Secure Accommodation and Deprivation of Liberty Cases

Hello. Welcome, everybody Mining softer, Mahmoud on. I'm a solicitor and a lecturer today that I'm going to be speaking to you about at the area surrounding secure accommodation applications within Children Proceedings on also harness links in with the concept of deprivation of liberty or so relating to Children. So this Abiteye session being recorded food. So with this session and I'll be considering, like, say, firstly applications for secure accommodation, I look at what the's are. They work on somebody really key aspect surrounding secure accommodation. Applications on then are also linked. Listen with someone a developing case law, particularly surrounding a deprivation of liberty applications. And this is an area which, in my view, many Children solicitors are sometimes unaware off or not very clear about their from hoping to trying cover somebody's elements with you throughout the course. Off this bite sides session today, right? So let's don't start with secure accommodation out. This would be where let's say, were involved in matters relating to, say, public Children or proceedings. So you've got an older child, say, a 14 15 year old, for example, on Let's Say this child is his son has been showing signs of maybe self harming, maybe issues over being a risk to others, maybe child sexual exploitation. For example. The child has been sexually exploited, for example, maybe a child like, say, whose self harming on that This is where the local thought he may. They need to consider either as a freestanding application or indeed, alongside Cape Ceilings to pursue a secure accommodation application on behalf that child. Now, this is where in England such an application would be pursued pursuant to Section 25 subsection one of the Children Act 1989 Those of you practicing in Wales. This would be under Section 11 night off the Welsh Act, which is the 2014 Wales A while being got which relate specifically to the position with secure accommodation. Having said that, if you're in Wales, for example, and you're looking to place the child in England in one of the units here, then the application would also be made in under the Welsh Act under Section 119 and also under Section 25. Similarly, if you're based in England and you wish to place a child in a English secure accommodation unit, all in in the Welsh unit, Then your application would be made both in the section 25 of the Children Action, also the World 2014 act under Section 11 nights. He conceded the overlap and into relationship there. Now if we then look at Section 25 which which is Ford intents and purposes identical to the test in Wales at Thea, application is such that there are two alternative limbs on that is one has to show that the child has got a history of absconding and would like to injure themselves or if the child is kept in any other accommodation and like to injure themselves. Authors. And this is what therefore where one is to establish that there is a history of absconding can when the child like that doesn't Sunday doing the injure themselves. What may be the case that the local thought had taken the view touch whatever unit we have already placed a child in, or wherever we are likely to place a child there like to injure themselves or others not. There is this provision under the Children Secure Accommodation Regulations of 1991 Regulation 10 which allows the authority to keep a child in a secure accommodation unit for up to 72 hours without the need for court authority. This is where, let's say, the child is in a in a Children's home, for example, Andi local authority interview that they do need to secure discharge for fear that by not doing sold, a child will continue to be at risk to themselves on D to others. If if the child was there notified with the application for secured and the May will be arrested, the child may abscond from the unit. So this is really the regulation at 10 comes into play where it is possible for the or thought if they are so satisfied that the criteria are met for purposes of Section 25 they contend, exercise their discretion on direct 10 to secure the child for the purposes of up to 72 hours. But then, if they wish to keep the child and secure beyond that period of time, they would need a court authority, and hence the application of the Section 25 would need to have been made on then adjudicated on the note that the criterion to Section 25 alternatives. So the court does not need to be satisfied on both limbs as long as one of them are met. And if the order if either of Muslims are made after, of course the court were then made the order, not the age of a child is important so that if the child is under 13 years of age than permission of the secretary of state is acquired before in order can be made, it is pissing into regulation. Four. Off the Children Secure Accommodation Regulations of 1991 case. Alas, if the child is under 13 years of age, permission would be required in that regard. In so far as the procedure is concerned, the application were made on form. See one under supplement is the form C 20. OK, but if the child's, say, a ward of court, then the application were made through form C 66 where one is then invoking seeking to invoke the court's permission to used inherent jurisdiction route and normally days notice would be expected to be given for secure accommodation application, but it is possible to in fact, a bridge time for service to therefore reduce that period. If necessary. And also what you find with secure accommodation is there will be an expectation to have a secure criteria of your view so that once the child is placed, a secure unit there has to be reviewed with the purpose of that to see whether the child continues to meet the criteria for securing. If the child doesn't then your thought, he would not be in a position to be able to keep the child insecurity longer. Just a purpose off that now somebody. Other aspects when you're dealing with secure cases is that it's very important to ensure that if you're for local thought, that Central dates are certainly Mattis off. Example. Planning meetings away of the dates of secure crackly reviews, for example, so that there is clarity is to watch education plan is what assessments need to be done to times cars. For these, those of you acting for the child in the circumstances, it's very important for you to ensure that you can provide legal advice to child. The child is untouched. A separate legal representation in disregard on the child is entitled to be represented. The garden, of course, will play very significant rolling so far's assisting with really diffuse on the the way in which the child's needs need to be met. Sometimes a child will be able to express their views, uh, directly with with chanceless for in those circumstances. Now, this case of Ri A is very useful. This was a case handed down in 2015 involving a 13 year old child on one of the things that the court may emphasize here, this is Mr Justice Bold E was that it is possible for a general secure accommodation. Aled two b grown to Daddy's iftar Local authority haven't been able to identify particular unit at that incidence and time. Then, if it is possible for the court to nontheless dealmaking order under Section 25 source today neighborhood or thought to have the benefit of the order so that if and when a unit does become available, they wouldn't be able to place a child in that secure unit in all circumstances and therefore it is possible for that to be done on therefore, one of the things which this case highlights is it is not a requirement for a local thought to have had already identified a placement for the child in a secure unit before the secure accommodation order is made. So again, a very important point that was being raised in that regard. Now this is where there were so amendments that were brought about as a result would be Children and social work at 2017. This that got royal assent on the 27th of April last year, and in particular for Pepsis, say there is section 10 off this act, which is about placing Children secure accommodation elsewhere in Great Britain now. This was particularly brought in as a result of the difficulties which were being experienced in English and Welsh local authorities taking to place Children insecure accommodation units in Scotland because, as it happened, some of the case law was making very clear that it wouldn't be possible for on English or Welsh court exercising day jurisdiction to grant an order under the respective acts in England Wells for that water than to be applicable and binding in the Scottish courts on even involved in having jurisdiction here in England, Wales wouldn't suffice. Instead, the application would after made be made directly to the Scottish court. But now section 10 has specifically provided for the fact that this is into shed. You want to the Children social work at 2017 which has amended legislation to the effect that local authorities in England and Wales are able to place Children a secure accommodation in Scotland and therefore, in that clarifies position for placement by authorities in Scotland. Off Children secure accommodation in that England well, so again very, very important to bear that in mind. Now that's where I want them also to spend some time looking, tapped into relationship between secure accommodation and also, when it comes to deprivation off Liberty Casey's. And this is where the case of London both souther can f is particularly relevant is 2000 and 17 case by handed down by Mr Justice Haydn. And this is a case involving a 14 year old child who were subject to a four care order. Now the court did have the benefit of a report from a child and adolescent psychiatrist, and this child was identified as having a complex at K history here at a degree of emotional physical neglect as well as a child being under considerable stress at the child of black secluded from school, he had special educational provision, and he had a heightened risk of future mental health difficulties, including developing a personality disorder. Initially, the plan was to place his child in the residential unit on. The problem was that when he was placed in such a unit, in fact, ID abscond from the unit within a few days, and that's when there was a recovery order obtained. But the local authorities subsequently then changed their plan so that one day in fact, instead pursued a a secure accommodation order. The difficulty was have that even know the local authority pursued on obtained a secure accommodation order. It simply wasn't a unit available to be able to accommodate the child, and therefore the court was really been asked in Toon's dead Make a provision relating to deprivation off liberty. Now, one of the key points that this case is highlighted is that when it comes to secure accommodation, applications on the Section 25 to restrict liberties will be really a profit on really. His Lordship was saying that many judges due regard secure accommodation applications as a last resort, but here, where a unit could not be identified, and this is where the local thought. He also lodged an application for deprivation of liberty sauce to that enabled a child to be placed in an alternative unit where, although he wouldn't be locked in, sold speak. Instead, there would be a certain degree off supervision off him. So they put that in itself. Would a mantra, deprivation of liberty and different doll ordered deprivation of liberty order authorized by the court would enable the court outside of local thought it to be up to be authorized to deprive the child of his liberty for his benefit and that of the protection of benefit off others. One of the issues the court, however, did highlight. Here is the fact that because there were so few secure units that were made available, that it was regrettable that the court had to once again a journal matters Austin, able and quieted made us to availability of units off which there were so few available. Now, the other case of Reedy a child is 2017 quarter appeal cases, also very important on. But this really ask the question as to whether a parent of a child can consent to their deprivation of the child is 16 or 17 years old. Give some plants, that is, yes, state Tana's result off the decision in this case off Reedy. And this was an appeal following the decision by the High Court Yard sitting indeed, court off protection of persons related to a child who was 16 years of age on. But this is where the core satisfied that a deprivation of liberty with the meaning of Article five had to be distinguished from restriction of liberty. Governed by Article two of political number four, this is a case where the child, who was 16 had been diagnosed with attention deficit hyperactivity disorder. I e. A d H. D had as Burgess syndrome, also Tourette's syndrome. Andi was also diagnosed with Mark learning disability. Now the child was under constant supervision on a regime at the hospital where he was was such that the external unit extended daughter unit was locked. He was checked on every half now by staff on the school was intercourse to the unit on that. Therefore, he was under constant supervision and control and therefore it was certainly agreed that thing was a deprivation. And if the question Waas Cody's parents who had burnt responsibility for him, consent to his deprivation? Or was it the case that the court needed to be asked to authorize this very mind at the child himself? Was not Gillick competent? So he didn't have capacity himself to be up to consent to his own confinement? Well, the court getting fact expected, local thought it lodged an application through the quarter protection for authority to deprive the child off his liberty. And it was decided by the high court. In fact, the parents consent a child, Charles Deprivation of Liberty by where them consenting under Section 20 was not a consent, which would be a sufficient in the second stances. And really the only way that D Charles Deprivation could be sanctioned by only mind his age was 16 was not food parental consent, but instead, by way of an order from the court protection different to be court sanctioned. And that's really what led to the application being appealed on. In fact, on appeal, the court appeal reversed a decision. They said that's after the lower court was was wrong on that in not, firstly, the approach and really requiring a norther. Formally quarter protection was such that this was not consistent. Therefore, with Gillick principle, the Gillick. As you know, principle is such that the exercise print responsibility comes to an end essentially upon a child. Attaining Gillick capacity should. Therefore, if a child gets to a point off being able consent themselves, then of course, this is where parental responsibility, insofar as many decisions, then it's not one that really can be exercised against what they're what Child is is seeking. And secondly, none of the statue provision of published a lower court relied upon bed. I'd especially impliedly upon the matter in hand, insofar as the position of parent responsibility, sort of court very much took the view that the Mental Capacity Act of 2005 does not make specific provision relation to Children aged 16 or 17. But there was nothing in the act which really provided for the fact that those excise and print responsibility were barred from consenting to her child being be part of their liberty and therefore the facts. The court took the view that with a child off 16 or 17 years of age, you know, have capacity. It was perfectly plausible. One acceptable under appropriate for their parents would print responsibility to consent to their deprivation of liberty in the circumstances. Now, this is where the other case of a F is very important. This was a 2000 and 18 case of re F Children. This is a 2018 high court case and dump I the presence of the family division. Sir James Mumby. One of the key aspects of this case is the president has really looked at the interface between Cape Ceilings on also Article five of European Convention of Human Rights, particularly with when one is looking at deprivation of liberty. Now the child here I was a child who was subject to care, perceiving so here you had. In fact, number of Children who were all aged between 11 to 16 under was subject to care. Waters on the court said that were child is subject to care order, whether it's an interim or final order. Neither the local thought annoy India apparent connects eyes their parent responsibility so as to provide a valid consent for the purposes of deprivation. The court also took the view that it has to be clarity and understanding between deprivation of liberty and restriction off movement on the court said that a person may be under constant supervision and control, but it's still free to leave. But this doesn't mean that they are not deprived of their liberty. Similarly, it is possible to imagine situations in which a person is not free to leave. But he's under such continues Supervision on D Day may not in that situation be deprived of their liberty, so it's not so much whether you're locked in or not. But it's more about radio Your deprivation, so far as really, whether you've been constantly supervised, attended to the restriction of liberty have is different. This is where the president gave examples of Children who were grounded, for example, put to bed, for example, because there be naughty in that kind of situation. The family home, that's restriction and we want that wouldn't be seen as a deprivation off liberty. So the court did say that you can be deprived of the liberty even if you're not physically locked in, and similarly, if you are locked in, that doesn't necessarily mean that you are deprived off your liberty. Now, if there is a secure accommodation order in place, then ah, high court order or 1/4 protection order wouldn't be required to sanction confinement because the secure accommodation order does that for you. But if not, if you're got, say, a child under 16 who is subject to Cape Ceilings care order intraday ward off example. The that situation, um it may well be necessary then to pursue a through the inherent jurisdiction route. If t child is one who subject to proceedings for them to be deprived of their liberty in those circumstances and if so, then the court really, in this case has set out some very useful practice points since Fars in showing that those such applications are being made. So those application made fight inherent jurisdiction of the high court route on Thea. Application, therefore does need to be made. There is no need for the court to make in order specifically authorizing each element of the circumstances, constitute a confinement instead of sufficient to set out the fact that do you order authorizing Charles deprivation of liberty and the particular placement, for example on. But the hearing should be at such that should be heard by Webvan or hearing in a family division. Old obviously could be before Section nine judge on, but the child must be made a part of our seniors and other guardian if it'll possible. The Guardian, who was also acting for the garden in the Cape of acting for a child in the care proceedings on the evidence and support, should address really the nature of the regime, which it is proposed, that the child will be identifying particular features, which would involve confinement on the circumstances which leading that y disease necessary as whether specifically setting out the views of the child's parents on also the views of the independent being off. So the most recent care plan, or sort of minutes off the most recent looked after Children's review. The evidence has said Charles competency should also be made available in relation to the confinement itself. On that, the president has also said that if it is the case that the local thought your lodging cape ceilings, but they also needed to go for the confinement by way of deprivation, then when they lodged a application for part for order filling in the form Seaborne 100 a they should identify and that specifically that the case needs to be allocated to a judge who is going to therefore in a position to be able to hear the deprivation of liberty application the cape seems, will remain in the family court on must've transferred to the high court. But the actual, uh, deprivation would would need to be heard by a judge off the high court, and therefore, the Section I second judge could be hearing their application ALS as well, if needs be, there's also a need for review. On generally, a review should take place at least once every 12 months, although it can be brought back before the courts sooner if necessary. So conceited. It's a very useful case this because it does actually highlight some of the key aspects about the inter relationship between Kip Ceilings and also when one is looking at deprivations so you can see today in this bites high session. What I've done is gone through with you some of the key aspect surrounding versatile former secure accommodation applications. What the's are hardly operate on, then how do Lincoln with the position with Kip Ceilings and also with deprivation of liberty applications are also Thank you very much for listening. I hope it has been used for fourth today. Onda speaking. Next time. Thanks very much. Bye for now.