her parents and the department would wish to acquire parental responsibility for C to plan effectively for her safety and general welfare. It is anticipated that the department can engage with C with a view to a placement in a unit that will address her current difficulties in respect of drug abuse."

4. The ground for the application was that C was beyond parental control. On the same day Mrs Poole was appointed C's guardian ad litem by order of the justices. The court's notice to parties on form C6, presumably issued on the same day, gave notice that the application would be listed for hearing in the Family Proceedings Court at 10.00am on 11 January. At that stage, although the local authority clearly judged the situation to be serious they did not regard it as an emergency. On the final page of the C1 under the heading 'Plans for the Child' they wrote:

"It is anticipated that C will be placed in a unit that will address her specific needs. The court is asked to make an interim care order in respect of C."

5. However on 5 January they did not make application for an emergency protection order, or indeed an interim care order. It is clear to me that the case turned into the area of crisis on 7 January when C presented herself at Parklands Hospital at noon complaining of extreme abdominal pains. There were concerns as to her conscious state, as she was not alert but could be aroused. After sleeping through the afternoon C discharged herself against medical advice. In the early hours of 8 January she arrived at her parents' house in possession of cocaine soaked in ammonia. Her father called in social services who arranged for her to be collected by an escort service and admitted to Watling House secure unit. Under the provisions of section 25(2)(a)(i) of the Children Act 1989 and subsequent regulations the local authority could not accommodate C in secure accommodation for more than 72 hours without a court order. The proceedings already issued were duly served on either 8 or 9 January but they clearly required reinforcement to meet the emergency that had arisen. Accordingly on 9 January the local authority issued a further application on form C1 seeking a secure accommodation order under section 25. On the final page of the application under the heading 'Reasons for applying and plans for the child' the local authority referred over to the accompanying form C20. On that court form there are three boxes to enable the applicant to state the grounds for the application. The first box is apt for an application founded on section 25(a)(i) of the Children Act 1989 and the second box is apt for an application founded on section 25(1)(b). It is therefore convenient at this point to set out so much of section 25(1) as is relevant to the present appeal:

"(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept in accommodation provided for the purpose of restricting liberty ('secure accommodation') unless it appears -

(a) that -

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds, he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons."

Only the first box on the C20 was ticked.

6. In the next section of the form, reasons for the application and length of order sought, appears the statement of the local authority's case:

"C is the mother of a young baby who is currently the subject of care proceedings. C's current lifestyle places her at risk of extreme significant harm. It is known and C has admitted, that she is using drugs and injecting the same. C has confirmed that she has in the past had sex with adult males in exchange for drugs. Recently C has not been living at her home address but has absconded to the Birmingham area where police and social services are concerned about her involvement in a known prostitution ring that operates around local children's units. It is known that C has been threatened with violence recently and has been scared for her own personal safety. Generally however she seems unable to recognise the risks to her of her lifestyle. C's parents have been unable to control her behaviour and C frequently absconds from the family home. At such times her specific whereabouts are unknown. C returned to her family home on 8 January clearly under the influence of drugs. She was placed in Watling House secure unit. It is anticipated that she will remain so placed until it is possible to place her in an open rehabilitation unit."

My only comment on the form C20 is that, on the facts stated, it would obviously have been open to the local authority to tick the second box as well as the first thus founding their application on section 25(1)(b) in the alternative.

7. On the same day the local authority signed and dated the care plan to be placed before the court on 11 January on the hearing of the applications for an interim care order and a secure accommodation order. The care plan stresses the chaos and dangers of C's adolescent life as well as the range of services, educational, medical and therapeutic, available to her at Watling House. It emphasises that C's parents fully supported the plan and that C would be able to see her parents and her sister. The documents issued and prepared on 9 January were duly served on C's parents and on the guardian ad litem's solicitor, Mrs Phillipson, on 10 January, although the formal order appointing Mrs Poole guardian ad litem in the further application was not drawn by the court until 11 January. However on 10th, after service, both Mrs Phillipson and Mrs Poole visited C in Watling House and had discussions with the manager and with C. A full and careful attendance note was taken by Mrs Phillipson. During the course of their discussion C freely admitted her dependence on heroin and crack cocaine. She explained that her illness on 7 January resulted from using contaminated drugs supplied by her usual suppliers, a Yardie gang, who were punishing her for having approached an alternative supplier. C was not able, understandably, to admit how she financed her dependence although she was able to do so about a month later in discussion with her key worker at Watling House. Although Mrs Phillipson and Mrs Poole tried to persuade C of the need to stay where she was, at least for a week to enable plans to be made, she refused. At that point it was obvious to Mrs Phillipson that there was a clear conflict between C's instructions and the instructions of Mrs Poole. C had already said that Ms Pattni was acting for her in the care proceedings concerning R and Mrs Phillipson anticipated that C might separately instruct Ms Pattni.
8. Such a situation is catered for by Rule 11(3) of the Family Proceedings Courts (Children Act 1989) Rules 1991 which states:

"(3) Where it appears to the guardian ad litem that the child -

(a) is instructing his solicitor direct, or

(b) intends to, and is capable of, conducting the proceedings on his own behalf, he shall so inform the court through the justices' clerk and thereafter -

(i) shall perform all his duties set out in this rule, other than duties under paragraph (2)(a) and such other duties as the justices' clerk or the court may direct,

(ii) shall take such part in the proceedings as the justices' clerk or the court may direct, and

(iii) may, with leave of the justices' clerk or the court, have legal representation in his conduct of those duties."

9. Then Rule 12 of the same rules provides:

"12(1) A solicitor appointed under section 41(3) or in accordance with Rule 11(2)(a) shall represent the child -

(a) in accordance with instructions received from the guardian ad litem (unless the solicitor considers, having taken into account the views of the guardian ad litem and any direction of the court under Rule 11(3), that the child wishes to give instructions which conflict with those of the guardian ad litem and that he is able, having regard to his understanding, to give such instructions on his own behalf in which case he shall conduct the proceedings in accordance with instructions received from the child), or ....

(2) A solicitor appointed under section 41(3) or in accordance with Rule 11(2)(a) shall serve and accept service of documents on behalf of the child in accordance with Rule 8(3)(a) and (4)(a) and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any document so served.

(3) Where the child wishes an appointment of a solicitor under section 41(3) or in accordance with Rule 11(2)(a) to be terminated, he may apply to the court for an order terminating the appointment; and the solicitor and the guardian ad litem shall be given an opportunity to make representation."

10. On 11 January C was brought to the Family Proceedings Court from the secure unit at about 9.30am. There, presumably by prior arrangement, she met Ms Pattni. There also assembled the local authority and the guardian, both represented, and C's parents, who were, of course, parties to the proceedings. Ms Pattni no doubt felt ill-prepared in that she, of course, had not been served with the application of 9 January. That led to a preliminary application to the bench to dispense with the service requirements of the rules. We have a note of that application. Within the note there is this passage:

"We served solicitor for guardian, social worker, parents. Administrative hiccup re service to Ms Pattni. She now realised secure accommodation application. Genuine mistake by council. Rule 4.8 1991 Rules may make order that service rules do not apply"

11. It is convenient at this point to set out the relevant provisions of the Family Proceedings Courts (Children Act 1989) Rules 1991 that apply to service. Rule 4(1):

"Subject to paragraph (4), an applicant shall -

(b) serve a copy of the application together with form C6 and such (if any) of forms C7 and C10A as are given to him by the justices' clerk under paragraph (2)(b), on each respondent such minimum number of days prior to the date fixed under paragraph (2)(a) as is specified in relation to that application in column (ii) of Schedule 2 to these rules."

12. Schedule 2 sets out the minimum number of days prior to hearing or directions appointment for service under Rule 4(1)(b) and, in respect of an application under section 25, specifies one day as the minimum.
13. Rule 8(8) provides:

"In any relevant proceedings where these rules require a document to be served, the court or the justices' clerk may, without prejudice to any power under Rule 14, direct that -

(a) the requirement shall not apply;

(b) the time specified by the rules for complying with the requirement shall be abridged to such extent as may be specified in the direction;"

14. The application was supported by the guardian ad litem but opposed by Ms Pattni. The application was granted, again quoting from the note, 'because of all representations made at court and the real need for secure accommodation application to be dealt with today'.
15. The justices then put the case back until 2.30pm to enable Ms Pattni to take instructions. At some stage during the morning the local authority served their evidence in the form of the 14 page statement of Andrea Johnson, signed and dated that day. It ended:

"It is my recommendation that an interim care order and a secure order be granted. That anything other would not fully protect C. Any (other) would place her at further risk of significant harm."

16. When the applications were heard in the afternoon evidence was given by Andrea Johnson, C and her parents. We have a note of the evidence. It is clear from the note that Andrea Johnson's evidence in chief was briefer than her cross examination by Ms Pattni. The note of the evidence of C's parents, when cross examined by Ms Pattni shows that her father supported the application on the grounds of absconding. Her father put it:

"She's done it time and time again. We're concerned and had bogus addresses for her - we've never known where she's been."

C's mother was in favour of giving her one last chance, 'But if she goes then it should be the secure unit rather than foster care'. C in her evidence denied that she had ever absconded. She admitted drug problems but denied prostitution. We have the justices' findings of fact. They include:

"3. C was placed at M Centre 12 July 2000. She absconded from there on 6 August 2000 and returned on 8 August 2000.

5. Since then she is apparently unwilling to remain at provided accommodation and her whereabouts have been unknown."

17. The justices' reasons consist of their observations under the six heads of the welfare check list. As to her needs they observed, 'emotional and physical dangers of the lifestyle she is leading'. Under a later paragraph they noted, 'C is a drug addict and it is strongly suspected that she is involved in child prostitution'. As to harm they noted, 'physical and mental harm from drug abuse and possible sexual abuse'. On those foundations rested an interim care order stated to run until 22 February and a secure accommodation order to run until 2.00pm on 22 February. The secure accommodation order is expressly said to be made on the ground of absconding. The alternative ground, injury to herself or other persons, was struck out.
18. On 23 January C appealed both orders. She sought, 'an order that she be made the subject of an interim supervision order while she lives with her mother and/or while she is treated for her difficulties with drugs at the drugs rehabilitation centre'. The grounds of appeal are stated thus:

"1. The justices erred in attaching insufficient weight to the evidence of the appellant that she would live with her mother without causing any difficulties and that she wanted 'one final chance'

2. The appellant suffers with difficulties with class A drugs and needed treatment at a drug rehabilitation centre. The justices erred by attaching insufficient weight to that evidence but instead came to the view that by placing the appellant in secure accommodation the appellant's problems with drugs would go away.

3. The appellant had been provided with insufficient notice of the hearing which took place on 11 January 2001. The justices erred by abridging time for service pursuant to Rule 4.8(8) FPR 1991.

4. By abridging time for service the justices erred by depriving the appellant of the a right to a fair trial in that neither she nor her solicitors were able to properly prepare her case and they were not able to properly present her case. The appellant will rely on Article 6 of the Convention.

5. By abridging time for service, the justices deprived the appellant of the right to family life by accommodating her away from her family and away from her baby R born 2 March 2000 who had been placed in foster care. The appellant will rely on Article 8 of the Convention.

6. The justices erred by failing to take into account the draconian nature of their order and the fact that the appellant's liberty was to be restricted by virtue of their order. The appellant will rely on Article 5 of the Convention."

19. The appeal came before Johnson J on 31 January. It is clear from his judgment that two points were pressed: first that the decisions taken by the justices on 11 January amounted to a denial of the right of fair trial both at common law and under the Convention, second that the evidence did not justify, alternatively that the justices had not made a clear finding of, a history of absconding. It was submitted that the only incident of absconding proved was from the mother and baby unit on 6 August and that that could not constitute a history. Mr Justice Johnson rejected both submissions. On the first point he said:

"But, focusing for the moment on the fairness of the situation facing C and her solicitor, were they dealt with fairly? I think that they were. Or, rather, that it is not demonstrated on this appeal that they were dealt with in a way which was outside a reasonable exercise of the justices discretion."

20. In rejecting the second submission he said:

"Undoubtedly, the justices were fully entitled, on the basis of the evidence they heard, to hold, as by inference they clearly did, that C had a history of absconding; was likely to abscond from any form of accommodation that was not secure, and if she did so would be likely to suffer significant harm"

He therefore dismissed her appeal.

21. On 14 February this court received notice of appeal against his order with substantial grounds settled by Miss Pearce who appeared in the court below. In the week commencing 5 March the court was informed that an application for the extension of the secure accommodation order was listed for hearing on 15 March. Accordingly arrangements were made for an expedited hearing on 14 March.
22. In support of her appeal Miss Pearce argued that the justices had wrongly exercised their discretion to dispense with service, that there had been fundamental unfairness in the precipitate trial of an application for such a draconian order, that there had been a breach of C's Article 6 rights under the European Convention on Human Rights, that C was not a child who was being looked after by a local authority within the terms of section 25(1), and finally that there was no evidence to support a finding of a history of absconding. I will take those submissions in turn.
23. In my opinion on 11 January Mrs Rowlands for the local authority was not under any obligation to apply to the bench for an order dispensing with service requirements. Those requirements in Schedule 2 to the Family Proceedings Courts (Children Act 1989) Rules 1991 provide in respect of an application brought under section 25 that the minimum number of days prior to hearing for service under Rule 4(1)(b) is one day and the application must be served on those persons upon whom all applications must be served unless the subject of special provision. The respondents upon whom all applications must be served are every person whom the applicant believes to have parental responsibility and, in the case of specified proceedings, the child. In my interpretation the local authority complied with their obligation under these rules by serving the application of 9 January on C's parents and on the solicitors appointed by the guardian on 10 January. We do not know at what time service was effected on 10th, but in view of the fact that the applications were not heard until 2.30pm on 11th I would hold that the requirement for a minimum of one day's service was met. Lichfield Reynolds were the duly appointed solicitors for C under the service provisions of Rule 10(2). Whilst C's right to a solicitor of her choice is recognised by the statutory code her first opportunity to replace Mrs Phillipson with Ms Pattni arose at the hearing on 11 January. It follows that I am of the opinion that Mrs Rowlands for the local authority made an unnecessary concession when she accepted that there had been a hiccup re service to Ms Pattni and a genuine mistake by the local authority. Even if I did not hold that view, I, like Johnson J, would hold that the order dispensing with service was plainly within the discretion of the justices. After all C herself was properly informed and consulted on the application for a secure accommodation order at the meeting with Mrs Poole and Mrs Phillipson on the previous day.
24. On the second submission that the general conduct of proceedings on 11 January constituted a denial of justice to C I again share the view of Johnson J that the submission fails. Like Johnson J I recognise the scrupulous care with which an appellate court should review a hearing that gave a frightened and vulnerable adolescent only a few hours with her solicitor before embarking on a hearing that resulted in her loss of liberty for a period of six weeks. But that time-scale must be measured against the realities of the case. The evidence of Andrea Johnson was largely a matter of record and in many important respects was either not contested or realistically incapable of contest by C. Even had the opportunity for consultation been unlimited it was unlikely to have been more extensive nor were there any other steps, such as the gathering of evidence, that could have been taken had an extensive adjournment been granted. The reality was that everybody foregathered on 11 January, the local authority, the parents, the guardian ad litem and, undoubtedly, the justices, focused on C's vulnerability and the imperative need to protect her from herself.
25. In our court Mrs Pearce and her junior Mr De Mello presented an additional skeleton argument dated 12 March which dealt exclusively with ECHR points. At the hearing Miss Pearce left Mr De Mello to argue that skeleton. His principal submission was that an application for a secure provision order was to be classified, for the purposes of the Convention as a criminal charge within the meaning of sub-sections (2) and (3) of Article 6. In support of that submission he relied upon the decision in the case of B v Avon and Somerset Constabulary [2001] 1 WLR 340 and paragraphs 32 and 33 of the decision of the European Court of Human Rights in Garyfallou Aebe v Greece 28 EHRR 343 at 356. With respect to Mr De Mello's submission I do not consider that those citations support the conclusion for which he argues. Although the point did not arise for decision in the case of Re K (Child) (Secure Accommodation Order: Right to Liberty) [2001] 1 FCR 249, I stressed in my judgment at page 265 the protective quality of the jurisdiction, citing from the judgment of Ewbank J in Re W [1994] 3 FCR 248. I therefore reject the submission that C's rights under Article 6 extend beyond the general right enshrined in sub-section (1). Nor do I think that my conclusion is of much practical significance. Sub-section (3) guarantees to everyone charged with a criminal offence five specific minimum rights. I am in no doubt that any child facing an application for a secure accommodation order, however it may be categorised, should be afforded those five specific minimum rights. In the exceptional circumstances of this case, where in the previous month the consultant paediatrician warned all concerned in a written report, 'If something is not done to protect C she is at extreme risk and we may be dealing with her death' I am satisfied that the proceedings on 11 January did not violate her right to a fair trial under Article 6.
26. The submission that on 11 January C was not 'a child who is being looked after by a local authority' and therefore not within the secure accommodation regime is in my submission hopeless. A child who is looked after by a local authority is defined by section 22(1) as:

".... A child who is -

(a) in their care; or

(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their social services committee under the Local Authority Social Services Act 1970."

27. In response to her parents' request and for her protection the local authority accommodated C on and after 8 January. Furthermore she was the subject of an interim care order which was made simultaneously with the secure accommodation order.
28. Finally I come to the submission that was not open to the justices to find, on the evidence, the history of absconding. The only ground for this submission lies in the relative paucity of the justices' findings and reasons. But in the performance of this exercise justices are not to be judged by the standards that are expected of the professional judiciary. The evidence of Andrea Johnson established that C had vanished on one occasion in June 1999, on another occasion in June 2000, on 6 August 2000 and possibly on 13 December 2000. The evidence of her parents suggested even more numerous disappearances. Mr Arnot has furnished us with the definition of abscond in the Shorter Oxford English Dictionary, 'To hide oneself; to go away hurriedly and secretly'. This was precisely what C was doing whether from her family home or from the mother and baby unit. The only contrary evidence came from C which the justices plainly rejected. It is manifest that they accepted the evidence of Andrea Johnson and C's parents. I am satisfied that this is a plain finding on the evidence.
29. Rejecting as I do all the submissions advanced by Miss Pearce and Mr De Mello it is hardly necessary to express a view on the submissions advanced by Mr Arnot for the local authority and by Mr Hanson for the guardian ad litem. I need only say that had I accepted Miss Pearce's submission that there was no evidence of a history of absconding I would not have upheld the order on the alternative submission advanced by Mr Arnot that it was well founded on section 25(1)(b). Although I accept that in determining an application under section 25 the justices exercise a quasi-inquisitorial jurisdiction and are not confined to the grounds advanced by the applicant, in my opinion it would not be legitimate to uphold the order on the alternative ground when the application itself did not invoke that alternative and when the justices themselves expressly founded the order only on sub-section 25(1)(a).
30. As to Mr Hanson's submissions, whilst I understand that there is room for almost any submission when routes of appeal in family proceedings are in a state of suspended evolution, to uphold his submission that this an impermissible second tier appeal would be wrong when the liberty of a child is at stake.
31. In conclusion I would like to make a few general observations. Looking to the reality a secure accommodation order was the only management that was realistically open by 11 January. The order made on that day was spent by 22 February and the application for its renewal was more than once adjourned. In the interim the local authority had sensibly relied upon section 25(1)(b) in the alternative. Even if this court had found sufficient procedural or other irregularity to strike down the order made on 11 January we would inevitably have made a fresh secure accommodation order in the exercise of our discretion, at least to protect C until a further listing in the Family Proceedings Court. In that sense both the appeal to the Family Division and the further appeal to this court have had an academic flavour. That said there is clearly a need for great care by local authorities and by justices in ensuring compliance with the statute, the regulations, and standards of justice that match the gravity of the relief sought as well as careful regard to rights arising under the European Convention of Human Rights. Like Johnson J I too would not criticise the local authority. Before him, as before the justices, the local authority conceded oversight beyond what I believe to have been necessary. But as Johnson J stressed:

"Everyone with experience of the child care system, knows that the system is, and the local authorities acting within it are, heavily overloaded and mistakes of this kind can happen."

However with the advantage of hindsight it would probably have been better had the justices directed their attention to section 25(5) which reads:

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

In so saying I am assuming that there would have been a practical opportunity to put the case back for a few days and to direct its return either in that Family Proceedings Court or in an adjoining Family Proceedings Court without prejudicing other cases waiting their turn.

32. Finally as my lord, Brooke LJ, pointed out during the course of argument, it behoves those who complain of procedural irregularity in the court of trial to meet the expectations of this court and to achieve the minimum standards that it sets for appellants. A time estimate of one hour was completely unrealistic. The core bundle contains much unnecessary duplication of the skeleton argument. No chronology was submitted in a case that cried out for a chronology. No bundle of the relevant statutory material was provided to the court and the authorities arrived in two separate streams without index or pagination on the morning of the hearing. However gratitude is due to Mr Arnot and Mr Hanson who both submitted skeletons and supplemental skeletons and, in Mr Arnot's case, sought to remedy some of the deficiencies in the appellant's provision of authority by providing an additional bundle. Finally, whilst grateful to Mr De Mello for his helpful submissions, it is important that those who specialise in family justice should recognise their responsibility to advance submissions on European Convention rights without a second junior. This is particularly necessary in publicly funded litigation. At a time when family law specialists are facing the threat of imminent and swingeing reductions in legal aid rates across the board it is particularly important to eliminate anything that could be labelled extravagance. I would dismiss this appeal.

LORD JUSTICE BROOKE:

33. I agree that the proceedings at the Tamworth Family Proceedings Court on 11th January 2001 are not properly to be characterised as proceedings at which C was charged with a criminal offence within the meaning of Article 6(3) of the European Convention on Human Rights ("ECHR"). It is well known that the expression "criminal" has been given an autonomous meaning in this context by the European Court of Human Rights. In any particular case where this question is in issue, the court must have regard not only to the classification of the proceedings as a matter of domestic law, but also to the nature of the offence and the severity of the penalty that may be imposed (B v Chief Constable of Avon and Somerset Constabulary [2001] 1 WLR 340 per Lord Bingham CJ at p 353 (para 28)). Although C faced the loss of her liberty if the court made the order sought - so that issues under ECHR Article 5 were theoretically in play (see Re K (Child) (Secure Accommodation Order: Right to Liberty) [2001] 1 FCR 249) - these proceedings had nothing to do with criminal charges or criminal offences, however defined, or with penalties for violation of the law. As Dame Elizabeth Butler-Sloss P said in Re K at p 259 (para 29), this is a benign jurisdiction to protect the child, as well as others, even though it is also a restrictive jurisdiction.
34. I also agree that any child facing an application for a secure accommodation order, however it is characterised, should be afforded, as a matter of procedural fairness under the English common law, the five specific minimum rights described in Article 6(3), suitably adapted so as to substitute the word "application" for the word "accusation" in sub-paragraph (a).
35. In the context of the present case the issues that arise are: (i) Did C have adequate facilities for the preparation of her defence? (ii) Was she able to have the witnesses against her examined and to obtain the attendance and examination of witnesses on her behalf under the same conditions as witnesses against her?
36. The examination of the facts shows that she was acquainted with the nature of the application by her guardian ad litem at the secure unit on 10th January 2001. It transpired at that meeting that there was a clear conflict between her attitude to the application and that adopted by the guardian ad litem, so that the procedure contemplated by Rules 11(3) and 12 of the Family Proceedings Court (Children Act 1989) Rules 1989 was likely to be invoked.
37. We were told by counsel that although C's solicitor arrived at court at 9.30am, she did not herself arrive from the secure unit until 10.30am. At 11.00am the parties went into court for the hearing of Staffordshire's application for permission to dispense with service of the section 25 application. We were told that this hearing lasted until about 12 noon, and that the hearing of the substantive application began at 2.30pm. There was no conference room available, so that C was unable to discuss her case with her solicitor in private. Instead, her solicitor was obliged to receive her instructions sitting with C in the public area outside the courtroom. Although none of these matters are to be found in any formal witness statement, they were stated by C's counsel in her skeleton arguments and were not disputed.
38. I have no doubt at all that the proper order the justices should have made that afternoon, if anyone had suggested it, would have been an interim order pursuant to Section 25(5) of the Children Act 1989 (for which see paragraph 31 of Thorpe LJ's judgment). The adoption of this course would have satisfied the need to ensure that C remained in secure accommodation for the time being, as well as the need to ensure that she had adequate time and facilities for the preparation of her defence before there could be any question of a court taking away her liberty for as long a period as six weeks. Although she was still a child in the eyes of the law, she was a mature 15-year old, well capable of distinguishing between fair and unfair treatment, and in my judgment she would have been entitled to an adjournment for a few days, backed by an interim order that she remained where she was, if such an application had been made.
39. Unhappily, it does not appear that this course suggested itself to anyone in court that afternoon. Perhaps C's solicitor took the view that after she had been unsuccessful in postponing the hearing of the application in the morning, it would have been futile to make a further application for an adjournment in the afternoon, even if she had felt that she had not in the event had proper time and proper facilities to prepare C's defence, or to consider with C whether anything worthwhile would be gained by obtaining witnesses to support that defence.
40. In these circumstances I am not prepared to dissent from an order dismissing this appeal. Both Thorpe LJ and Johnson J, who have far more experience of the Children Act jurisdiction than I have, are of the view that this was not a case in which the gathering of evidence for C would have had any point (see Johnson J at p 4 of the transcript and Thorpe LJ at para 24), and if C's solicitor, after taking her instructions for two and a half hours, made no application for an adjournment for this purpose, I am not prepared to hold that the justices should have directed an adjournment of their own motion. The note of the morning hearing shows merely that C's solicitor was seeking "a fair chance for C to be represented and to give representations to the court". I am not willing to hold that the justices were wrong at that stage in declining to adjourn the matter, while at the same time giving C and her advocate time outside court to prepare what they wished to say in the afternoon.
41. Even though we are dismissing this appeal, it has given this court an opportunity to stress how important it is that fair procedures should be followed before a secure accommodation order is made. Even if the availability of such orders is a manifestation of the wish of a benevolent state to protect its children from harm, they will not be seen in this light by young people of C's age and maturity. It is most important that they should feel they have been treated fairly, and that they have had a fair opportunity of putting their side of things to the court before a substantive order is made. It may well be that those who are responsible for the relevant procedural rules and for the modernisation of our family courts may wish to study these judgments. They would do well, in my judgment, to consider what further steps might be taken, in the interests of fairness, to ensure that good notice is given of hearings of this kind, whenever practicable, and that there are facilities provided at family proceedings courts at which advocates can discuss the case with their clients on an occasion like this in conditions of privacy and not be obliged to do their best to take instructions in the public parts of the court building.
42. I agree with Thorpe LJ, for the reasons he gives, supplemented by what I have said in this judgment, that this appeal should be dismissed.

SIR MARTIN NOURSE:

43. I have had the advantage of reading in draft the judgment of Lord Justice Thorpe and, for the reasons he gives, I too would dismiss this appeal.
ORDER: Appeal dismissed; Subject to a detailed assessment.
(Order does not form part of approved Judgment)