High Court of Justice in Northern Ireland Family Division Decisions

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Cite as: [2001] NIFam 17

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North and West Belfast Health and Social Services Trust v DH [2001] NIFam 17 (27 June 2001)

Neutral Citation no. [2001] NIFam 17

Ref:

HIGF3449

Judgment: approved by the Court for handing down

Delivered:

27.06.2001

(subject to editorial corrections)

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

FAMILY DIVISION

________

NORTH AND WEST BELFAST HEALTH AND SOCIAL SERVICES TRUST

-v-

RE: DH 2000/250

________

HIGGINS J

This is an application for a secure accommodation order in respect of DH who was born on 29 December 1984 and is now aged 16 years and 5 months. This is the fourth consecutive application for a secure accommodation order. On 1 December 2000, I made an interim secure accommodation order and on 14 December 2000 I made a secure accommodation order until 23 February 2001. On that date Gillen J made a further secure accommodation order until 23 April 2001 on which date he made a further secure accommodation order until 6 June 2001. On 23 May 2001 the North & West Belfast Health and Social Services Trust ( the applicants ) applied for a further secure accommodation order which came on for hearing on 6 June 2001. The order made by Gillen J on 23 April expired at 5 pm on 6 June.

DH has a significant care history and in January 1999 was voluntarily accommodated in Glenmona Rescource Centre. His lifestyle and frequent absences from Glenmona led to care proceedings being initiated in May 2000 and since 30 May 2000 he has been the subject of interim care orders. He was first placed in secure accommodation on 23 November 2000 and on 24 November Belfast Family Proceedings Court made a secure accommodation order authorising that he be kept in secure accommodation, following which order all the proceedings were then transferred to the High Court. The care proceedings are scheduled to be heard later in June 2000. The secure accommodation orders have been made due to a history of absconding and the likelihood of significant harm, associated with a lack of formal education and risk attendant behaviours, including solvent and drug abuse as well as criminal activity and also due to his association with R McG a lady in her mid thirties. It is clear that it is inappropriate for him to associate with this lady in any way.

Since he was first placed in secure accommodation DH has absconded on three occasions. He absconded on 28 February and remained at large until 10 April. He absconded on 8 May and was recovered on 10 May in the company of a person believed to be RMcG. The last occasion was on 16 May 2001 and he remains at large. He is also on bail on criminal charges relating to alleged assaults on staff and other young persons at the secure accommodation premises. RMcG is also now on bail on criminal charges. She was due to appear at Belfast Magistrates Court on 18 May 2001. She failed to appear and a bench warrant was issued for her arrest. Neither have been seen since 16 May 2001. It is believed they are together.

Following the recovery of D on 10 May a planning meeting was held on 11 May to determine how best to deal with the very difficult situation that had developed. It was decided to recommence the Trust's programme to establish D within the Simon Community at their hostel on the Falls Road, Belfast as part of an exit strategy from secure accommodation. This programme commenced on 15 May and D spent that night at the hostel returning to the secure accommodation at Lakewood Centre for educational provision on 16 May. On his return to the hostel on that date for another overnight stay he absconded and he is still at large. It remains the intention of the Trust to return D to some accommodation in the community, perhaps the Simon hostel, when he is recovered, but only after a phased and planned exit strategy. D was not in attendance at the hearing on 6 June. He was represented by his own solicitor and by Miss Gregan Both of them had appeared on his behalf on the earlier applications. In addition the GAL appointed in the case was also present and represented by his solicitor, Mr Keenan. Miss O'Hagan appeared on behalf of D's mother who was also present. She is concerned about her son's whereabouts and welfare. Mr Lowry appeared on behalf of the applicant Trust. He applied that the application for a secure accommodation order should proceed, despite the absence of D.

Article 44(1) defines 'secure accommodation' as accommodation provided for the purpose of restricting liberty. If the criteria set out in Article 44(2) are satisfied a child who is being looked after by an authority, may be placed and if placed, may be kept in secure accommodation by that authority, usually a Trust. Under Article 44(3)(a) the Department may by regulations specify the maximum period beyond which a child may not be kept in secure accommodation without the authority of a court and the maximum period for which a court may authorise the child to be so kept. Regulation 6 of the Children (Secure Accommodation ) Regulations 1996, made under Article 44(3), specifies 72 hours as the maximum period beyond which an authority may not keep a child in secure accommodation without court authorisation. Regulation 7 specifies 3 months as the maximum period for which a court may authorise a child to be kept in secure accommodation, on a first application. Under Article 44(3)(b) the Regulations may empower the court to authorise a child to be kept in secure accommodation for such further period as the regulations may specify. Regulation 8 permits a court to authorise a child to be kept in secure accommodation for a further period not exceeding 6 months at any one time.

In Re AK 2000 1 FLR 317 I ruled that in ordinary cases a child ought to be already placed in secure accommodation at the time an application for authorisation is made. However, exceptional circumstances could justify the making of an application when the child was not in secure accommodation. Furthermore I stated that exceptional circumstances would not include cases in which the child had absconded and was not amenable. One of the reasons I gave was that the child had to be available to instruct legal representatives. Article 44(7) provides that no court shall authorise a child to be kept in secure accommodation if the child is not legally represented, unless the child has refused or failed to apply for legal aid, having first been informed of his right to so apply. In addition regulation 9 of the same Regulations imposes a duty on the authority to notify parents and others when a child is kept in secure accommodation and it is the intention of the authority to apply for court authorisation for him to be kept in secure accommodation for a further period. Furthermore Rule 4.26 of the Family Proceedings Rules (Northern Ireland) 1996 requires the court to arrange, if practicable, for copies of all written reports to be made available before the hearing to, inter alia, the child, unless the court directs otherwise. A similar provision appears in Rule 26 of the Magistrates Courts (Children (Northern Ireland) Order 1995) Rules (Northern Ireland) 1996. Thus it is envisaged that the child will be present.

In Re AS(Secure Accommodation Order) 1999 1 FLR 103 an appeal against the making of a secure accommodation order was allowed because, inter alia, the child was not notified of the proceedings and was thereby unable to give instructions to his legal representatives. Bracewell J. said that it was implicit in Section 25(6) of the Children Act ( Article 44(7) of the Children Order ) that legal representation, in order to be effective, must involve the taking of instructions.

Mr Lowry submitted that the factual situation in the instant case distinguished it from Re AK. This was not a first application, but a fourth application and that the circumstances had not changed since the clear findings of fact made by Gillen J on 22 February 2001, which demonstrated that the criteria for a secure accommodation order were present. D was present on that occasion as were his legal representatives and the Guardian ad Litem. The factual situation was the same now as then, if not worse. The number of places in Lakewood Centre (used for secure accommodation) were limited and if an order were not made, D would lose his accommodation. The social worker in charge of the case and the Guardian ad Litem who supported the Trust's application were anxious that D should not lose his place. The Guardian ad Litem was of the opinion that a secure accommodation order was necessary to enable an effective exit strategy to be operated. Mr Lowry submitted that these circumstances were exceptional.

It is clear that the legislation envisages a child being present and involved in the legal process in an application for a secure accommodation order. Can this court proceed on the findings made at the earlier hearing? Are the circumstances so exceptional as to justify an application being made in D's absence? I do not think the court can proceed on the earlier findings. Each application has to be treated separately. There is nothing in the legislation to suggest otherwise. When an application for a further period of authorisation is made, the court will require to consider whether, at that time, the criteria have been met. Article 44(4) requires a court hearing an application to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case. Thus each application requires to be considered afresh and the authority cannot rely on past findings only. In any event the circumstances relating to the child may have changed, particularly where the child has absconded and has not been in touch with the relevant authorities. Article 6 of the European Convention on Human Rights is also relevant. Article 6 states –

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by and independent and impartial tribunal established by law."

To proceed in the absence of D, even though he has legal representation, does not provide him with a fair hearing. He is entitled to be present, to hear what is said and have access to the written reports. This is a civil and not a criminal matter. Nonetheless, it does involve the child's liberty and requires close scrutiny and a proper procedure.

Article 5 of the European Convention on Human Rights states -

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty in the following cases and in accordance with a procedure prescribed by law:

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority."

To proceed in D's absence, exceptional circumstances apart, would not be in accordance with the procedure prescribed by Article 44 and the Regulations made thereunder. In addition it might create more difficulties than it might solve. A secure accommodation order runs from the date on which it is made. If an order was made for two months and D was not recovered for three months the order would have expired by the time he was apprehended and a fresh application would have to be mounted. If an order was made for several months, D might not be recovered until after the time for appeal had expired. Thus he would be denied the opportunity to challenge the order on appeal, which he is entitled to do. Furthermore if an order was made in his absence there may be some factor unknown to the court which may render a secure accommodation order inappropriate for the child at that particular time. While there are opportunities for review of the order after it is made, that only arises after a period of time specified in the Regulations. It matters not that he consented to the first interim order or that he neither consented nor objected to the third order.

Are the circumstances relating to D exceptional, in particular, the fact that if an order is not made he will lose his place in Lakewood Centre? I do not think they are so exceptional as to justify the making of a secure accommodation order in his absence. I do not think it would be correct to make an order for the reason that he would lose his place in secure accommodation if an order was not made. The relevant criteria are set out in Article 44 and are limited to absconding and the risk of significant harm and the likelihood of injury to himself and others. Therefore the application for a secure accommodation order is adjourned generally, with liberty to apply.

The limited number of secure accommodation places that are available in Northern Ireland creates a serious and difficult problem for the authorities. It is clear that there are many more children with behavioural problems who require secure accommodation, than there are places available. Article 44 requires accommodation to be available for the purpose of restricting the liberty of children where the absconding or injury criteria are satisfied. Until recently there were only 8 such places in Northern Ireland. This has now been increased to fifteen places, but this number is still too few. I have referred to this problem in other cases. In addition, the Children Order Advisory Committee has also commented on this failure to provide the accommodation contemplated by legislation that came into effect as long ago as 4 November 1996. This situation requires to be remedied without delay.