Case No: NE15C00046
Quayside
Newcastle Upon Tyne
NE1 3LA
12th February 2015
B E F O R E:
Re R [Secure accommodation order: child on verge of leaving care]
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Judgment
1. This is an application made by Newcastle City Council for a secure accommodation order in respect of R, a girl born on 9th July 1997. Of direct relevance to this application is that exactly 21 weeks today R will achieve her majority: it will, of course, be her 18th birthday and I will revert to this.
2. Can I say this at the outset? I want to cause R, who is present and participated fully in this hearing including giving evidence, the minimum of embarrassment, but I am obliged to set out, at least in summary form, some of the background to this Application.
3. R is a young person who has had the most difficult childhood imaginable. She has been subject to a full Care Order since November 2011 but has, in fact, been subject to local authority intervention since 1998 when she was just 12 months old. Since that time (and I read from the statement of the Social Work Practitioner who is concerned with the specific police operation that I am going to come to) Children’s Services has had involvement with this family sporadically, due to transience, but consistently when they have lived in Newcastle. There have significant concerns about the care, wellbeing and safety of the children in all of the local authorities where the family has resided. At different times the children have been subject to Child Protection Plans which have had to be transferred between authorities when they moved.
4. The concerns are consistent and longstanding in respect of the care that R and her siblings have received. That in turn reflects the parenting that the children had, the concerns being around neglect, of basic care needs, safety, supervision, promotion of health and educational needs from being very young to the present day. Assessments over the years reveal children with no routines or boundaries in their home whilst growing up, a home in which there were also issues of domestic abuse.
5. In 2008 an Independent Reviewing Officer who was chairing a meeting described the case as the worst case of neglect that he had ever seen, a view shared by the social worker who wrote this report. The harm that has been done to R by that ineffective and neglectful parental care, is simply unquantifiable.
6. It follows that that background of wholly unacceptable care, plays a significant part in the risk taking behaviour and transience that R herself has also demonstrated. It is directly responsible for her vulnerability. It has given her a distorted understanding of what is acceptable in terms of life choices and lifestyles as well as affording her little or no insight in to what it is which will impact upon safety.
7. Now those difficulties are not the immediate cause of the application or the succession of secure orders that have been made since July 2011. They are however relevant to R’s prospects of living safely and independently because, regardless of the cause of the need for secure accommodation, she is a young person who, by virtue of her experience of being parented, is ill-equipped for independent living.
8. At the heart of this Application is the fact that R is a very significant victim of child sexual exploitation, having almost certainly been sexually abused within the family home as a young child. From July 2011 aged 14 she was identified as a child who was at risk of child sexual exploitation. Thereafter a pattern emerged of her absconding from Foster Care and from other non-secure placements and being found in the company of inappropriate, much older, Asian males. She had absconded time without number and been found far from her last known address. So for example within a week of being placed in Lincolnshire in April 2013 she absconded to London and met up with older males. In September of that year she went missing and was thought to be in Leeds. A male believed to be with her has recently been charged with 22 offences linked to child sexual exploitation, including a number of counts of penetrative sexual activity with a child.
9. Following her release from a secure placement in December 2013, she fell pregnant but was unable to identify the father due to reporting having engaged in sexual activity with three men on the evening when it is believed she fell pregnant. She has described going on ‘long drives’, including to London and Manchester with older Asian males. She is known to have absconded on being collected from her placement by Asian taxi drivers, with whom sexual activity has followed. Despite being denied internet access, somehow she has been found with Asian males, believed to have been facilitated via a dating website.
10. I was provided with quite chilling evidence from Detective Superintendent Barron, who heads up the major operations, Sanctuary and Shelter, in this city. Those operations have been attempting to break up the groups of males who exploit sexually children and vulnerable adults. He told me that R has been sexually exploited since the age of 13 and that she was “pretty much at the top of the list” of children known historically or currently to be exploited. Like the local authority, he assesses her as high risk of such exploitation and believes that if she is not in secure accommodation, very soon men who would hurt her in a violent and sexual way would find her and she would again be abused.
11. Now R is fortunate in having a longstanding social worker and team manager in Lindsay Winskill and Charles Shipley. I heard from the latter and do not doubt that he and Miss Winskill care deeply for C who is, as her Children’s Guardian Mrs Barbara Hewitt said, an appealing, attractive and in many ways compliant young person. It was drawn to my attention that she has in effect been as good as gold in secure accommodation and been granted the unique status of being permitted access to the kitchen in order to gain some work experience.
12. Those professionals however are faced with the dilemma that faces this Court. As long as she is in secure accommodation, and she has been at (withheld) in Northumberland for some months, she is safe and cannot be raped or worse, a view that Superintendent Barron impressed on me. However, as I have said, in just 21 weeks she will be 18. She will have to leave secure accommodation and will be as vulnerable as it is possible for her to be on doing so. In order to prepare her for that, it would be advantageous to prepare her for independent living, in a practical, controlled and safe, or as safe as it is possible to be, way.
13. Those professionals therefore devised a plan to move R to semi-independent living, in a facility [location withheld] where she could live in supported accommodation with some onsite supervision and support by way of a phased introduction to independence.
14. The advantage of starting the process before C is 18, is that she will remain the subject of the Care Order. S will continue to have the local authority as her statutory parent and it can therefore be managed within a legal structure with the resources that flow from that status available to the local authority including, if necessary, resort by the local authority to the Court to safeguard her. If she moves to [ ] before she is 18, I am told and accept that she will be able to remain there after she is 18 for an indefinite period. By contrast it is unlikely that she would be able to be placed and live there after her birthday.
15. The disadvantage of starting the process when she is 18, is that she will no longer be the subject of a Care Order. Although she will have access to the leaving care service, not only is that not as comprehensive as the help that could be available to her under a Care Order, it is entirely dependent upon her willingness to access it and engage with it. There is no legal framework around it.
16. For a person who has at times said, and she did directly to me yesterday, that she wants her majority to be free of social workers, there is a real risk that she will cut herself loose and thereby deny herself the support that frankly she needs, expose herself to the unhelpful influence of her parents and, even more seriously, to the attentions of undesirable Asian males.
17. The local authority advanced its plans and they were discussed with R extensively and she liked the plan. She was taken to the proposed property and liked that and agreed to go there as part of the exit strategy from secure accommodation. However, when it was taken to a professionals’ meeting on 18th December, attended by amongst others the service manager and Superintendent Barron, the decision was taken not to progress it because the service manager concluded that all the risks had not been mitigated and that the local authority was at risk of exposing itself to a breach of its duty to protect C as her statutory parent.
18. C was devastated and understandably blames those with whom she has direct contact, Mr Shipley and Miss Winskill.
[There was then an exchange between the Judge and R who was expressing concern about the absense of her father in court.]
19. The present Order made on 7th August expired in fact last week and the Court extended it to enable this hearing to take place. I heard in the course of yesterday from Superintendent Barron, from Mr Shipley and R and from R’s Guardian, Miss Hewitt. Her parents attended, they represented themselves. They declined to give evidence but they communicated and contributed their views to the witnesses and to me. The issue for the Court is in fact a very narrow but important one. It involves Article 8 rights, the right to family life. It involves, potentially, Article 2 rights because Superintendent Barron believes that there is a risk to R’s life. But it falls to be determined under s.25 of the Children Act 1989 which is not governed by the welfare principle in s.1 of the Act albeit welfare remains a relevant consideration, just not the Court’s paramount consideration.
20. The issue of course relates to a period of exactly 21 weeks. But in referring to that period of time I would not in any way seek to diminish its profound importance. It was not argued that the criteria in s.25 do not apply. It has not been argued, nor could it be, that C has a history, a very significant one, of absconding, the last time in August 2014, within 3 weeks of being placed in a non-secure residential placement. Still less it is not denied that if she does abscond, she is likely to suffer significant harm. The evidence of the risk of child sexual exploitation alone more than establishes that.
21. The question is whether in the particular circumstances a further order is required. In fact the question is more nuanced than that because as I will explain R indicated that she would not argue against a time limited order as part of an exit strategy from secure accommodation, but she does really seek to resist the 5 month order that takes her to her 18th birthday that the local authority seeks, despite the local authority emphasising to the Court that it is, of course, a permissive order and may not need to be used in full. R has no confidence in that because she fears- and not without reason- that the outcome of a further professionals’ meeting would be the same as it was in December. She invites me therefore to consider an order for up to 2 months to further the transitional plan, which is potentially still available, but then to be trusted for the remaining 3 months up to her birthday.
22. Mr Barron’s evidence was, as I have said, chilling and uncompromising. The risk he identifies is real and serious. He met with R quite recently. Despite the work that she had done around risk and safety, he felt that there was no modification in her thinking. He gave three reasons for that. First there was no recognition that what happened to her was wrong; she said she had consented to it. She is of course over 16 so over the legal age of consent, but she had no appreciation that ‘consent’ via grooming is itself part of the exploitation and it has succeeded in her case because she believed at the time, and appears still to believe, that she had in fact consented.
23. Secondly in explaining the risk, or attempting to explain the risk to C, he pointed out to her embarrassing photographs that he had seen of her in compromising positions with males. Her reaction was not to be upset but to appear amused.
24. Thirdly in asking to be given the chance to live independently she had said to him that ‘if it did not work out’, she could be put back in to secure accommodation. She did not seem to grasp that ‘not working’ was likely to equate to suffering rape or other serious assault.
25. Mr Barron identified the risk to her life from self-harm or suicide and gave an example from other children, young people similarly abused. The measures that he could identify that could practically be taken were limited. They involved in the main patrols and surveillance. Questioned, he said that cell site data was of limited value, likewise reporting and feedback, both of which in any event are subject to delay and are not therefore very effective in preventing serious harm from occurring.
26. He told me that of the known males within the operation that he is concerned with, 22 are now within the Criminal Justice System, of whom 10 are remanded in custody. A further 10 have been deported by the UK Border Agency. A still further 29 are under active investigation and then there are countless others, known through intelligence only at this stage.
27. Mr Shipley the team manager has known R well for several years. He was primarily the author of the exit strategy with the social worker, recognising the need for a planned exit, as he put it, ‘from a highly staffed environment to almost complete freedom’. Emphasising that he was not the decision maker, he told me that, having heard the concerns, the service manager felt it was a risk that the local authority simply could not take.
28. Mr Shipley was worried, absent taking that risk in effect, that an order to the age of 18 would result in R disengaging from the local authority but equally he acknowledged that the history of breakdown and absconding was not encouraging. He described to me how he felt his plan would have looked. The protective measures he identified was placement in [ ] supervised accommodation, trying to get R involved in a training scheme to keep her occupied by day, having a staff member on site to keep an eye overnight. Work would be done with R, taking her out and about, getting used to dealing with things within the community as well as one to one work, dealing with cooking, budgeting and the essential skills that any person needs in order to live independently, things that he says she cannot do at present. The training scheme identified is within the [a named charity]. That would keep her occupied 5 days a week. She would be escorted there by staff and would be working with other students. Were she to abscond from either that or her home, she would immediately be reported to the police as a missing person and put on high alert.
29. He emphasised that the local authority would also want to try and work with a plan whereby she could see her family and what he told me was that in terms of buying in to the plan, she was fully engaged. He described her as unique. ‘We do not see a lot of people like her’. Whilst, at times, she could work honestly with the local authority, it was extremely worrying that she had the capacity to go missing for long periods of time. He acknowledged that it was in fact her parents who on the last occasion helped to find her.
30. He said this;
“If she remains in secure accommodation to the age of 18, I think upon release she would choose to live with her parents. I would not see it as the best outcome for R and I do not know if R would see it as her best long term move. Of risk generally, I think the risk is high and it would be the same wherever. If she was with her parents, I do not think we would have the honesty of the parents to tell us if she had gone missing. The most important part of the release is preparation for independent living. We know she has some skills and can do quite a bit. But it is the emotional side of support. Making the transition from somewhere secure to wherever she is will cause some problems and it should be graduated. It is very difficult for young people in a secure setting. You can’t really prepare them for independent living and resettling in the community and that will be her biggest difficulty.”
31. He went on to tell me that, until the meeting in the December, he had recognised the risks and he would need to be confident that he could manage them, including R being honest enough to make the plan work and he saw a demonstration of honesty during the course of the plan as being part of the process. Feeding in to that would be reviews, evidence from placement and the staff and understanding of her movements. He said initially we would want to keep it as tight as possible to help her survive and he pointed out that the last time when she described herself as being bored and felt like doing something else, she absconded. That was really something to be avoided at all cost. The [charity placement] work would help towards that and there would be activities available to her at the weekend in the event that she was prepared to participate in them.
32. R gave un-sworn evidence before me very briefly. She had made her own short statement; pointing out what she had done, her achievements and her ambitions. They are, for her, considerable. In the rating band within the secure accommodation she consistently scores in the highest bracket. She says that she has engaged in the sexual exploitation program, such that she has been asked to help deliver it to others in future. As I have mentioned, she has been trusted to work in the kitchen. She is very keen, she told me, to go to the [charity]. What she told me was that the change of the plan had destroyed her trust in her team, in the local authority.
33. Finally I heard from Miss Hewitt, her Guardian for at least 5 years both in the care proceedings and in the subsequent secure accommodation applications, all of which she has previously supported. This time, her position is different.
34. She told me that she accepted the analysis of the risk to R. She recognised that the risks were significant but said it was for professionals, the police and the social worker, to manage them and that involved balancing what happens with her plan next. She said that her belief was that the best outcome would be for the making of an order that reflected the transitional programme and enabled it to progress. She emphasised that the day to day professionals, namely Mr Shipley and Miss Winkill, are those who have very good knowledge, are very committed and said she was lucky to have that team around her. It was a reflection of R that she had such a team because as she put it, ‘she evokes that response’. She has good qualities and gives to the professionals who know and work with her pleasure in carrying out their duty. She emphasised the dedication of the two professionals I have mentioned, as well as the staff at (withheld), all of whom want the plan to work for her.
35. She empathised with R’s own description of how secure accommodation feels to her: it is as if its being used as a punishment for her. What R said to me at the end of her evidence was that she had felt she was being ‘consequenced because of all of the Asian people’. Miss Hewitt told me that the transitional plan assisted in managing risk. It was a slow transition, a step by step process that would still involve spending significant times in (withheld) and to build up to more time living semi-independently, in the course of which there would need to be much discussion and meetings.
36. She said that she would look to cooperation from the parents. She was disappointed, having understood that they were on board, to hear them say, as they did, that they wanted her home and so additional risk factor, a worry as she described it, was their influence.
37. The contrast was to leave R in (withheld) until she was 18 and she described the significant effect on R, identified by the staff at (withheld), when the plan was all halted in December, to their surprise. Miss Hewitt said she understood that R could immediately start at [the charity]. It would take a number of weeks to prepare the property. It needs decorating, she would play a part in that. It needs furnishing, she would play a part in that. Then beyond that, as she said, it would have to be a matter of deferring to the residential workers. But there would need to be a lot of structure and structured environments are of the type that R responds to. So she felt that a Secure Order was needed to cover that transitional period, but not necessarily beyond.
38. This is a very difficult case. Whichever plan is approved carries risk, a very significant risk in the Court’s judgment, for R. It is the Court’s job to balance that risk and to make the decision which it judges best manages that risk, to ensure the best possible outcome, now and when she is 18. The Court cannot ignore the police evidence. It is as serious as it could be. As Mr Barron said, failure of the plan equates to C being raped again or worse. Hence his understandable view that the longer she is kept out of circulation, that cannot happen. It is, if I may say so without any criticism at all of this officer, a very traditional police view, not unlike the view that so long as an offender is in prison he or she cannot commit further offences. The public is thereby afforded protection but the problem is postponed.
39. The difference here, as R graphically put it, is that being held in secure accommodation is a significant deprivation of liberty, R, who is the victim, is being treated as the offender. It is almost intolerable to think that a victim of child sexual exploitation, can only be kept safe by being treated thus. Of course, were her family to be a supportive, protective factor, that would be very different. But it is clear I am afraid, that they are not. Quite apart from the history, the contribution of R’s parents to these proceedings demonstrates their total lack of insight. Thus the mother, in questioning the officer, characterised surveillance designed to keep R safe, as an objectionable invasion of privacy. Seemingly lost on her, was the contrasting staggering lack of privacy and abuse that R has experienced over the time to which I have referred.
40. Next, despite all that has been said (and I have not touched on the serial consistent failure of the family to maintain regular appropriate contact with R), they say that they want her to come straight home, demonstrating just how little they understand of what is involved here. The father pointed out that since R is over the age of consent, she is free to mix with these people if she wants to and, when she is 18, she can do what she likes. He put directly to the officer;
“You can have a copper following her everywhere she goes, but if she wants to go to bed with 20 men, there is nowt you can do to stop her.”
41. Like the Guardian, I regard their contribution as very worrying indeed. It is a further risk to be managed rather than support and I am quite clear that Mr Shipley recognises that all too well.
42. Set against that in what was the Guardian’s veiled criticism of both the police approach and that of senior management at the local authority, there is the view of Miss Winskill and Mr Shipley. Skilled professionals, they know R better than anyone else. They have clearly been able to work with R up until now and, until the events of December transpired, developed a degree of trust. Although to R they are the face of the local authority, I cannot emphasise enough to her that it was not them who, in her understandable terms, let her down. The Guardian effectively invites me to respect their views and plans and to give them a chance to work with R. Absent taking that chance the worst case scenario, and it is not a case of catastrophising or being excessively pessimistic, the process of disengagement will continue and R’s unfortunate statement to me about ‘having no social workers’, which I hope but cannot be confident about, was bravado, I hope that that can be reversed in pursuit of achieving her other ambitions at 18, to have;
“Her own home, a job and all the education I can get.”
43. I am clear that whilst no promises can be made and no outcome guaranteed, the persons with the best prospect of guiding R through this critical transition in her life, are Mr Shipley and Miss Winskill, if that trust can be rebuilt. If it cannot or if they are denied the chance, not only are they likely to cease to have a role in the leaving care process, but the chance of engagement by R is significantly reduced.
44. It seems to me that without ignoring or not respecting the police and senior management view, looking at the bigger picture and giving R the best footing for leaving care has to go beyond the short term expediency of guaranteeing protection for the next 147 days. To provide absolute protection for 147 days at the cost of, at worst, no protection on day 148 onwards, does not take a holistic view of safety. I note of course Mr Barron’s identification of the risk to life and, whilst I respect that view, there is no evidence before me of any history of self-harm or suicidal ideation. So whilst I cannot dismiss it out of hand, it seems to the Court that, of all the risks, it is one of low order.
45. Whilst in the current very concerning climate, and we all have the events in Rotherham, Rochdale and other places at the forefronts of our minds, it seems to me that the responsibility to protect a girl in care, a girl on the very eve of leaving that care, extends to putting her in the best position to be protected from the day that she leaves it onwards. Whilst the safety that she can be offered in the next 21 weeks may be less than absolute, if it increases her safety in the next 21 months following, that would be an outcome that would meet her needs better then and in to the future. And so, whilst I do not criticise the entirely understandable evidence based view taken by the local authority, it seems to the Court that it is a short term view that provides immediate reassurance for potentially considerably less reassurance going forwards.
46. Interestingly and encouragingly, R sees that too. For in offering to submit to an order for long enough to make the plan work, it seems to me therein is to be found such recognition. No one can say how long it will take because it depends on how it develops. But R’s insight is, as I say, encouraging and contrasts strikingly with that of her parents.
47. So the conclusion I have come to is that the proposal to move to a transition to independent living, is overall the one that affords R the best protection in the short to medium and, hopefully, longer term. It comes at high risk and that needs to be ameliorated by the measures already identified by Mr Shipley, in relation to [the sheltered accommodation] and placement [in the charity for training], the one to one work and the sanction of notification to the police, if she goes missing.
48. I have considered briefly at this stage, having not had the opportunity to have full argument, the possibility of making under the inherent jurisdiction of the High Court, a widespread injunction of the type devised by Keehan J in Birmingham City Council v Riaz & Others [2014] EWHC 4247 (Fam) but I am satisfied that at the present time the Court is not in a position, either evidentially or following proper argument, to make such an order. I would have liked to have been in a position to do so, but do not think that a decision today can await a separate application and the evidence being provided.
49. There are obvious disadvantages that exist in relation to such an order, which may involve an awful lot of work for very limited protection, I acknowledge. So, for example, the obvious factor is that not all of the males who are known to pose a risk, are currently within the Criminal Justice System and that the police, for entirely understandable operational reasons, are likely to be reluctant to disclose names that are not already in the public arena for fear of alerting the suspects to the police’s plans. There is the further disadvantage that there are very many people who are either not known or are the subject at the moment of no more than intelligence and it would be not only inappropriate, almost impossible, to have suitable evidence on which to base the making of an injunction. So, in short, it is not possible to injunct the world, so to speak. That said, I do not regard this as a power that should be dismissed as being an irrelevant one in terms of protection because it seems to me that, given what one knows of how these groups of males operate, that there may nevertheless be an advantage to R in placing an injunction on persons who can properly be named in respect of whom evidence exists, in the hope that that provides a measure of protection and may reduce the activities of others.
50. In the course of formulating its plan over the coming weeks, I urge the local authority in conjunction with the police, to look at this very closely again. There is however another short term measure that seems to the Court, can readily be pursued. It is disappointing to note that those offenders, or suspects rather, already within the Criminal Justice System who have been granted bail, have apparently been granted it with no conditions as to contacting potential complainants. I have urged Inspector Barron and I gather he is already on to this, to ensure that this issue is raised at the forthcoming Plea and Management Hearing which I understand is likely to take place in this building next week, so that the Crown Court judge can consider whether bail conditions, that restrict the ability of those people before it to contact people such as R, can be imposed. However all of that is, I am afraid, for another day.
51. I do emphasise that, in reaching the conclusion that I have, I have at the forefront of my mind, the recognition that the plan undoubtedly exposes R to risk of serious harm. But at this late stage in the Care Order, I am satisfied that that needs to be balanced with the risk of arguably more serious and enduring harm if she chooses to cut herself loose when she is 18.
52. The question therefore is how best that can be achieved. The local authority, understandably, seeks a permissive order to her 18th birthday. R equally understandably opposes it. As the Guardian points out, it would be again the decision of senior management, not the social worker and the team leader, and there is a real concern that the most risk averse position would simply be adopted again. I accept that that may yet become necessary regardless of the order.
53. But there is here an issue of trust. R does not have a good record when it comes to absconding, despite her compliant behaviour in secure accommodation and it is only 6 months since she last absconded. There may be some further maturation on her part, but there is no great promise of that. Set against that, the prospect of a type of suspended sentence hanging over her is not, in my judgment, a particularly positive one. It seems to me that R needs to be trusted and have demonstrated to her that she is being given some trust and she needs goals. Given how, in her understandable terms, she has been let down before she needs, in my judgment, to have a degree of confidence that if the plan works, it will be permitted to move on and that if the plan has failed, or it is argued it has failed, then it is the court that will make the required adjudication.
54. Judging how long this process might take is in effect asking for the length of a piece of string. In my judgment it is likely to take at least 2 months. Everything planned in December now has to be reactivated and there is much to do. Easter is just 7 weeks away and, as it happens, I am on leave for a period during that time and so if any further application is to be made I consider, barring an extreme emergency, that it should be made to me. Thus I have decided that an order should be made for a period of 10 weeks from today and so I make a secure accommodation order to 23rd April. That is, I stress, a permissive order. It does not prevent the gradual transition to [accommodation]. It does not mean that R cannot move to [accommodation] before 23rd April. I very much hope that she can move at an earlier date. I want her to engage with the process, to strive to demonstrate that engagement and to be honest with the local authority. Because whether it takes 4, 6, 8 or the full 10 weeks, what is at stake is nothing less than her future security as a young adult which in 21 weeks she will, in the eyes of the law, be.
55. I want her to appreciate the chance, the trust that is being offered her and to try and look at the longer term good and seize this opportunity. I very much hope that, notwithstanding what they said, her parents can support this but, even if they cannot, I hope that they have the decency not to undermine it. R needs to appreciate the support, devoted and dedicated from Miss Winskill, from Mr Shipley and from her Guardian. They want what is best for her in a way that she might wait for a very long time for other professionals to offer her, if she ever was to get the chance again. So I say to her, you should embrace this for all it is worth because it may simply not come around again.
56. So the order I make is a secure accommodation order to 23rd April 2015. This is a case which falls within subparagraph 4 of schedule 1 of the Practice Guidance of 16th January 2014 on Transparency and so I am going to direct that a transcript of this judgment be prepared, the cost of which shall be shared between the two represented parties, and it will in due course be published in an anonymised way on BAILII.
End of Judgment
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