On 21st November 2019 the Court of Appeal handed down the Judgment in the case of Re B (Secure Accommodation Order) [2019] EWCA Civ 2025. The case has significant implications and provides a wide-ranging analysis of Secure Accommodation. It is of key importance to practitioners.
Somia Siddiq of ITN's family department represented the Association of Lawyers for Children (ALC), who were invited to intervene in this very important appeal. Lord Justice Baker thanked the legal team, and Somia personally, for their 'helpful contribution' to the case.
The case is of significance to practitioners because it establishes a new test on Secure Accommodation applications and specifically adds welfare and proportionality to the test. This means that there needs to be an analysis, looking at the advantages and disadvantages of a Secure Accomodation order being made, weighing them up and looking at the issue as a proper welfare exercise. That is now part of Section 25’s relevant criteria and the court cannot make an order unless that aspect of the criteria is also met, so welfare and proportionality are firmly introduced into the criteria.
Prior to this case, as long as the previous criteria were met, an order could be made without consideration to the welfare of the child - i.e. is it in the children’s interest for an order to be made?
In B the Court of Appeal concluded that in determining whether the “relevant criteria” under Section 25 (3) and (4) are satisfied, a court must ask the following questions:
- Is the child being “looked after” by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7 of the Children (Secure Accommodation) Regulations 1991 ("the 1991 Regulations")?
- Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?
- Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?
- If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children’s home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?
- Does the proposed order safeguard and promote the child’s welfare?
- Is the order proportionate? - i.e. do the benefits of the proposed placement outweigh the infringement of the child’s rights?
The full Court of Appeal Judgment can be found here.
If you are working with young people who might be affected by a Secure Accommodation Order then please do not hesitate to get in touch using our contact form. You can also call us on 020 3909 8100 and ask to speak to Mitali Zakaria or Somia Siddiq in the Family Department.