W Borough Council v DK

A secure accommodation order under Children Act 1989, section 25, is a deprivation of liberty requiring justification under Article 5. The statutory scheme is compatible with Article 5(1)(d) where the order is made by a court and the child receives, or is placed under arrangements directed towards, educational supervision. Educational supervision is a broad concept. It includes protective, developmental and behavioural work, not merely classroom teaching. The court must consider the statutory criteria, the child’s welfare, the need to protect the public, and the appropriate duration of the order. Section 3 of the Human Rights Act 1998 requires a compatible interpretation where possible. A possible breach arising from an individual application of section 25 does not make the section itself incompatible.

The local authority appealed against a secure accommodation order made by the Liverpool County Court concerning AK, a 15-year-old child with serious behavioural, sexual and safety risks. AK had been accommodated in a secure unit since December 1998 and challenged the order made on 30 June 2000.

He argued that section 25 of the Children Act 1989 was incompatible with Article 5 of the European Convention on Human Rights and sought a declaration of incompatibility and damages under the Human Rights Act 1998. The local authority also sought a further order extending the placement. The central questions were whether section 25 involved a deprivation of liberty and, if so, whether the detention was justified under Article 5(1)(d).

1. Appeal and further order. The appeal was dismissed. The court granted a further secure accommodation order until 16 February 2001.
2. Deprivation of liberty. The majority held that a secure accommodation order under section 25 is a deprivation of liberty for Article 5 purposes. The statutory purpose of restricting liberty, the requirement for court authorisation beyond 72 hours, and the intensity and duration of the regime showed that the arrangement exceeded ordinary parental control. Thorpe LJ dissented on this issue, considering the regime an exercise of parental responsibility, but agreed that any deprivation was justified under Article 5(1)(d).
3. Article 5(1)(d). The majority held that section 25 is compatible with Article 5(1)(d). A secure order is made by lawful court order and may serve the purpose of educational supervision. That expression is not confined to classroom instruction. It includes the broad developmental, protective and behavioural supervision required for a child in local-authority care. Education need not be the sole purpose of detention, but there must be present or reasonably imminent educational provision.
4. Statutory interpretation. Under section 3 of the Human Rights Act 1998, the court must seek a possible Convention-compatible interpretation. The possibility that a particular application of section 25 might breach Article 5 does not establish that section 25 itself is incompatible. No declaration of incompatibility was therefore appropriate.
5. Application to AK. AK’s secure placement provided education and carefully supervised developmental support. His continuing risk to himself and others justified the order. The damages claim did not arise; in any event, the court considered that neither the court nor the local authority would be liable merely for applying the unrepealed statutory scheme.

• Court of Appeal (Civil Division): dismissed the appeal from the Liverpool County Court and granted a further secure accommodation order until 16 February 2001.