England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ORDER OF
MR JUSTICE KEEHAN [2016] EWHC 1139 (Fam)

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2016

Macur LJ:

1. These are the court's reasons for the order made on 7^th July 2016 dismissing the appeal.
2. This is an appeal against the making of a secure accommodation order pursuant to s 25 of the Children Act 1989 in relation to W, aged 17years 8 months at the time of the application. It was argued on her behalf that the court has no jurisdiction to make such an order without her consent to being accommodated by the local authority and/or consent to being securely accommodated. In the alternative it was argued that the judge wrongly interpreted the term "absconded" and, in any event, was wrong to make a secure accommodation order for a term of three months, since the deprivation of her liberty was a disproportionate response to the unruly, but not unusual, behaviour of a rebellious teenager and there were other options, short of secure accommodation, which would adequately safeguard W's wellbeing.
3. The secure accommodation order was made on 14 April 2016 and ceased to have effect on 14 July 2016, unless extended on the intended application of the local authority until W's 18^th birthday on 7 August 2016. However, we were of the firm view that this appeal should not be regarded as 'academic' since the liberty of W was in issue, no matter how short the length of time remaining in which she can be subject to a secure accommodation order. Quite apart from this, we were told that there is an inconsistency in the approach of local authorities to s 25 applications in respect of 16 to 18-year old individuals by reason of differences in the interpretation of the provisions of s 20 of the 1989 Act, which issues have been argued in this appeal.
4. As we were unanimous in our view that the appeal should be dismissed we announced our decision at the conclusion of the hearing, considering that it was in the best interests of W to inform her, and those under a duty to accommodate her, of the same as soon as possible. The appeal was dismissed. These are the reasons why we decided to affirm the order of the lower court and hence dismiss the appeal which sought to set it aside.
5. As was the case in the court below, W was represented by Miss Judd QC and Mr Forbes. Mr Tyler QC together with Miss Thomas, appeared on behalf of the relevant local authority. The Children's Guardian was represented at first instance, but the attendance of her counsel in the appeal was excused since the Guardian supported the making of a secure accommodation order in the court below, and adopted the local authority's arguments in response to the appeal.
6. There was no significant dispute of fact. Miss Judd QC, accepted that W is "a child in need" and that Keehan J had sufficient evidence before him in order to make a finding that W was the victim of child sex exploitation. In summary, W has been beyond her mother's control, probably since the age of 9, but certainly from the age of 14. However, despite the significant risks to her emotional welfare and physical safety, she remained living in the family home until the age of 15 when she was "accommodated" by the local authority; it follows that this would be pursuant to s 20 (1) of the Children Act 1989, which provides:

"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of

…

(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care".

7. Since that time, W became a "looked after" child and has been placed at several residential care units to no good effect. Her behaviour has been consistently disruptive, abusive and sexually promiscuous. She has been drunk and under the influence of illegal drugs and has dismissed any attempt to address or ameliorate the associated risks of her disinhibited behaviour. She has had no regard for the rules of any institution where she has resided and has constantly absented herself at all hours to pursue her own ends, often involving unknown men in unknown locations, after which she has sometimes been observed to be in possession of significant amounts of money. In these circumstances it is almost impossible to conceive that the local children's services authority would not adjudge her to be at risk of continuing significant harm.
8. When W became 16 we consider that these facts would have mandated the relevant local authority to provide accommodation for W pursuant to s 20(3) since:

"(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of 16 and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation". (Our underlining.)

9. However, Miss Judd QC did not concede that W's circumstances, as indicated in paragraphs 5 and 6 above, necessarily identified the basis upon which the children's services authority was providing her with "accommodation" since, she submitted, the local authority could also have accommodated W in the same unit, pursuant to s 20(5) of the Act which provides:

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

10. This distinction is significant. Regulation 5(2) of the Children (Secure Accommodation) Regulations 1991/150 excludes application being made for a secure accommodation order in respect of children accommodated pursuant to s 20(5) of the Act.
11. Miss Judd QC submitted that W can only be "accommodated" by the local authority if she consents to the same, and by inference that she therefore determines the basis upon which she became, or continues to be, "accommodated". She relied upon s 20(6), which requires that a local authority

"Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare –

(a) ascertain the child's wishes and feelings regarding the provision of accommodation; and

(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain."

and on s 20(11), which enables a child of sixteen to veto their carer's objection to them being provided with accommodation by the local authority.

12. Mr Tyler QC pointed out that neither provision requires the child to give consent prior to being "accommodated". He drew considerable support from the leading speech of Baroness Hale in R (on the application of M) v London Borough of Hammersmith and Fulham [2008] UKH 14 at [17], in which she states that the child's voice is:

"…not a decisive one. Before providing accommodation, the local authority must, so far as practicable and consistent with her welfare, ascertain the child's wishes 'regarding the provision of accommodation' and give due consideration to them having regard to her age and understanding: see s (20(6) of the 1989 Act. This must relate to the initial decision to accommodate, given that there is also an obligation to ascertain and take account of the wishes of both parent and child whom they are already looking after or proposing to look after: see s 22(4) and (5) of the 1989 Act".

13. It does not seem to me that Baroness Hale's later remarks in [43], namely:

"It seems to me that there may well be cases in which there is a choice between ss 17 and 20, where the wishes of the child, at least of an older child who is fully informed of the consequences of the choices before her, may determine the matter. It is most unlikely that s 20 was intended to operate compulsorily against a child who is competent to decide for herself";

or in the subsequent case of R (on the application of G) v Southwark [2009] UKHL 26 at [6], where she said:

"…it is unlikely that parliament intended that local authorities should be able to oblige a competent 16 or 17-year-old to accept a service they did not want. This is supported by s 20(11) which provides that a child who has reached 16 may agree to be accommodated even if his parent objects or wishes to remove him. It is a service, not a coercive intervention.",

undermine that point.

14. Mr Tyler QC submitted that these views must be seen as obiter dicta, as Baroness Hale made clear in indicating that the issue had not arisen in the instant cases before her. The two young people concerned were determined factually to be "children in need" and were actively seeking to be accommodated so as to access children's services rather than only to be housed on the basis of their homelessness. There was no suggestion that either was likely to be subject to coercive intervention in terms of a s 25 application. However, it seems to me an unnecessarily defensive stance. Baroness Hale did not define what she meant by 'competent' in this particular context, but I consider that she used the term to mean a requisite degree of emotional maturity and intelligence to reach a reasoned decision in the context of the factual circumstances of the individual case and in light of the nature of services that may be deployed in discharge of the duty imposed upon the local authority by the 1989 Act; that is, to possess the attributes of a 'Gillick competent' child. Chronological age will not determine competence.
15. The document recording her mother's consent to W's accommodation does not specify upon what basis the local authority assumed her 'voluntary care'. That W's actual circumstances at the time of the application under review could fit within the description of accommodation provided pursuant to s 20(5) of the 1989 Act does not determine the point. The judge's assessment of the facts of the case led him to the sure conclusion that the local authority was correct in asserting that W was actually accommodated pursuant to s 20(3). This was not a case where accommodation was provided merely to safeguard or promote W's welfare; her welfare would be seriously prejudiced if she was not provided with accommodation. He cannot be criticised in this regard. Accommodation provided in accordance with s 20(3), provides a gateway to a s 25 application.
16. Section 25 of the 1989 Act provides for the court to sanction the use of accommodation to restrict the liberty of a child being "looked after" by a local authority, not otherwise excluded by regulations made pursuant to s 25(7), if it appears

"(1) (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."

Parental consent is implicitly required, for any person with parental responsibility can remove the child from accommodation provided by the local authority unless that child is over 16 and objects to being removed: see ss 20(8), 20(11) and 25(9) of the 1989 Act. W's mother supported the local authority's application, her only expressed regret being the short term nature of the proposed restriction of her daughter's liberty.

17. It is unrealistic to suggest that a child who otherwise fulfilled the statutory criteria in s 25(a)(i) would be prepared to consent to secure accommodation, or in the case of paragraph (b) would do so, save in a lucid moment of self-awareness which may question the necessity for the restriction of liberty under this provision rather than a disposal under the relevant mental health legislation. It is undoubtedly a 'coercive intervention' which, by definition, excludes any suggestion of necessary consent. Unsurprisingly, W was adamantly opposed to the application. As indicated above, she was legally represented in the proceedings in accordance with s 25(6).
18. Miss Judd QC sought to compare this case with the circumstances of 16 -18 year olds who are beyond their parents' control or benign influence but have not reached the point at which they would otherwise become "accommodated" by the local authority, whether by want of parental consent or being out of local authority sight. Since a "looked after child" is not necessarily a child who is, or has previously been, subject to a care order made by the court pursuant to s 31 of the Act after due process by law, and if aged 17 or over would not be liable to be made, or after 18, continue to be, the subject of a care order, it is understandable that she highlighted the inequity that arises for a restricted class of young people, not otherwise sentenced to detention after conviction for a criminal offence or in consequence of mental health issues, to be subject to the prospect of effective incarceration. She used this disparity to dispute the valid jurisdiction of a local authority to seek to do what those with parental responsibility cannot legitimately do by "locking the 16 or 17-year-old in their bedroom."
19. This is an interesting ideological debate but cannot countermand the clear statutory authority granted to the local authority to restrict liberty, subject only to due process of law and the sanction of the court. Read in proper context, the object of s25 is protective and not punitive of the older "child in need" and clearly recognises that "a child, even on the verge of adulthood, is considered and treated by parliament as a vulnerable person…" (see R (G) above at [3]).
20. A due regard to the wishes and feelings of a competent child so far as consistent with his or her welfare may dissuade a local authority from applying for a secure accommodation order. As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence. That said, we are satisfied that the subject child's consent is not a pre-requisite of the making of a secure accommodation order.
21. Miss Judd QC's arguments in relation to the judge's definition of "absconding" arose in the fact-specific circumstances of this case and did not persuade us that it is necessary to attempt to define the term beyond its ordinary meaning. Munby J (as he then was) in Re G (Secure Accommodation Order) [2001] FLR 884 at 895 relied on the definition of 'abscond' as found in the Concise Oxford Dictionary. This accords with the usual application of the term to connote the element of 'escape' from an imposed regime. Mr Tyler QC's reliance on the wider definition in the Shorter Oxford English Dictionary was perhaps born of the need to support his argument that Keehan J's approach to the issue was correct. However, it seems to me to add an unnecessary gloss to a term which is able to be readily understood. Although trite to say, the facts will speak for themselves. As it is, we were satisfied, as we indicate below, that the judge wrongly categorised W's absences from the unit in which she had been placed since January 2016 as constituting part of a history of absconding.
22. In determining that W had absconded, Keehan J invoked the facts that W had 'disengaged' with the unit, returning not "just a few hours later but well into the following day". I do not consider that this meant that W was 'absconding' from the unit, in terms of escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed. However, the factual matrix of the case as determined by Keehan J quite clearly satisfied the criteria in s 25(1)(b). Placed in any accommodation other than that which could 'contain' her, she was in danger of serious harm.
23. Mr Tyler QC referred to his skeleton argument prepared for the proceedings below to support his assertion that the local authority relied upon the criteria in s 25(1)(a) and (b). We were satisfied that Keehan J's judgment mistakenly states the contrary. Miss Judd QC conceded that, subject to her other arguments, the criteria in s 25(1)(b) were met.
24. Mr Tyler QC acknowledged that an order for secure accommodation will engage Articles 5 and 8 ECHR and that, notwithstanding the mandatory wording of s 25(4), which requires that the court which determines that any such criteria are satisfied "shall make an order", any order must be necessary and proportionate to the circumstances. This is plainly right. Keehan J expressly recognised that the "order is one of the most draconian nature" and to being "entirely satisfied that all other options have been pursued", but did not expressly identify the factors he took into account in coming to that conclusion.
25. Miss Judd QC argued that the availability of other measures which would provide safeguards to W were not adequately weighed in the balance. She suggested a more liberal approach by the unit in terms of the curfew imposed by the rules to allow W occasional 'club nights' and the availability of injunctive relief to restrict the malign attentions of disreputable men. She referred to the lifestyle choices of teenagers who are not accommodated. She stressed that W will be independent in less than a month and that an enforced and continued curtailment of her freedom now might well result in a pent up frustration being given full vent on her liberation.
26. In reality there is no means of providing effective injunctive relief against unknown individuals. I would find force in the other arguments but for Mr Tyler QC's reminder that the court deals with the subject child before it. Parliament has provided for the local authority to make an application of this kind and to keep W, a 'looked after', albeit 17-year-old, child safe from significant harm in the circumstances pertinent to her and not by comparison to others.
27. Mr Tyler QC referred us to undisputed evidence which revealed W's sexual promiscuity in the form of posting a photograph of herself scantily clad and in provocative pose with an invite on social media to "come and get her", her association with the apparently undesirable characters who pay attention to her and her seemingly uncontrollable impulses and lack of inhibition. We accepted his submissions that the behaviour of W is beyond that of normal teenage rebellion. The harm to which she exposes herself exceeds experimental sexual activity and unsuitable partner choices, as indicated by the judge's finding that she is a victim of child sex exploitation. The making of the order was justified, necessary and proportionate.