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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> London Borough Of Barking And Dagenham v SS [2014] EWHC 4436 (Fam) (03 December 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/4436.html Cite as: [2015] 2 FLR 1358, [2014] EWHC 4436 (Fam), [2015] Fam Law 279 |
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FAMILY DIVISION
B e f o r e :
(In Open Court)
____________________
LONDON BOROUGH OF BARKING AND DAGENHAM | Applicant | |
- and - | ||
SS | Respondent |
____________________
Transcribed by BEVERLEY F. NUNNERY & CO.____________________
MR. R. JONES appeared on behalf of the Children's Guardian..
____________________
Crown Copyright ©
MR. JUSTICE HAYDEN:
"Use of accommodation for restricting liberty
(1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ('secure accommodation') unless it appears -
(a) that -
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons."
The provision goes on, at subsection (3), to provide that:
"It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied (inaudible)"
And (4):
"If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept."
(1) It is the essence of 'curtailment of liberty' rather than any particular, or designated, establishment which underpins these orders (see Metropolitan Borough Council v DB [1997] 1 FLR 567);
(2) Secure accommodation is a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights incorporated into domestic legislation by the Human Rights Act 1998 (see Re K (Secure Accommodation Order: Right to liberty) [2001] 1 FLR 526 CP);
(3) The two limbs of s.25(1)(a) and (b) are to be read disjunctively and not conjunctively; that is to say either the criteria under (a) or (b) is sufficient. Both are not required (see Re D (Secure Accommodation Order No.1 [1997] 1 FLR 197);
(4) It remains important to emphasise that there should always be a clear record of facts, when making an order under these provisions. Sworn evidence will always be necessary (see Re AS (Secure Accommodation Order) [1999] 1 FLR 103);
(5) When assessing the phrase "likely to abscond", the test is that applicable to the s.31 Children Act criteria, the so-called "threshold test". (see Charles J in S v Knowsley Borough Council [2004] 2 FLR 716);
(6) However, 'likely' in both limbs of that section must now, like the s.31 criteria themselves, be determined by reference to the clarification given by the Supreme Court in Re B [2013] UKSC 33 and Re SB (Children) [2009] UKSC 17, bearing in mind that it is not a permissible approach to find likelihood of future harm in the absence of findings predicated on actual fact;
(7) The court does not have power to make an order under s.25 in respect of a young person over the age of 16, but the order may be made prior to a child becoming 16, even if it extends beyond the child's 16th birthday ; (Re G (See Accommodation Order) 2001 1FLR 259
(8) Section 25 is not a provision to which the paramountcy principle applies. Section 25 is under the framework of Part 3 of the Children Act 1989 and, therefore, concerned with the general powers and duties of a local authority in relation to children within its area. The general duty of a local authority which applies to promote and safeguard the welfare of the child is not the same as the paramountcy principle. Determining welfare, though, will be illuminated, as always, by reference to the s.1(3) criteria, the welfare checklist. In these cases 'welfare' will always weigh very heavily.
"As I have mentioned, this passage, in my view, indicates that the court, when making a secure accommodation order, must itself decide whether the s.25(1) criteria are met, but, in my view, it does not indicate that the court should decide the welfare issues relating to the duty to safeguard and promote the welfare of a child; rather the passages indicate that the court should assess such welfare issues on the basis that the local authority is the decision-maker and, thus, on the basis whether a placement of a child in secure accommodation is within the permissible range of options open to a local authority exercising its duties and functions to promote and safeguard the welfare of a child who is being looked after by it. Such a child may be one who is being provided with accommodation by the local authority or, as in this case, a child in respect of whom a care order has been made."
On the facts of this case, that distinction, if it is correctly drawn by Charles J, between the rationality of the local authority's interpretation of welfare and the Court's own evaluation of it, is, largely, illusory and, I suspect, always will be, where the liberty of a child is concerned.