| NIQB 34||Ref:||KEE10614|
|Judgment: approved by the Court for handing down||Delivered:||10/4/2018|
|(subject to editorial corrections)*|
This case is anonymised by agreement of all parties as it involves issues relating to children. Nothing should be published which would identify the children or their families.
(i) In the care of a Health and Social Care Trust by virtue of a care order; or
(ii) A child who is provided with accommodation by the authority for a continuous period of more than 24 hours.
(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.
(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 from providing him with suitable accommodation or care?
“"….imposed on the relevant authority to provide the assessed benefit within a reasonable time. It is trite to add that the measurement of this period will inevitably vary, tailored to its particular context.”"
“"Thus where it appears to the local authority that there is a child in need, for example, as the result of there being no person who has parental responsibility, the local authority has an absolute obligation to provide some accommodation for that child. Section 20 says nothing about the type of accommodation that must be provided; that is left to the discretion of the local authority.”"
“"The 2006 Code spells out some points in more detail. It emphasises that 16 and 17 year olds who are homeless and estranged from their family will be particularly vulnerable and in need of support (para 12.12); that housing solutions are likely to be unsuccessful if the necessary support is not provided, so close liaison with social services and other support agencies will be essential (para 12.13) and that bed and breakfast accommodation is unlikely to be suitable for 16 and 17 year olds who are in need of support (para 12.14). This case is good illustration of the wisdom of this guidance. One of the reasons that N was evicted from the hostel for 16 and 17 year olds in October 2005 was her failure to co-operate with her support worker.”"
“"This case is about the respective responsibilities of local authority children’'s and housing services towards children aged 16 and 17 who are unable to live with their families. In the end, it comes down to a short point of construction: what is meant by a child who is looked after by a local authority is defined in Section 22(1) of the Children Act 1989 but the clear intention of the legislation is that these children need more than a roof over their heads and that local children’'s services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities.”"
- Article 5 of the European Convention on Human Rights (“"the ECHR”") – the right to liberty and security.
- Article 37 of the United Nations Convention on the Rights of the Child (“"the UNCRC”") – Detention of a child “"shall be used only as a measure of last resort and for the shortest appropriate period of time”".
- Rule 13 of the Beijing Rules – “"Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care placement within a family or in the educational setting at home”".
- Rule 17 of the Havana Rules – “"Detention before trial shall be avoided to the extent possible and limited to exceptional circumstances. Therefore, all efforts shall be made to apply alternative measures.”"
“"12(1) Where a court remands or commits for trial a child charged with an offence, it shall release him on bail unless -
(a) the court considers that to protect the public it is necessary to remand him in custody
(b) paragraph 2 or 3 applies
(2) This paragraph applies where the offence charged-
(a) is a violent or sexual offence; or
(b) is one where in the case of an adult similarly charged he would be liable on conviction on indictment to imprisonment for 14 years or more.”"
“"The guidance has as its primary aim the delineation of the respective responsibilities of the NIHE and the Trust when working with young people in the provision of housing and support to them. The guidance sets out categories of young people most directly relevant in these applications and considers at Appendix 2 exit pathways for young people aged 16/17 in Woodlands Juvenile Justice Centre who are at risk of/face homelessness on discharge.”"
(i) At page 3 of the correspondence (this was a letter sent by the service manager dated February 2018) on page 1 of the checklist – use of B&B or hotel, for 16-17 year olds should only be used as a last resort and for the shortest possible time.
(ii) Page 1 of the checklist – such arrangements are reported by Trusts to arise primarily where no alternative suitable placement is available and/or where all other suitable options have been exhausted.
(iii) Page 1 of the checklist – that the young person is provided with a high level of support, the landlord is assured of Trust input and that immediate efforts are directed towards identifying and securing a more suitable arrangement.
is made to the fact that the respondent Trusts acknowledge:
(a) Accommodation in a bed and breakfast or a hotel is the least appropriate arrangement for a young person.
(b) Accommodating a young person in a bed and breakfast is better managed when a small number of providers are used and strong working and supportive relationships are built up.
(c) Decisions to accommodate a young person in this type of accommodation are made at senior level and notification provided to the Health and Social Care Board by the relevant head of service.
I was also provided with some forms entitled “"Notification of the Placement of any 16 or 17 year old person in an unregulated placement.”"
“"No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”"
“"The Commissioner notes with concern that there appears to be a disproportionally high representation of children on remand also being children in care. The proportion of young people involved with custodial services in Northern Ireland that were looked after increased to 39% in 2016/17 from 29% in 2015/16 (Youth Justice Agency Annual Workload Statistics 2016/2017).”"
“"The HSCB will give the issues raised in the above judicial review and by NICCY at the meeting a particular focus. The Children Services Improvement Board will have a discussion regarding the sharing of this judgment and the outworkings and changes to practice to ensure that the learning is disseminated across all Health and Social Care Trusts and to relevant staff – the HSCB will look at relevant statistics to identify whether a relevant trend exists regarding the placement of children and young people in the Juvenile Justice Centre – HSCB to look at what progress has been made in the joint work with the Department of Justice – HSCB undertook to update NICCY in respect of the development of work in this area.”"
“"Courts through a series judgments, including but not limited to those cited throughout this affidavit, have made it clear that Health and Social Care Trusts cannot bypass long-term duties owed to homeless 16 and 17 year olds under the leaving and aftercare system by calling accommodation which should be provided under Article 21 as Article 18 accommodation which prevents the child becoming a looked after child. The needs of the homeless young people that CLC has worked with are so diverse that these young people require more than mere accommodation; they require ongoing supports for their mental health, to access education and to acquire life skills. Moving into adulthood they require the support of the full leaving and aftercare regime to ensure successful outcomes.”"
“"The use of hotel and B & B accommodation for OC has only ever been intended as an emergency or short term measure while all efforts were being made to identify more appropriate and hopefully longer term accommodation for him. This has always been the aim of the Trust. The risks, however, presented by OC and his behaviour have significantly limited the options available for him.”"
At paragraph 24 he states:
“"It is never the Trusts aim to place a young person such as OC in hotel or B & B type accommodation. This is an extremely rare occurrence and records available show that only 5 people have been accommodated for periods in this type of accommodation since May 2017.”"
At paragraph 30 he concludes by stating that:
“"This is only used in exceptional circumstances and for as short a period as possible. In all cases there will be a framework of support around that placement and young person to ensure that their assessed needs are met. At the same time the Trust continues to make all necessary efforts to obtain a more stable and long term placement for the young person and works actively to ensure this is achieved as swiftly as possible.”"
“"While accepting that the provision of B&B accommodation is far from ideal for a young person like LH, it was the Trust’'s assessment that with an appropriate package of support for LH in the community, the accommodation proposed could meet her needs in the short term.”"
A comprehensive package of support is also set out in the affidavit at paragraph 36 from i to xv.
(i) When there is an issue with a child in need, a looked after child or a child subject to a care order, social services should directly input into the bail hearing. I have to say that in my experience this has become an ingrained practice which is to be welcomed in that social services regularly attend at court and often give very valuable evidence about placement issues.
(ii) A reviewing mechanism is available to the bail court which may be particularly important where short term accommodation is provided.
(iii) In my view consideration should be given to having “"one-stop”" for these types of cases where possible. This chimes with the sentiments expressed by Gillen LJ in the Civil and Family Justice Review. If there is a judicial review it should be heard alongside the bail case. It may also be possible to combine a related family case.
- The Trust duty under Article 21 is absolute.
- Accommodation must be provided within a reasonable time.
- That will depend on the facts of each case but there is an obvious urgency when a juvenile’'s liberty is at issue.
- The accommodation should be suitable.
- What is suitable will depend on the facts of each case.
- Bed and breakfast /hotel accommodation must only be used in exceptional circumstances, for the shortest possible period and accompanied by supports and services.
- There must be notification to the health board in accordance with the policy.
- Social services will be expected to vouch all attempts to find suitable accommodation to a court and to set out the exact nature of temporary accommodation with an emphasis on supports and services.