A practical course which considers the use of secure accommodation in children law cases and how this links in with Deprivation Cases.
Hello. Welcome. Everybody very pleased to welcome you to today's session through data law. My name. So after Mahmoud on my solicitor on also Electra on today, I'm going to be speaking to you in the first session on secure accommodation on deprivation cases in Children matters. This is session one off to whereby I'm going to be taking you through some of the key developments in this particular field off Children on family law. So we'll be looking at secure accommodation orders in particular on the first part on session one today. And they'll be making a general start on deprivation of liberty cases on Then. We're looking at deprivation of liberty Cases in Children matters in more detail on the second session. So we're gonna be looking at somebody. Statue provisions will be looking at some of the case law in this field. Andi, When I move on to the deprivation aspect, we look at howdy inherent jurisdiction concept of works. So for today's part, and I'll be looking specifically a secure accommodation. Some of the key statutory provisions statute primary and secondary legislation on some of the developing case law on this is going to be particularly relevant. For those of you who are practitioners in family, on charge related matters, we'll turn. We're looking at this course as of September 2020 right? So I want to start then with the position with secure accommodation. Now, when would this be relevant? Well, this is whereby you could well have situations whereby you either in care proceedings or you may not be, could be freestanding. Where you've got concerns that are being raised in so far as Children are concerned, Andi were by. There are concerns that they may be absconding on when they do abscond, to put themselves at risk or whatever, or wherever they are placed. They are causing themselves harm or maybe somebody else. So some of the cases that I've dealt with as a family practitioner insecure cases has been where Children have been self harming. For example, where have harmed as a result, often off them. Having had bean subject to abuse in the past, and this is sometimes you'll find, is a coping mechanism utilized by the child. It could be where the child is subject to child sexual exploitation that is then leading to child. Maybe I'm scanning from the unit they are. Then they are being subjected to CSC. Child sexual exploitation is where the child may be a risk to others. So wherever you place the child, whichever placement they placed in there causing themselves or others harm in that regards that could even be used in that situation often, but not always. Some of the cases involving secure may involve older Children, but not always. UH, there's been cases where Children his youngest 10, for example, have been made subject to secure accommodation orders. Three. Oldest stage. The operator, I should say, at which a child can be made subject to a secure accommodation. Orders the age off 17. Okay, Andi secure accommodation could be used alongside care proceedings, so it could be very much freestanding. Application. A swell on what you find is often various agencies will be involved in secure applications. You'll have social services departments. You have education, you have health. And sometimes all three departments agencies will work together to try and see what's best for the child concerned. Okay, so de criteria, which will look at in more detail throughout the course for purposes off applications for secure in England or where one is looking to place a child in a secure accommodation unit in England. The application would be under Section 25 off the Children Act, and this is where one would have to demonstrate that either of the two auto into limbs are met. Either that the child has got a history off absconding, and if they do absconded, like to injure themselves. Or if the child is kept in any other accommodation, the child is likely to injure themselves or others. So it could be either of these limbs, which is then sort on. This is where, by so far, is the welfare checklist is concerned. You got cases like Reem, for example, in 1995 case, which emphasizes that the welfare checklist nor the principle, although they are so the relevant in many applications related to Children, they are not, uh, paramount in this regard, so they are relevant. But they're not going to be the paramount consideration in that regard, because you may find that a child needs to be made subject to secure accommodation or not so much for their benefit or for their protection. We need arguably for the protection off other person So that's where that may well be. Be relevant now. Linked with that, we need to also think about the role of the Guardian, as you know the Guardian in Cape Ceilings. Pursuant to Section 41 of the Children of, for example, we'll be playing a very pivotal role in so far as safeguarding on promoting the child's welfare on. In that regard, the guardian place a very significant role. So you may have a case where if a local thought it therefore apply for a secure accommodation order. Andi, they are ready to seek and find Lord of the Guardian may suggest Well, actually, I only agreed to an interim order be made on that would enable me than to carry out my enquiries in that regard, um, or so before the final determination is done. The Guardian's role, as you know, is crucial to be the interface between the conflicting rights and powers off the court of the local authority and of course, parents. In that situation, they are there to save God on to promote the chance of welfare. Okay, on the Children, say is the Charles Lister, as you know, will be taking instructions from the Children's guardian Andi. Those will then be put to the court, but insecure accommodation cases That may continue to be the case, but you may also find that there is a need for separate representation. You might have an older child who has conflicted with what the Guardian is seeking or suggesting. And if that child is sufficiently competent, Gillick competent and there may be in a position to them be able to give instructions directly to the lawyer. So that's where that comes in. OK, Andi, uh, this is where we do have to ask ourselves whether or not interim orders should. In fact, you could be made in these proceedings. And this is where you got cases such as re be this case here, for example, on Birmingham City Council and M on both of these cases did emphasize that if the criterion the section 25 off the Children are too met for pets of secure, then really the the order should be made on Bill be to complete in the proceedings. But if there is a need to maybe look to see what further work needs to be done to look up, maybe what the exit plan would be once a charge is discharged from secure, for example. And it may be a need for there to be an interim order, uh, with a view to than returning back to court, but a desire to keep the guardian involved in the proceedings eyes Not a reason in itself to make an interim order. Okay, Now, the other thing to bear in mind with these orders is that if either the limbs are met, I either to cry here in the section 25 subsection one are met, then the court can. Then, of course, Cohen had made the order. So either the limbs need to be met. Not both of them. Okay, this was emphasizes case off three D secure accommodation or the number one. Okay, so once on, this goes on to say that once the criteria have been met, either the limbs that I mentioned than section 25 subsection four off the Children Act specifies that the court shall make the order. So if either of the limbs of matters I mentioned earlier the court shall then go ahead on do make the order. Now there's then the provisions in relation to the position swanning at the age of the child. Okay, this is where by when we look at the age, uh, like I said, there is an upper age off 17 for secure to be made on in terms off. Ah, younger age. If the child is under 13 years of age, then the permission of the Secretary of state is required before in order to be made. So that's pursuant to regulation. Four off the Children. Secure accommodation. Regs off. 1991. Okay, so if you're under 13, you're going to need the approval permission of the Secretary of State. Okay, If the charges over 16 Okay, so therefore over 60. Meaning the 17 on If they accommodated in the section 20 subsection five of the Children Act, which effectively is in a community home, then it's not possible to commence an application for secure accommodation in those circumstances. Okay, But linked with that, if the application had been commenced before the child turned 16, then it can continue beyond the birthday for that child. And that was made clear in the case off G this 2000 case. Okay, so you can see the age variable so particularly if the child is under 16. Bear in mind the need for the secretary of state. There is the maximum age of 16 17. Sorry on. If they are over 16 and therefore the 17, if they are accommodation in the 22 subsection five, it wouldn't be possible to them make them subject to the secure order. Okay, there's also what's known as a 72 hour provisions. So let's give you this example. Let's say you've got a case involving a child who is in the Children's home unless say, they are absconding. And when they do abscond, they get involved in, say, child sexual exploitation. They are being exploited in that manner, or there may be other forms of harm that they have been subjected to. In a situation like this, the local authority may then take the view that there is need for a secure accommodation application to be sort. The problem is, of course, ordinarily you need to be given notice to the child considers to the child concerned, and that notice ordinarily needs to be a day's notice unless the court bridges time for service. Now the problem is, if you were to give that child noticed they may have gone again. They may think, Well, I've been given notice off an application for a secure order, but I don't want to be subjected to it so they may abscond again, and therefore, by giving a notice, it defeats the purpose off what one is trying to achieve. Okay, on this is where Regulation 10 comes into place. A regulation 10 of the Children's secure accommodation Regs of 91 does say that a child can be detained without the need for a court order for a period of up to 72 hours. So that could be where let's say you have got the child is in the Children's home. The absconding they are being, let's say, victims of child sexual exploitation if they want to return to the unit. If in this situation, then you've got them. A senior authorized manager at the local thought he authorizes the so called 72 are provisions that child could then we made subject to descend into our provision, which allows them to be subject to secure for that period of three days with a view to than enabling any application to be lodged thereafter for on order under section 25 of the Children Act. So basically that's 72 hours ties over that period of time. So that's what it's useful, all right. It's a very, very important. But of course, the senior manager needs to ensure that that is exercised appropriately in the circumstances. Now, if one is applying them for secure accommodation order under Section 25 or as we'll see later in Wales, Section 119 of the 2014 act, as we'll see later, then the paperwork that's completed his a form See one on the supplement, which the form C 20 so the other the forms that were filled. And if the Charlie Subject award of cord so they rewarded, then he would fill in the form c 66 okay on In terms of notice, Andi respondents, respondents are covered under rule 12.3 respondents are gonna be everybody who is believed to have parental responsibility for the child Under care order, A project of care would have been made everybody who have parental responsibility for the child okay, notice would all suddenly need to be certain those people with whom the child is living with at the point at which the application is made. In terms of the notice period, one day's notice is required. Okay, so this is pursuing too the family procedures off 2010 part 12 so or no days notice. However, the court is in a position to be able to a bridge time for service if needs me. So that is possible. In fact. And if you look at cases like greasy, secure accommodation, representation is 2001 case, for example, this does make it very clear that in appropriate cases, there may be a need to bridge time for service. So in that particular case, there was a care application large and was also secure Accommodation order application lodged. The local authority served the respondents with the care application but admitted to serve them with the secure accommodation order application. Both were gonna be heard caught on the same day because everybody was at court. The court felt well, we're going to put the secure application back to later on that afternoon, so that would enable time to enable them to discuss and consider the matter. So, in fact, the matter was still heard or beat the court did a bridge time for service to less than a day. Okay, so master the thinking behind that. Okay, Now you've then also got cases such as we w, for example, what? They emphasizes the need for the child to be represented him. So Section 25 subsection six of the Children Act does require a child to be represented at least to be given the opportunity to be representatives. They so wish. And if they refuse, then the application that can, of course, proceeding their absence. Okay, so we w, for example, secure accommodation. This case of 1994 suggests that the child child should ideally, uh, not be a court at all times, because potentially that could be harmful to them. Okay. But of course, this is where we do have to build in the child's right to, ah, fair trial. And if, of course, they seek to be a court, then of course, the Article six rights Do you need to be respected accordingly? Okay. In terms of length of water, if one does apply in this section 25 of the Children after Section 11 line of 2014 social services and Wales Well being act of 2014 and if one applies in the eyes of those in the maximum period that the order could be made for in the first instance is three months. So this is regulation 11 of the Children Secure comrades off 91. Okay, so that's initially for up to three months. But then, beyond that, you got regulation 12, for example, which off the secure accommodation regulations in 1991 which provides that beyond that, the child could then be made subject to secure for a period of up to six months at any one time. Okay, so you got finished or three months, and then six months thereafter in section 25 Subsection six of the Children Act is the point I made earlier about representation, right to legal advice or the court hearing. The application cannot make the order unless the child is legal represented, except where they've been informed of their right to legal advice on their refused to take up the opportunity. Okay, so that's where that comes in. Okay, so really, really important. Now, this is where you've also got the secure criteria review. So let's their charges made subject to a secure accommodation order. Okay on. Then there needs to be a review process deceived. They continue to meet the criteria to see whether they should remain insecure or otherwise. That's where this provision comes in. So therefore, you got the Children secure Com regulations in 1991. Regulation 15 on that places a duty upon the local authority in respect of a child who is Captain Secure Toe a point. At least three people, one of whom must not be a local authority employees to review the placement within a month on their after intervals not exceeding three months. That's the thinking behind that. Okay, so that's regulation 15, which, like so, places his duty Uh uh, Thio to appoint at least three people in those circumstances, one of whom must be independent. The purpose sort of review is to see whether or not the child continue to meet the criteria for security. They do not that ordinarily one should be looking for them than to be taken out of the that. That unit on DWI looked a case on that a bit later in particular. Now, practical issues, any relation to secure accommodation? Uh, these cases. There's a lot of issues that we need to bear in mind when you're planning and dealing with these. So, for example, when you're acting for a local authority, it's important to ensure that order necessary dates are booked in, for example, So what I mean by that are essential dates. So if there's a planning meeting making sure that date is booked and everybody's clear about it at the Secure Criteria Review meeting, what is that? Where is it? Location. Who is going to be attending? Who can? Making sure that that's put in place, obviously, dates for a review of the placement date for the next looked after Children's of you, for example. Okay, medical dates changing placement those matters on, then the position in relation to contact. So what is the position of contact is it's subject to review. So Wednesday review when they looked after Children's review, which will consider, amongst other matters, contact what's the position with the education plan for a child expert assessments. What's the time skills for that? How soon can they start what would be done on what's the position with funding on also times killers? Insofar as that consent Okay, so therefore, we're looking at that also. Okay, Now, when you are acting for the child, okay. Very important to make sure you, of course, advise the guardian on the various options and for all of us. Whether you're for local authority, with your child with you. For parents on extended family, we all need to keep up to date with the law. Of course. So the guardian make sure you advise appropriate the various options in particular. So if they support the order, what would that mean if they don't? What's the options discussion of intra mortars, as we discussed earlier. So should there be an interim order should to be a final order on then You also need to consider if your represented a child. Should a child be attending court with you, should they be attending? Is it better for them not to be there? Is it gonna be more emotionally difficult for them to be there? Is it better if they give instructions beforehand? If they are in the court building, but not in the courtroom? Would that be better for them? And of course, now, nowadays, because of the situation would cove it 19 Many hearings, of course, are remote. So therefore you need to have those discussions with the child as to whether they wish to Lincoln in that way on to log on on with the judge, wish for them to therefore being the hearing. In that way, would it be safe and appropriate for the child to be logged in that way? So there's all of those factors if we gotta build in and remember very, very important for the child to be given a voice. So if they feel they wish to speak toe judge directly, then of course, there are means and ways in which that could be done. Also, think about contact. What level of contact is appropriate for the child Andi could contact take place at court, for example, when a child attends for that hearing like, say, Wednesday next review meeting type. So when you're acting for parents in particular, make sure you can take into account then, uh, the fact that a lot of these concepts that we use will be very difficult for parents to understand. It'll be concepts that we may be familiar with and which I easy, easier, maybe first to understand and we used to it, but not necessarily for a parent. So with that in mind, bear in mind that you do need to therefore take into account the fact that try and explain to them in a easy to digest on understandable manner. Complex legal concepts are not easy. What do we mean by secure what is threshold when it comes to keep ceilings? What? So if you hearing was a secure creative, he wants the different types of orders. So all of those matters you do need to really emphasize. Make sure the parent is clear about what it means. What about public funding for parents were generally speaking, funding would often not be available for parents on persons with responsibility. Parental responsibility. In this case, the legal agency generally take the view that they could be, uh, support. I can you spare witnesses. So if they are supporting the local authority, there could be a witness for the local authority. And if they are supporting the child, not been subjected, secured. And of course, that could provide witness evidence there. So they may not necessarily have a standpoint which is independent of what one of the one of the other parties are providing also at court, practically kind of caught. Book a separate conference room for you, if possible. Is there any factual securities, The risks, a child of somebody else. So those factors need to be born in a swell Andi. Also, if the hearing is say in the morning, that's a 10 a.m. Is it safer to put it back to the afternoon? Because if the child has been transported from one part of the country to the other, for example, how easy is it gonna be for them to get to the court for 10 o'clock hearing, for example, like maybe better to put it back. So those kind of practical things you gotta bearing on also, is he a possibility of the chart having contact with the family members that day? So whilst they're at court, parents or their family members of there, could there be contact will be on a supervised basis, so see if that could be facilitated. And sometimes these applications will be heard, maybe on a weekend or bank holiday. So will you be available to do those hearings and therefore you gotta build that in a swell Okay, I'll sapir that in mind. Right? Let's then look at somebody developing case law than insofar as secure accommodation orders are concerned. And one of the cases a few years ago was a case off w uh, a child. This was a 2016 decision. Okay? And it's related to a 17 year old child who was made subject to a secure accommodation order. Pursuit Section 25 of the Children act okay on. From the age of 15, the child was placed by the local authority under section 20. Okay, she was beyond parental control. So she was 17, which is, as you know, the the operation at which there could be made subject to a secure accommodation order. Okay. And the local thought he lodged a secure accommodation application. She had been the victim of child sexual exploitation. Now she did abscond from various residential units under the secure order, was in fact, made. But she appealed. She appealed, and she appealed on two grants. One, she said that she was 17 and she said, because of her age, she said the court lacked the jurisdiction to make a subject to a secure accommodation order without her consent. She said that the court needed a consent, and if not, she could effectively discharge itself so the order could not remain. And secondly, she said, she hadn't even absconded corn to a definition under Section 25 off the Children Act. Okay, so, firstly, let's look the position with with her age on. This is where if we look at a position in in England to start off with, then in England, you've got to section 20 subsection three of the Children and that that provides that every local authority shall provide accommodation in their area for that child who's in need, who has reached the age of 16 on whose welfare will be seriously prejudiced if they do not provide them with accommodation. Now that provision under section 20 subsection three, does not require the child's consent, and in fact, the child cannot object to that, either. Okay, Jordan can under section 20 subsection 11, for example, he wants to turn 16, object to them being accommodated. But section 20 subsection three is the one exception to that. Have you said that you Then you gotta read Section 20 subsection three in light with some of the other provisions. So you got section 20 subsection seven, for example, which provides that local authority may not provide accommodation under this section for the child off a person who has parental responsibility for a child. And he was able and willing to look after a child if they arrange accommodation for themselves and if they object. So even if the local authority is saying we are using section 20 subsection three to accommodate the child because by not doing so, he's of her welfare will be seriously prejudiced. The parent with PR can say, Well, I don't care. I'm using my section 20 subsection seven to object to you doing so. And therefore the local authority cannot continue to accommodate the child. Yeah, okay, so you can see 20. Subsection three is subject to 20 subsection seven not being affected, applied and used. So it was important that because here, if she was 20 if she was 17, which she was, as long as her parents with PR did not object which on the facts they did not. Then they could use section 20 subsection three to accommodate er, which then gives you the platform to then go on lodge a secure application on because, as we said earlier, Section 25 in Section 119 respectively, require the chart to be looked after. First outside the subject. A nice your care order or section 20 or Section 119 Section 76 in in Wales. Off these 2014 act like case on that bed that that was resolved. And therefore the fact she was 17 didn't prevent her from being discharged, so I didn't allow it to be able to be discharged. But in the other argument, the charge around when was she said she wasn't absconding. And as far as this is concerned, the court did say that the charter no absconded, but she had been absent just overnight on. This is where the court looked at what the judge at first instance said, who said that in determining whether she's absconded, Uh, it needs to be such that you have disengaged with the unit returning not just a few hours later, but well into the following day on. Do you need to escape indefinitely from the imposed regime as opposed to just for a limited period of time? So if you leave but with the intention of returning. And if it's for a limited period of time, with intention of returning, you have not necessarily absconded. So therefore, with that in mind, accorded say that one has to look at alternatives to securities criteria are met, all right. It's a very important case now, as I mentioned with applications for secure in England that would be applied from the Section 25 of the Children actively in Wales. If you're looking to place a child in whales, uh, then he would be applying under section 119 of the social services and well being whales after 2014. But even in Wales, if a local authority, they're seeks to place a child in England for secured and there would be applying under section 25 of the Act of the Children arteries the criteria under Section 119 member, those under section 25 of the Children excel in that respect. They are the same. Okay, so in that respect, it's the same. So do you apply in this section 25 or Section 119 of the Act, and this is where if you look at paragraph 7 to 9 off Part six off the court of Practice and that quarter practices called looked after and accommodated Children. That provides that local authorities who are looking to place Children in secure accommodation in Wales would then a plan to section 119 But if the intention is to place in a secure accommodation into in England, then he would need to apply in this section. 25 of the Children act okay so the courts and whales can hear applications under Section 11 mind on. Also, Section 25 of the Children act Okay. We've also then got the Children Secure Accommodation Whales Regulations of 2015 and these regs impose requirements relation to placement Children secure. So, for example, regulation two sets at the maximum period that local thought it can hold a child and secure without authority from the court. There's also in a position with secure accommodation on placing in Scotland. So this is where we had these two cases of X and y a child off 2016. This was a case handed down by the then president of the family division, Sir James Mumby, and these were conjoined cases whereby the president really raised the issue as to whether, if you make a child is subject to secure accommodation order under Section 25 for the, UH, Section 119 actors were meant section off the 2014 act, then does that enable you to place a child in Scotland on if it can? If it does not, then how do you place a child based in England away? I was in Scotland for purposes secure. Could you used inherent jurisdiction of the high court? So those are some of the questions that were being raised in that case. On Essentially, His Lordship said that Section 25 does not enable a court to make a secure or section 119 off. The 2014 act doesn't enable a court to make a secure order, which allows you to place in Scotland because you would have to actually apply in Scotland for that. An inherent jurisdiction route couldn't be used either, so it would have to involve on application made in the Scottish courts for securing the child there. But this is where there were changes that came in. These were changes brought in as a result of the Children on Social Work Act of 2017 on Section 10 of the act provided that Schedule one amended the legislation so as to allow local authorities in England, Wales to place Children and secure in Scotland and clarifies the position for placement by local authorities in Scotland of Children secure. So basically now as from Wendy's that came in on the 27th of April 2017. If you have a child based in England worlds and one is looking to place in Scotland, then that order that's made would now entitled unauthorized the placement of the child in Scotland for the purposes of secure, you wouldn't have to make an application in the Scottish courts for that. Okay, The last thing I wanted to discuss with you on this session then today is the interface between Cape Ceilings, an Article five of the European Convention. You're not. Article five is about ensuring that persons have right to freedom so that they are not deprived of their liberty other than what is permitted, such as we have been convicted on offensive, which carries a prison sentence or, for example, if they are, say, detained under the Mental Health Act for example, which allows them to be detained. So we need to look at the interface between care proceedings and Article five, and this is where the case of a F comes in. This was a case handed down by the then president Family division that Sir James Mumby on what his lordship said was this looked at the interface between the family court pursuit to Children up proceedings and also Article five. The case itself involved a number of Children ages ranging from 11 to 16. There was subject to final care orders on His Lordship did say that where a child is subject to a care order, whether it's a final or interim order, neither the local authority nor apparent can exercise their parental responsibility. Provide a valid consent for purposes of what's called a stalk requirement. And that's this case of stock in Germany, which looks at the test what's called the acid test for seeing whether or not the person is a deprived of the liberty sort of hips for the purpose of authorizing the deprivation of the liberty. If a child is subject to a care order or interim care order, neither local authority nor the parent can consent to that. Instead, you need authority from the court in that authority is, by way of seeking a dull order, deprivation of liberty order through the inherent jurisdiction of the High Court. And secondly, a foster carer does not have parental responsibility, and either which enables them to provide that consent. So you can't rely upon the foster care to do that, either. It's got to be by way of a dull order in those circumstances on this case also looks at when we do have a deprivation of liberty when he's there. Deprivation of Liberty in His Lordship said that there are two Disney what's called the acid test, which is one looks at whether there is complete supervision and control and not being free to leave. So sometimes somebody may be free to leave. There may not be locked, insult speak, but if there's complete supervision and control, there may be subject to deprivation on. That's when that situation on would need to ensure that they get that authorized by whether dull order. But if a child is subject to secure accommodation order, then that does allow that person's liberty to be deprived in that way and therefore high court order that inherent jurisdiction or the quarter protection order for for example, the person concerned lacks capacity wouldn't be required to sanction to confinement because to secure combination order does that okay, So very, very important case on the process for applying for this is the application would be made through the inherent jurisdiction under the inherent jurisdiction. Right? And we're gonna look at this in more detail. In the next session, the child must be made a party to proceedings and also have a guardian ideally the same guardian as one who would have acted for them in any care proceedings. Okay, but we're looking at in more detail in the next session, and the evidence in support should address the key aspect, such as nature of the regime. So what is it that one is looking at in terms of the level of confinements? Often, what you find is social causal upend something from the unit a literature from unit setting out what the extent of the confinement will be. Okay, and one would need to set at the pub, put details of the proposed placement of regime to show it's necessary and proportionate in meeting the child's welfare needs. Okay, So really, really important in that regard, too. Okay. Right. Okay, So that brings this session to an end. And so you can see of covered Session one off this two part session where we're looking at secure and deprivation of liberty. I hope that's been useful for you. And then what we'll do is we'll pick up with session to where I'm gonna be looking at a deprivation of liberty in more detail. Thank you very much indeed for this thing. And I'll speak to you next time. Thank you. Bye for now.
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