Hello. Welcome when I'm so after my marriage and I'm pleased to welcome you to today's second session where we're looking at secure accommodation on deprivation cases in Children matters. So this is data law on a mime. Softer Mahmoud Thomas Lister on a lecturer in family law. So you remember in the first session we spent some time looking specifically at secure accommodation orders and how they work, uh, applications you would make had it would work in practice. The criteria we made reference to the primary legislation also to secure accommodation regulations as well as a developing case law within. Towards the latter part of the last session looked at the case of a F. The case where the President family division certainly looked at the position with deprivation off liberty applications. Andi, whereby when a child is subject to a care order or interim care order, neither the local authority nor deep parents would turn to responsibility, can consent to their deprivation for the purposes of the stock requirements. And that's where the dull applications coming. So I'm going to be going through that in more detail with you today on. This is as of September 2020. So with the A F case, we're talking about the fact that applications would be made by local authorities. They would need to get their social statement together together with a really literature in terms of what the extent of the confinement is on that would then be lodged. The guardian should be appointed charge should have. Ideally, the same garden is what they have or did have in any cape seatings. Andi the order would unauthorized the extent of deprivation which could be for some period of time. Brought about the use of warship. Is warship on option as well in these circumstances? Well, this is where this case of reem comes in. Reem Children is 2016 Decision The In Judgments Hand down by Lord Justice McFarlane on the issue the court has was the extent of the court's jurisdiction to make orders in relation to warship author inherent jurisdiction. But for the purposes of accommodation of a child who had reached the age of 17, so can you use warship to accommodate a child on the court? Did say that yes, you can to make orders, you can use them how it jurisdiction to enable orders to be made for the child to be kept in local authority foster care, but not for the purposes off requiring them to be accommodated. It's mawr where it's more so as a framework to be used to facilitate communication on accountability. So in the sense that the child is already accommodated or there won't be any any objections to been been accommodated on, the purpose of warship is really to facilitate the framework for that for that aunt to deal with any elements of communication. Okay, so this case does confirm that one can only use warship to continue to accommodate a child who has turned 17 if it's with the agreement of the parents with parental responsibility or if you got the parent the child's consent. It cannot be used to accommodate a child who's already turned 17. If the parents or the child or not consenting. Okay, so it's merely a mechanism to support. Okay, now, we spoke about the A F case about making applications for deprivation of liberty to authorized that deprivation the doll application. But then you gotta ask yourself, Is it a deprivation? Does it actually meet the test for it being a deprivation in the first place. And this is where the case of RD comes into play. So this is re RD deprivation or restriction off. Liberty is 2018. Decision. The case here involved a child who was 14 years of age. She was subject, kept ceilings and may subject to an interim care order. Now she had a complex set of therapeutic needs. Her parents accepted that they couldn't meet her needs, and she was placed in a residential placement in Scotland should be in there for some months. The question then arose as to whether or not his placement was in fact, meeting her needs or not. Okay, on the court did ask whether this regime a T unit, was in fact depriving her off a liberty in such a way to engage Article five in that regard. Okay, local thought he thought it didn't deprived of the liberty, and therefore it wasn't breaching Article five of the European Convention, but that's where three other parties take. Took a different view on that. So it was felt that need to be put to the court, and ultimately, the court did sound of facts that it was finally balanced decision. What the court said was, whether it's a deprivation or not. We need to look to see if what's being done in that unit is similar to what apparent would do in a domestic setting. So the court said it had been there, say, for the court to examine whether these features a manager of regime of complete supervision and control when compared with the natural situation off a typical child of the same age situation, familiar background and maturity. Okay on yes, there were boundaries set in there. There were boundaries such as, for example, limited access to Internet. For example, there was 1 to 1 attention given and support at times. But the court did take the view that there weren't persuaded that the staff ratio indicated that the residents were in fact subjected to complete or constant supervision and control, and therefore because of that, even though there was regulation there, it didn't go beyond what you would expect in a normal domestic setting, and hence on that basis it wasn't a deprivation of liberty. It doesn't satisfy the stock in Germany requirement and therefore there was no need to seek the authorization, which was it was being suggested was needed. Okay, Now that then brings me on to some of the other developing case law. So you've got the case of Reem, for example, this 2018 quarter appeal decision and a couple of key things really, that this case highlights one is that secure accommodation It does permit, but does not compel a local authority to keep a child in secure accommodation. Okay, so it doesn't so it's a bit like a missive order when you have a look at a Section 34 subsection for the Children Act with a local authority I've got has got authority to refuse contact. It doesn't mean they have thio. It's not in order for no contact, It's an order which permits want to refuse contact in the circumstances. So in that respect, it's similar on one of these things. This case also picked up on was the notion off absconding So picking up from that previous case, we w that we mentioned in the first session of 2016 case. This case, Reem two years later looked at also what we mean by absconding. And his Lordship did say that absconding means something more than just trivial, disobedient absence on judges can be relied upon to give its ordinary meaning and recognized behavior that could be properly described as absconding. And also in order circumstances off the case in that regard. Okay, Andi, uh, judge was within their powers were making in order off six months duration in that regard. Okay, so with that in mind that it was felt that this was necessary and therefore could be made in these circumstances, Our type. So you consider thinking behind that. Now, let's now look at the position with Children who are 17 on where there are difficulties with either child or indeed the parent off, not consenting. And if objecting. So what happens in that situation when one looks at deprivation? So it's the case of a city council against Ellis on others Thistles, secure accommodation, inherent jurisdiction case. This was handled by Mr Justice McDonald. Now, the question that was asked was this as a poor here for you. The issue in this case waas whether the high court, through the use of the inherent jurisdiction, can authorize a local authority place and secure a 17 year old who has not who is not looked after about a local authority within the meaning of Section 22 but where the parents objected to that course of action on where the child was at grave risk off serious and possibly fatal harm. So putting it another way, if you got 17 year old who's not looked after by the local authority, therefore not subject to interim care order or care order on not accommodation under sections and 20 in England or section 70 60 miles under the 2014 Act. And if in that situation, the pain subjected to that child being accommodated on where the child is not consenting, either then can used in having jurisdiction to accommodate them and the simple answer that was no. But let's look at why. So this was a case involving a 17 year old who was involved in gang activity, which included county lines, drug dealing, alleged involvement in life crime and shooting on possible possibly be going to receiving end of the Reprisals off. That's obviously significant harm in that regard. So the local authority sought to place his child in a unit for their protection. All sort of protection of others. His child was 17, wasn't subject to a care order or interim care order. The local authority large this application using form C 66 with assault, invoke the inherent jurisdiction off the high course. That's what I did. Now the local authority did accept that this child's not looked after. There's no care or there is no interim care order. In fact, because the child 17, we cannot now apply for a care order under Section 33. Once a child turned 16 and married or once or 10 17 in this case, not possible to go for cable to sort accepted that. Okay, but nonetheless, the local authority said they could him folk Dean haven't jurisdiction to be able to accommodate the child on this is where the inhabit jurisdiction does actually prohibit the court exercising. Ah, the inherent jurisdiction, sort of our limitations on one of the limitations is you can't use the inherent jurisdiction to require a child to be placed in KO to be put under supervision of local authority or to require chart to be accommodated. On that case, Della mentioned earlier to 2018 AM case illustrates that were just mentioned earlier, and also that Reem case of 2016 by Lord Justice McFarland. So you cannot use warship cannot using having jurisdiction to require a child to be accommodated but mawr just to use it as a framework for when the child is accommodated in which you haven't got opposition to. But a local authority said what they said were not country contravening that because we're not requiring the child to be accommodated. We are simply auth asking for authorization but his lordships that there isn't any difference. You've got opposition here on whether you're asking for authorization, whether you requiring it's much the same thing. So because of that, they simply had no authority to do so. So His Lordship said that the court was not permitted, therefore to use and to enable inherent jurisdiction to be used to authorize or two required a chart to be accommodated in the manner requested by the local authority. So the application was dismissed. Onda the interim orders that had been made were set aside and discharged. Okay, now there's sometimes this question mark us to Charles consent is a child's consent required to any secure accommodation application. So this was the case of re t. A child is 2018 Decision on in this case than leading judgment was handed down by the president of the family divisions, Sir Andrew McFarlane. So the issue here was the approach to be taken by the court, whereas in this case, if a child is Gillick competent so they are competent to consent Andi whether or not that consent is required to them make make them subject to secure accommodation order whether in the section 25 of Children actual Section 119 of the social services. Um, not being Wells Act of 2014 on his Lordship said that there's nothing in a statutory schemes under either of these provisions, which, uh huh required lack of consent in that regard. Okay, so neither the statutory schemes for secure in England and Wales make any reference to the need to establish a lack of consent on the part of the subject. Okay. On his Lordship said that the fact that consent is not a factor under Section 25 of Section 119 in contrast to requirements and Article five when determining whether there's a deprivation of liberty to then look at the elements of the stock requirement points to the difference in the procedures between a secure accommodation application on day deprivation of liberty because of deprivation of liberty, there is a requirement to establish that lack of consent in order to go ahead on Make That doll order was, you don't need that lack of consent to be determined for the purposes of a secure accommodation order. Okay, so again very important to me now, as I mentioned in the first session, when Children are my subjects secure accommodation or this, then there may well be a need for a review. So it will be a review hearing set up to review that placement. With that in mind, Andi, that this is whereby if the child does no longer Mr Secure Criteria view that this is where the local authority should be looking at alternative options for the child. So this is where the case of the Queen on the application of FDN ex NBC comes into play this 2019 decision. So it's a high court decision. This was an application for judicial review off a local authority continue to detain a 14 year old insecure. The application was in urgent interim injunction challenging the continued detention off the child under section 25. Okay. The child was Gillick competent. Onda acted without litigation, friend. She'd been placed in secure when she was 13 years of age. Okay? She was my subject to his full order fault care order. And then there was a period of non secure accommodation. And then she was remitted to secure thereafter. Okay, She didn't meet. The criteria for security order was made. She had a history of absconding, and she was made subject to a section 25 order. Okay, As we said earlier than they didn't has to be. The review on what happened is a secure If you was convened at the home on this is pursuing to the Children secure comrades of 91 to mention in the last session there was a disagreement as to meeting as to whether the child continue to meet the criteria or not. Okay. The staff from the accommodation of local authorities said that she did meet the criteria, but the panel said she didn't okay. And the panels decisions where that they had been clear progress made by her. Okay, so they took a different view. The recommendation by the panel was then given to the director of Social. So sees on the child, attended the review panel and spoke to the chair separately, wrote a letter Okay and the child herself. With sanctions ready, Thio, leave the unit on what the director said is I'm agreeable to assent to our period in which they considered of relevant information and then to decide whether to offer tender panel outcome. Okay, And this is where the question was, Did the local Foti exercise the authority appropriately and hear? Her Ladyship said that the secure regulations are silent as to the effect of a decision by the review panel that the criteria for keeping the challenge secure, no longer satisfied. But her ladyship did say that it could be inferred from Regulation 16 3 that the ultimate decision is for the local authority on that. The view of the panel is a recommendation on Lee so they don't make the decision to recommend. And as you'll appreciate, this is very much the same as many other situations with panels. For example, adoption panel. Some of you know fostering panel's recommendations will be very important. Recommendations are made, but ultimately the decision rests with the local authority on This is what happened here. So recommendation was made on indeed, director bases. Their decision on what they've read and heard and representation is made on. Therefore, Ladyship did say that the application was misconceived shouldn't have improved. So the application of judicial review was discharged. Okay, Right now that brings me on to inhabit jurisdiction and deprivation of liberty. This case of Zed County Council, Andi M, F and C. And this is one where about a local authority applied for permission to involved in having jurisdiction of the high court. They sought declarations at their care regime in place. For a child, it was only 14 was a deprivation of liberty. So they applied for that child was subject to interim care order in currently kept ceiling. So they applied to involved in having jurisdiction, which was which was done. All parties supported the application except for the mother. Have you was that the child had been secure for some time and by the placement could only be sanctioned by Section 25. Secure accommodation or not fired inherent jurisdiction. So she said she didn't oppose a child remaining. She just said the legal framework that was being used to keep the child in. That placement was wrong. So it was more off a legal argument in that respect in terms of framework that's been used, that she was arguing. Mother's case wasn't therefore, like, say, so much that she was opposing the regime. But it's more given the manner in which the chance placement was authorized. Now it was accepted by all parties that the regime at the unit was one where the child's liberty was deprived. So there was lack of freedom to leave the unit. There was the constant supervision and control to which the child was subjected to. There's limitations to access to telephone to the Internet, for example, the freedom she had. So clearly the child did meet the acid test for deprivation of liberty on some of the previous authorities. Some of you know which looked at that in terms of constant supervision and controlled cases such as P in Cheshire, Western Cheshire, canceling All of this were met your case. All parties agreed that the acid test, so to speak, were met on. The question then was when can they inherent jurisdiction actually be used and This is where the course that Section 100 subsection three other Children that does provide that no application for exercise of its court's inherent jurisdiction with respect to a child may be made by local authority unless they have obtained leave off the court What the leave had been sought here. This particular unit was not unauthorized on approved Children's home. Ah, Mother claimed that it wasn't lawful route to use deprivation because it should have been Section 25 she argued. All right, So if the statutory criteria were not met, she said, If a child doesn't meet the criteria for Section 25 then a child should not be in this other unit on outside this framework. It's unlawful. So it was either If the child meet the criteria, you put him in a secure unit. But if a child doesn't, you can't keep her elsewhere in another placement through the door route on, she said. If you do intend to place elsewhere, then the local authority needs to apply to have that unit become regulated. Okay, now, the court did say that the Section 25 order was inappropriate in the circumstances. On the fax, it should be narrowly interpreted. And here it wasn't in order that was required. But candor court usually inherent jurisdiction to deprive the charge of the liberty. And the answer here was, yes, it can be done and was done in these circumstances. If not, if that wasn't done and what it would mean is it a child couldn't be in this unit because it wasn't approved by the secretary of state. Then where would you put them on? Therefore, there would be no other mechanism off being able to protect the child in the circumstances. Okay, so it's a very important case in that regard. Then he got the case of re be Secure Accommodation 2019. This is a case involving a 15 year old on what this emphasizes is when we look at secure accommodation. What is it? What do we mean by secure accommodation and effectively means that the primary purpose of secure must be for the purpose of restricting that chance of liberty so secure could be within reason, any unit where the primary purpose of it is to restrict that person's liberty. Okay, so he emphasizes that point on the child's welfare is a relevant factor. Okay, so the local authority and the court must each consider whether the proposed placement would save going to promote the child's welfare. So even though the welfare is not paramount, it is an important factor in the analysis. It's one of the factors which must be considered okay. And finally what I want to dio is I wanted to dumping up speed with one of the more recent cases of re s. This is one of the more recent cases in 2023 EST your child in care unregistered placement on this typifies really some of the difficulties we all currently have link with not enough secure units available on Children who need to be subject to assistant to certainly deprivation for their benefit, the benefit of others in alternative units. So this case involved a 15 year old was subject to an interim care order. She was residing in a cottage for the purposes of accommodation. On this was a placement provided to her by the local authority. Now, even though this placement was supervised, it wasn't unauthorized placement not authorized by Secretary of State by office, that so it wasn't. It was unregistered and it wasn't regulated by Ofsted on His Lordship did say that this really echoes what's happening all over a crossing in the wells where they are simply not enough secure units available on day four Children are being placed in unregulated placements due to shortage of secure accommodation units. This was a child who historically had taken an overdose of prescribed drugs. She had her self harmed. She was significant risk to herself. In that regard, you continue to abscond even from the unit and placed herself at risk Onda. Deprivation of Liberty application had been made. Onda at the placement in unregistered placements are often accompanied by applications to the high court, which is what happened here for authorization now because more more Children were therefore being placed in unregulated placements. This is where he was his guidance that was issued jointly by the president's family divisions. Sir Andrew McFarlane, on also Buy Off, stayed on 20 under 12th of November 2019, which makes clear that judges should ensure that when they are authorizing a placement in unregistered units, that steps are taken immediately by those operating the units to apply for registration. If the unit, of course, requires registration so that it does become regulated. So that's very, very important to Dio on. One of the other things this case highlighted is if there is a need to place a child in a unit off this nature, then the doll order that's applied for you need to make sure that it makes provision for purposes of transporting the child from into the placement and also to court into contact. So here on the fax, the order director, that the local authorities, officers and agents were authorized to use reasonable force to detain the child in a transport or to return her to the transport if you, for example, attempt to leave. Okay, so the way forward what the court said is it's very important to raise awareness of the fact it was felt that, uh, there was simply not enough secure units available on that was very important. Those Children were being placed on registered Children's homes that those were therefore applying to become registered us as quickly as possible. Okay, so you can see over this session of continued to develop the law related to secure accommodation. Also in this session, we spent some time looking specifically at the law relating to, uh, deprivation of liberty. You can see this is a growth area. There's lots of new cases coming in as we've seen. And therefore it's an area that more more Children, lawyers and family lawyers do need to be equipped with aunt to understand. Can I thank you very much indeed. For listening. I hope that's being useful Session for you on. I'll speak to you next time. Thank you very much indeed. Thank you. Bye for now.
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