England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT

		12th October 2015

JUDGE BELLAMY:

1. P is now just over 16 years of age. With the consent of her mother she has been accommodated under s.20 of the Children act 1989 since October 2013. In February 2014 the local authority issued care proceedings. At the final hearing of the care proceedings I concluded that P's best welfare interests required that she be made a ward of court. An issue now arises concerning the arrangements for her present care. The local authority has applied to the court for a secure accommodation order. There is an issue as to the court's power to make a secure accommodation order given that the application was issued shortly after P's 16^th birthday. This judgment relates to that issue.
2. Since issuing the application for a secure accommodation order P has been compulsorily detained under s.3 of the Mental Health Act 1983. With the consent of the parties the application for a secure accommodation order has been adjourned generally with liberty to restore. For reasons which will become clear later in this judgment, the local authority remains concerned that it may in due course find itself in a position in which it considers it necessary to proceed with the application for a secure accommodation order as a matter of urgency. I agreed, therefore, to address the issue of jurisdiction at this stage.

Background

3. In 2013 P telephoned Child Line stating that she wanted to harm herself and was thinking of ways to end her life. That telephone call led to the beginning of multi-agency involvement with P and her family. Over the course of the next six months P's behaviours included frequent self-harming, threats to kill herself and running away from home. Following the mother's agreement to P being accommodated by the local authority, P was placed with foster carers.
4. In December 2013 P said that she had taken an overdose of Ibuprofen. She also said that she was hearing voices. She was taken to hospital. She was seen by a psychiatrist and by Child and Adolescent Mental Health Services ('CAMHS'). She remained in her local hospital until a specialist bed became available. As there were no specialist beds available locally she was placed in a unit more than 100 miles from her home. She was admitted as a voluntary patient.
5. P's behaviours continued whilst in hospital. She made further attempts to self-harm. She refused to eat. In January 2014 she was detained under s.2 of the Mental Health Act 1983. In February, she was detained under s.3. In July 2014 she applied to a Tribunal to be discharged from her section. Her application was refused.
6. During the course of the care proceedings the court gave permission for an assessment of P by Dr R, a Consultant Child and Adolescent Psychiatrist. In her report, Dr R said that P presents

'with complex multiple psychopathology which seriously impact on her day to day functioning…P presents with multiple comorbidity. Whilst this clusters into a number of diagnostic groups of emotional disorders (obsessive-compulsive disorder, anxiety disorders, recurrent depressive disorder) and psychotic disorders, most of them do not reach formal diagnostic criteria. The cumulative impact on P's emotional and social functioning on a day to day basis is however significant and very impairing indeed. He psychosocial disability as a result is moderate to severe…There are at this stage two clusters that are more convincing in terms of diagnostic validity. These are emerging borderline personality disorder (a form of an emotionally unstable personality disorder) and post-traumatic stress disorder.'

7. In the context of recent events it is also appropriate to note Dr R's explanation of the features of emerging borderline personality disorder. These comprise,

'a pattern of marked impulsivity and instability of affect, interpersonal relationships and self-image. The pattern is present by early adulthood, usually emerges in adolescence, and occurs across a variety of situations and contexts. Because a personality disorder is a pervasive, enduring and inflexible pattern of maladaptive inner experiences and pathological behaviour, there is a general reluctance to diagnose personality disorders before adolescence or early adulthood. However, without early treatment symptoms may worsen. Hence early recognition of this pattern is very important.'

8. The final hearing of the local authority's application for a care order came before me in August 2014. The mother's consent to P being accommodated under s.20 remained in place. I concluded that P's welfare interests would be best served by her being made a ward of court rather than being made the subject of a final care order. In light of the decision of the Court of Appeal in Re E (Wardship Order: Child in Voluntary Accommodation) [2012] EWCA Civ 1773 I was satisfied that I had the power to proceed in that way.
9. In September 2014 P was transferred to a specialist less secure unit closer to her home. That move was short-lived. Concerns about P's behaviour led to her being transferred to a more secure unit. P made progress. In February 2015 she was transferred to a 'step-down' facility with a view to her ultimate discharge from hospital. The next month she was discharged from her section but remained in hospital as a voluntary patient. Plans were made for her ultimate discharge from hospital.
10. In June P was discharged into a therapeutic community placement. She continued to self-harm. She also ran away from her placement. There was a significant deterioration in her behaviour in August.

Recent history

11. On 19^th August P self-harmed by cutting her arms. On 20^th August she inserted the inner tube and nib of a biro into her arm. She was admitted to Hospital A. Whilst in hospital she attempted to make ligatures. She was placed on 1:1 round the clock supervision.
12. On 21^st August, following an assessment by CAMHS, P was discharged back to her community placement. Hospital A did not inform the local authority of its intention to discharge P back to her placement. The community placement was not able to provide the same level of round the clock supervision.
13. Three days later, on 24^th August, P swallowed two AA batteries. She was re-admitted to Hospital A. The next day she was transferred to a Children's Hospital (Hospital B). She was admitted to a surgical ward. The treating clinicians decided that there was no urgent need to operate to remove the biro. The AA batteries were finding their own way out of P's system.
14. On 31^st August, whilst still a patient at Hospital B, P again swallowed 2 batteries, despite then being on 2:1 supervision paid for by the local authority. P also self-reported that she had inserted a piece of plastic into her leg.
15. On 1^st September P absconded from the hospital. She was soon found and brought back to the ward.
16. Although she remained on a surgical ward, P was also under the care of a locum Consultant Child & Adolescent Psychiatrist, Dr Z. The question arose about whether P should again be compulsorily detained under s.3 of the Mental Health Act. It was Dr Z's opinion that detention under s.3 was not appropriate. In a written report dated 2^nd September Dr Z said that,

'1. P is currently on an adequate pharmacological treatment for her Post Traumatic Stress Disorder symptoms.

2. There is no evidence of a serious and enduring mental disorder and as P has been extensively assessed by mental health services, and as if admitted to a mental health bed she is likely to learn further self-harm strategies, and this will prevent her from acquiring the cognitive and social skills necessary to be able to function as an adolescent, I am not recommending another admission to an inpatient mental health bed.

3. In my opinion P requires a long term placement with the capacity to offer a secure environment that could prevent her from absconding and could offer one to one supervision 24 hours a day for periods of time, in which P could access education and therapy. P is a vulnerable young person and due to the risk of absconding, when she is likely to suffer significant harm or injure herself, I would recommend that the Court considers a Secure Accommodation Order (Section 25 of the Children's Act 1999 (sic)) for P.'

17. The local authority sought a hearing before the court. I re-appointed P's children's guardian from the care proceedings. On 3^rd September I heard from counsel for the local authority and for the guardian. I was concerned about the views expressed by Dr Z. I therefore listed the matter for further hearing on 8^th September and directed that Dr Z should attend.
18. Dr Z gave evidence at the hearing on 8^th September. His position remained unchanged. He accepted that the risk of further self-injurious behaviour was high. However, in his opinion P was not suffering from either an acute or an enduring mental illness. He was unable to identify any mental disorder. In his opinion P did not require compulsory admission to hospital under the Mental Health Act. I was left with the impression that the real problem was to do with the scarcity of CAMHS Tier 4 inpatient beds and that that was the reason why it was being proposed that P be diverted into secure accommodation.
19. Though not convinced that a secure accommodation order was appropriate, the local authority made strenuous attempts to find a secure accommodation placement for P. More than 50 units were approached. The search was unsuccessful.
20. The matter came back before me on 11^th September. By then the local authority had identified a placement for P which appeared able to provide the care and oversight she needed. P moved in to this placement on 14^th September. The local authority agreed to provide round the clock 2:1 supervision.
21. Notwithstanding that level of supervision, during the evening of 22^nd September P was found using a sock as a ligature around her neck.
22. The next day, 23^rd September, the matter came before me again. I was informed of the incident the previous evening. I was told that it was unclear whether P was to be detained under s.3 of the Mental Health Act 1983. Later in the day I was informed that P was to be assessed the 24^th September. I adjourned the hearing until the next day
23. During the evening of 23^rd September P managed to abscond from her placement. She was found by a passer-by threatening to throw herself from a bridge. The police were called and managed to talk her down. Exercising their powers under s.136 of the Mental Health Act 1983, the police took her to Hospital C where she was placed on an adolescent Psychiatric Intensive Care Unit.
24. The matter came back before the court on 24^th September. It was unclear whether P was to be compulsorily detained under s.3 of the Mental Health Act 1983. The local authority therefore agreed to issue an application for a secure accommodation order. That application was listed for hearing on 30^th September.
25. Dr Y, a locum Consultant Child & Adolescent Psychiatrist has been responsible for P's care since her re-admission to hospital on 24^th September. In a written report dated 29^th September, Dr Y accepted that P 'does require on-going mental health treatment'. He went on to say that

'Given P's high risk mental state, our recommendation is that should [she] attempt to leave hospital and not be amendable to reasonable persuasion and negotiation, that she would need to be detained against her wishes'.

It is not entirely clear whether he was suggesting that a secure accommodation order should be sought or that P should be compulsorily detained under s.3. Dr Y did, though, go on to say that,

'An open ward inpatient mental health unit is not a suitable placement for her due to her level of risk to self and others. However, if this is the only option available, I believe it would be in P's best interest to seek a local Tier 4 unit'

26. Section 33 of the Mental Health Act 1983 provides that,

'(1) An application for admission to hospital of a minor who is a ward of court may be made under this Part of this Act with the leave of the court.

(2) Where a minor who is a ward of court is liable to be detained in a hospital by virtue of an application for admission under this Part of this Act or is a community patient, any power exercisable under this Part of this Act or under section 66 below in relation to the patient by his nearest relative shall be exercisable by or with the leave of the court.'

Late in the afternoon of 29^th September I granted leave to an application being made for P to be compulsorily detained under s.3. P was compulsorily detained later that day. It was on that basis that on 30^th September the local authority's application for a secure accommodation order was adjourned generally.

27. Almost a year ago, on 5^th November 2014, the House of Commons Health Committee published its report Children's and adolescents' mental health and CAMHS. Its conclusions with respect to the availability of Tier 4 beds bear repetition:

'158. It is clear that there are major problems with access to Tier 4 inpatient services, with children and young people's safety being compromised while they wait, suffering from severe mental health problems, for an inpatient bed to become available. In some cases they will need to wait at home, in other cases in a general paediatric ward, or even in some instances in an adult psychiatric ward or a police cell. Often when beds are found they may be in distant parts of the country, making contact with family and friends difficult, and leading to longer stays.'

28. In this case it took five weeks from 20^th August (when P was admitted to Hospital A having inserted a biro into her arm) until 23^rd September (when P was taken to Hospital C following her threat to throw herself from a bridge) for a mental health bed to be found for P. That delay is very regrettable. Given the events of the evening of 23^rd September, it could have had catastrophic consequences.

Secure accommodation orders

29. The statutory basis for secure accommodation orders is to be found in s.25 of the Children Act 1989. So far as is material. Section.25 provides that:

(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.

(2) The appropriate national authority may by regulations—

(a) specify a maximum period—

(i) beyond which a child may not be kept in secure accommodation without the authority of the court; and

(ii) for which the court may authorise a child to be kept in secure accommodation;

(b) empower the court from time to time to authorise a child to be kept in secure accommodation for such further period as the regulations may specify; and

(c) provide that applications to the court under this section shall be made only by local authorities.

(3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.

(4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.

30. The meaning of the expressions 'looked after by a local authority' and 'accommodation' are set out in s.22 of the Act which provides that:

(1) In this Act, any reference to a child who is looked after by a local authority is a reference to 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 are social services functions within the meaning of the Local Authority Social Services Act 1970 apart from functions under sections 17, 23B and 24B.

(2) In subsection (1) "accommodation" means accommodation which is provided for a continuous period of more than 24 hours.

31. Section 20 of the Act is headed 'Provision of accommodation for children'. So far as is material, it provides that,

(1) 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—

(a) there being no person who has parental responsibility for him;

(b) his being lost or having been abandoned; or

(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.

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

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.

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

Whether a child aged over 16 is accommodated under s.20(3), s.20(4) or s.20(5) is an issue of fact for the determination of the court in the event that the parties are not agreed.

32. With respect to the meaning of 'child in need', s.17 provides that,

(10)   For the purposes of this Part a child shall be taken to be in need if—

(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled,

and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

33. Section 105 of the Act defines a 'child' as a person under the age of 18.
34. Alongside those statutory provisions regard must also be had to the Children (Secure Accommodation) Regulations 1991. For present purposes the relevant regulation is regulation 5. Headed 'Children to whom section 25 of the Act shall not apply', reg. 5 provides that,

(1) Section 25 of the Act shall not apply to a child who is detained under any provision of the Mental Health Act 1983 or in respect of whom an order has been made under section 90 or 91 of the Powers of Criminal courts (Sentencing) Act 2000 (detention at Her Majesty's pleasure or for specified period).

(2) Section 25 of the Act shall not apply to a child–

(a) to whom section 20(5) of the Act (accommodation of persons over 16 but under 21) applies and who is being accommodated under that section,

(b) in respect of whom an order has been made under section 43 of the Act (child assessment order) and who is kept away from home pursuant to that order.

35. It is clear from reg. 5(1) that as a result of her detention under s.3 of the Mental Health Act 1983, P cannot at present be made the subject of a secure accommodation order. If P should cease to be detained under s.3 and continue to be accommodated by the local authority, can she then be made the subject of a secure accommodation order under s.25 or does the fact that she has now passed her sixteenth birthday mean that the powers available under s.25 cease to apply?
36. The uncertainty in answering that question arises as a result of a passage from the judgment of Hayden J in London Borough of Barking and Dagenham v SS [EWHC] 4436 (Fam). It is important to note that the case concerned a young person who was described as being 'in her 15^th year'; the question of whether a secure accommodation order could be made in respect of a child aged over 16 did not arise.
37. Hayden J sets out what he describes as the 'core principles' relating to the scope of section 25.

'2. There has been some confusion in this case by counsel as to the scope of section 25. There need be none. The core principles seem to me clear, though worth restating:

(1) It is the essence of 'curtailment of liberty' rather than any particular, or designated, establishment which underpins these orders (see Metropolitan Borough Council v DB [1997] 1 FLR 567);

(2) Secure accommodation is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights incorporated into domestic legislation by the Human Rights Act 1998 (see Re K (Secure Accommodation Order: Right to liberty) [2001] 1 FLR 526 CP);

(3) The two limbs of s.25(1)(a) and (b) are to be read disjunctively and not conjunctively; that is to say either the criteria under (a) or (b) is sufficient. Both are not required (see Re D (Secure Accommodation Order No.1 [1997] 1 FLR 197);

(4) It remains important to emphasise that there should always be a clear record of facts, when making an order under these provisions. Sworn evidence will always be necessary (see Re AS (Secure Accommodation Order) [1999] 1 FLR 103);

(5) When assessing the phrase "likely to abscond", the test is that applicable to the s.31 Children Act criteria, the so-called "threshold test". (see Charles J in S v Knowsley Borough Council [2004] 2 FLR 716);

(6) However, 'likely' in both limbs of that section must now, like the s.31 criteria themselves, be determined by reference to the clarification given by the Supreme Court in Re B [2013] UKSC 33 and Re SB (Children) [2009] UKSC 17, bearing in mind that it is not a permissible approach to find likelihood of future harm in the absence of findings predicated on actual fact;

(7) The court does not have power to make an order under s.25 in respect of a young person over the age of 16, but the order may be made prior to a child becoming 16, even if it extends beyond the child's 16^th birthday; (Re G (Secure Accommodation Order) 2001 1FLR 259

(8) Section 25 is not a provision to which the paramountcy principle applies. Section 25 is under the framework of Part 3 of the Children Act 1989 and, therefore, concerned with the general powers and duties of a local authority in relation to children within its area. The general duty of a local authority which applies to promote and safeguard the welfare of the child is not the same as the paramountcy principle. Determining welfare, though, will be illuminated, as always, by reference to the s.1(3) criteria, the welfare checklist. In these cases 'welfare' will always weigh very heavily.'

38. Sub-paragraph (7) is in clear and unequivocal terms: 'The court does not have power to make an order under s.25 in respect of a young person over the age of 16'. If that statement of principle is correct then no matter what P's situation when she is discharged from detention under s.3 of the Mental Health Act 1983 the court would not have the power to make a secure accommodation order. Miss Cranny (for the local authority) and Miss Howell (for P) both submit that that statement applies only to children accommodated under s.20(5) and not to those accommodated under s.20(3).
39. Re G (Secure Accommodation) [2000] 2 FLR 259 concerned a girl who, when aged 15, who was accommodated by a local authority pursuant to s.20(5) of the Children Act 1989. She had been the subject of a series of secure accommodation orders under s.25, the most recent of which was made whilst G was still aged 15 but did not expire until after G had celebrated her 16^th birthday. The question for the court was whether the court had the power to make a secure accommodation order which would continue in force beyond her 16^th birthday. The Court of Appeal decided that the court does have that power.
40. That does not mean that the court has the power to make an order under s.25 in respect of a young person who has already reached the age of 16, though there are passages in the judgments of Thorpe LJ and May LJ which suggest that the court does have that power. In considering G's circumstances, Thorpe LJ said that,

'(21) …the question as to the basis of G's detention or accommodation once she attains the age of 16 is by no means open and shut. It may be that her history and circumstances are such that the local authority will be under a duty to provide accommodation for her rather than simply having a discretion so to do. It is not for us to decide, but at first blush I would tend to think it more likely that the history and circumstances would be sufficient to create a duty on the local authority to provide accommodation under subs (3).

41. Agreeing with Thorpe LJ, May LJ said that,

'(22) I agree, and would only add this on the main point. The Official Solicitor through Mr Murdoch submits that the judge's secure accommodation order of 9 December 1999 could not lawfully have extended beyond G's sixteenth birthday on 27 December 1999. The judge in fact set the period running to 31 December 1999. The order was made under s 25 of the Children Act 1989, and Mr Murdoch's submission draws attention to reg 5(2) of the Children (Secure Accommodation) Regulations 1991, which provides that:

'Section 25 of the Act shall not apply to a child—

(a) to whom section 20(5) of the Act … applies and who is being accommodated under that section …'

(23) Section 20 prescribes circumstances in which a local authority either shall or may provide accommodation for a child.

(24) Under s 20(3) the local authority are required to provide accommodation for a child 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.

(25) Under s 20(5) the local authority may provide accommodation for any person who has reached the age of 16 but is under 21 in any community home which takes children who have reached the age of 16 if they consider that to do so would safeguard or promote his welfare.

(26) It is clear that the circumstances envisaged by subs (3) are more pressing, generally speaking, than those envisaged by subs (5), and that subs (5) can extend to persons up to the age of 21. It looks as if considerations such as these may explain the thinking behind reg 5(2).'

42. Those observations appear to make two points. Firstly, that there is an important distinction between s.20(3) and s.20(5), the former creating a duty upon a local authority to accommodate a child over the age of 16 and the latter giving a local authority a discretion to accommodate a child between the ages of 16 and 21. Secondly, that the restriction imposed by reg 5(2) of the Children (Secure Accommodation) Regulations 1991 applies to a child accommodated under s.20(5) but not to a child accommodated under s.20(3).
43. That was certainly the understanding of His Honour Judge Wildblood QC in A County Council v B [2013] EWHC 4654 (Fam). The case concerned a 17 year old child, CB. After referring to the passage in the judgment of Thorpe LJ in Re G (Secure Accommodation) to which I have already referred, Judge Wildblood went on to say that,

'11. …at the start of the argument today I questioned whether C should be regarded as a child who was being provided with accommodation in accordance with section 20(3) of the Act. If she was, then the matter would be simple and section 25 accommodation would be available in principle.'

Although the parties were agreed, and Judge Wildblood accepted, that CB was not being 'looked after' by the local authority, it is clear that if she had been accommodated under s.20(3) the court would have accepted that it had the power to make a secure accommodation order.

Conclusion

44. There remains a possibility that if P is discharged from her section the local authority may yet find itself in a position where it considers it necessary to seek to proceed with its application for a secure accommodation order. It is for that reason that I agreed to determine the jurisdiction issue at this stage.
45. In my judgment it is clear that the restrictions imposed by reg. 5(2) on making a secure accommodation order under s.25 in respect of a child over the age of 16 are limited to children who are accommodated as a matter of discretion under s.20(5) and do not extend to children who are accommodated as a matter of duty under s.20(3). Where a looked-after child aged between 16 and 18 is accommodated under s.20(3) of the Children Act 1989 the court has the power to make her the subject of a secure accommodation order under s.25. It follows, therefore, that in this circumstances of this case it is appropriate that the local authority's application for a secure accommodation order be adjourned generally with liberty to restore should circumstances arise in which it considers it appropriate to do so.