England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		1st Mezzazine Queen's Building, Royal Courts of Justice Strand, London, WC2A 2LL
		23 January 2018

JUDGMENT NO.1

MR JUSTICE MOSTYN:

1. When Parliament enacted the Children Act 1989 an important provision was section 25, which is headed "Use of accommodation for restricting liberty". This provides that:

"…a child who is being looked after by a local authority, whether in England or Wales, may not be placed, and, if placed, may not be kept, in secure accommodation unless it appears-

(a) he or she has a history of absconding and is likely to abscond from any other description of accommodation; and if he absconds, he is likely to suffer significant harm; or

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

With Welsh devolution these provisions have been mirrored in identical provisions in section 119 of the Social Services and Well-being (Wales) Act 2014, which is a measure of the Welsh Assembly. Subsection (2) of section 25 provides:

"The Secretary of State 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 form 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 shall be made only by local authorities."

The relevant regulations are the Children (Secure Accommodation) Regulations 1991 which provide that the initial maximum period for which a court may authorise a child to be held in secure accommodation is 3 months, and thereafter for periods of up to 6 months. There is no limit on the number of renewals that may be made. Section 25(3) provides:

"It shall be the duty of a court hearing an application…to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied."

This requirement applies de novo on each renewal application. Subsection (4) provides:

"If a court determines that any such criteria [as are mentioned in (1)] 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." [Emphasis added]

The use of the imperative form of the verb "make", i.e. the use of the expression "shall make", might, on a literal meaning, suggest that the court had no discretion if the factual criteria were satisfied, but to make a secure accommodation order, but high authority has held that that would be a misreading, or an over literal reading, and would not take into account obvious considerations of proportionality. The regulations made in relation to this provision go on to provide that where a secure accommodation order is made there shall be reviews made periodically of the detention in secure accommodation.

2. So it can be seen that Parliament, through the democratic process, has enacted a very clear and highly prescribed scheme, the prescriptions of which include defined maxima for the periods of detention, the requirement of reproof de novo on each renewal, coupled with a supervisory role by the appropriately designated bodies.
3. Since the enactment of the Act that scheme appears to have functioned tolerably well until recent times, when an unhappy phenomenon has arisen, and that phenomenon is that there had not been sufficient authorised places made available under this section. When I say "authorised places" I am talking about places that have been authorised by regulations made pursuant to subsection (7), which allow the Secretary of State to prescribe which places may provide secure accommodation. In recent times, a phenomenon has arisen, as I have said, whereby insufficient places have been made available to meet the demand for children to be placed in secure accommodation. Therefore, a mirror procedure has been devised by the High Court which has authorised placements in secure environments for children in places not authorised pursuant to the regulations made under section 25 of the Children At. And this is such a case. There is no suitable place to accommodate a child pursuant to an order under section 25 of the Children Act (or its Welsh equivalent) apparently available anywhere in the country, even in Scotland.
4. There have been a number of authorities as to the scope of the power of the High Court under an inherent jurisdiction to make these alternative mirror arrangements. In my opinion, lest the democratic process is to be subverted by judicial activism, it is important that, so far as is practicably achievable, that mirror orders made under the inherent jurisdiction conform as much as possible with the prescriptions within section 25 and its subsidiary regulations. Were the court to devise an alternative scheme that deviated significantly from the terms of section 25 (or its Welsh equivalent) there would, as I have said, be a danger of criticism of judicial activism in conflict with a Parliamentary directive.
5. Therefore, it seems to me that if the court is to make an alternative mirror order pursuant to its inherent jurisdiction, it should strive to ensure that, in the first instance, it is not longer than 3 months, and that each subsequent renewal is for no more than 6 months. Further, it should be satisfied initially and on each renewal that the criteria within section 25(1) are met. I am not saying that the court is imprisoned within the four corners of the terms of section 25(1). To coin a phrase, it should not have its liberty so deprived, but there should be endeavours made by the court that, so far as possible, it should be satisfied that the statutory criteria are met. Were that not so, then there would be, by judicial activism, established an alternative scheme which perhaps might have lower standards than that which Parliament has decreed should apply where the liberty of a child who is the subject of a care order is deprived.
6. The compliance of section 25 with the European Human Rights Convention and the Human Rights Act was considered by the Court of Appeal in the famous case of Re K [2001] 1 FLR 526. In that case it was held that a secure accommodation order is indeed a deprivation of liberty within the meaning of article 5 of the Convention, but it is not incompatible with the Convention where it is justified under one of the exceptions in article 5(1). For example, where the order is for the purposes of educational supervision. I should say here that education within article 5(1) plainly is not to be read as being confined purely to scholastic instruction, but must be given, for the purposes of the construction of that provision, a wider definition. Re K was decided 17 years ago, and since then there have been (as is well known) significant developments both in the Strasbourg Court and domestically in the interpretation of the scope and meaning of article 5. Famously, in Storck v Germany [2005] 43 EHRR 96 it was held that in order for article 5 to be engaged three criteria must be met: namely, that there must be an objective component of confinement in a particular restricted place for a not negligible length of time; secondly, there must be a subjective component of lack of valid consent; and, thirdly, there must be an attribution of responsibility to the state. Thus, there must be a non-consensual detention at the behest of the state. This formulation was approved by the Supreme Court in the Cheshire West case [2014] UKSC 19 at para 37.
7. The second limb of the formulation requires there to be a lack of valid consent. An interesting question arises, which is relevant to the decision that I have to make, as to whether this requirement has to be demonstrated when an application is determined under section 25 of the Children Act 1989. The notes to the Red Book state that the consent of a young person to the making of a secure accommodation order is not required. The citation for that is Re W (a child) [2016] EWCA (Civ) 804. But that does not really answer the question that I am now posing, which is that if the young person who is the subject of an application under section 25 consents to the application, can the order in fact validly be made? Because in order for there to be a deprivation of liberty, there must be, as the Strasbourg Court has said, present the subjective component of lack of valid consent. So one can see a curious catch-22 arising, which is where the local authority consider that a child should be placed in secure accommodation, and the child through his representatives realises that the case against him or her is very strong, if not overwhelming, and consents to it, that the act of consent in fact prevents the order being made. That cannot be an acceptable construction of the provision, in my respectful opinion, and it is for this reason that consent, or lack of consent, never features in applications under section 25, and that, as Miss Edmondson has eloquently explained, in many cases the applications for these orders are disposed of by consent.
8. So this gives rise to the question whether there must be demonstrated lack of valid consent if the application is being made under the alternative mirror procedure pursuant to the inherent jurisdiction. If the issue of lack of consent is not a requirement under the statutory procedure, and if, as I have suggested, it is important that the alternative mirror procedure conforms as much as possible to the statutory procedure, it is hard to see why there should be an imputation of the lack of consent requirement into the alternative procedure. However, I am persuaded by Mr Laing that all the authorities under the alternative procedure have emphasised strict compliance with the Strasbourg jurisprudence on article 5. Therefore, I do accept, even though this may appear anomalous, that where the court is considering secure accommodation pursuant to the alternative procedure, that it does have to be satisfied of the presence of a lack of valid consent. It may well be that in a case in which an application is being made under section 25 (or under its Welsh sibling) the court will have to consider the point that I have spent some time describing, and whether there does in fact, since the arrival of the Strasbourg jurisprudence to which I have referred, lie latently within section 25 an insoluble catch-22.
9. So I proceed on the basis that in order for the order to be made today, the 3 components have to be present. There is no dispute as to the first and the third. The question is as to whether the second is demonstrated in circumstances where there is active consent by the child with whom I am concerned to the placement in question.
10. This matter was considered by Keehan J in the decision of A local authority v D [2016] EWHC 3473 (Fam) (otherwise known as Re C). It has to be said that in that case the conduct of the children concerned was very much of a lower level of concern to that which I am concerned with. However, Keehan J decided clearly that the child in question could give a valid consent. Moreover, he decided at paragraph 58 that once he was satisfied that valid consent has been given, the fact that he may withdraw that consent at some point in the near future does not negate the valid consent he gave nor does it negate the legal consequences of that consent. I have considered this judgment carefully, and I take from it that the concept of consent does not necessarily mean hearing the words "I do". There must be an authentic consent, and this much is accepted by Mr Laing who represents the child. As he put it, he must say it and mean it. The consent in question must be an authentic consent, and it must be an enduring consent. This means that the court will have to make a judgment as to whether the consent is going to endure in the short to medium term, or whether it is a merely evanescent consent. If the court is satisfied by the history that the consent in question is merely evanescent and is not likely to endure, then, in my judgment, that is not relevant consent for the purposes for which I am concerned. This is, to my mind, to state the obvious. So the court can only make the order in question if it is satisfied that there is a lack of valid consent in the way that I have described it: authentic, and likely to endure.
11. So I turn to the facts of this case, which I can deal with relatively shortly. The history, which is not disputed, is very concerning. I do not dispute that the child is content where she is by and large, but her stay in the place where she is presently placed has been repeatedly punctuated by disturbing and concerning incidents, one of which was as recent as 8 days ago. I do not propose to set these out. They are described in the skeleton arguments fully, and the schedule in Mr Laing's second skeleton argument describes it chronologically. I am satisfied, and I mean no disrespect to the child by saying this, that the consent in question given here does not satisfy the standards which I have described, and that therefore there is not here present valid consent in the sense required by the decision of Storck. Therefore, the order in question will incorporate the appropriate deprivation of liberty declaration. That carries with it, of course, protection and entitlement for the local authority to ensure that, were the child to abscond again, they would be fully empowered to call on the assistance of the police for her recovery; it ensures that the local authority is legally protected in respect of any steps in that regard that it might take; and it describes, to my mind, also the reality of the situation that whilst there may be an expression of consent by the child, that she is nonetheless in a condition of state detention.
12. I should say that in reaching the conclusion that the order is justified I am fully satisfied that one or other limb of section 25(1) is satisfied. I am satisfied that there is here a history of absconding, and that without the restrictions of a secure accommodation order she is likely to abscond and, if she were to abscond, is likely to suffer significant harm. I am also satisfied, on the alternative limb, that if she were kept elsewhere, she would be likely to injure herself. Therefore, on each alternative as set out in section 25 (and in its Welsh counterpart) I am satisfied that that justifies me making the order that I do. I am also justified that it is in the child's best interests. So that is the first element of the order I make today.
13. The second element is not opposed, indeed it is urged on me by all parties, which is that my order should positively authorise the present placement of the child in circumstances where that institution is not yet registered with Ofsted. Without my order, the local authority would not be legally empowered to place the child there under the relevant regulations, and so it needs the authority of the court to make what would otherwise be an unauthorised placement.
14. For these reasons, I make that order.