M, R (on the application of) v Gateshead Council

A local authority which receives a police request under section 38(6) of the Police and Criminal Evidence Act 1984 owes the corresponding duty under section 21(2)(b) of the Children Act 1989. The duty is absolute as to providing accommodation, but does not require secure accommodation.

The authority has a discretion, subject to section 25, to provide secure accommodation. It must maintain a reasonable system for responding to such requests and exercise its discretion, so far as practicable, to advance the policy of avoiding juvenile detention in police cells. Its arrangements are unlawful if none exist, or if no reasonable authority mindful of that policy could have adopted them.

An arrested 16-year-old was charged shortly before midnight. The police asked Gateshead Council for secure accommodation until her appearance before magistrates the following morning. The Council had no secure unit and considered that the nearest suitable facility, in Hull, could not practicably be used at that hour. The juvenile therefore remained overnight at the police station.

She sought judicial review of the Council's failure to provide secure accommodation. Hodge J refused permission on paper, and Calvert-Smith J refused the renewed application as wholly academic. Wall LJ granted permission and directed under rule 52.15(3) of the Civil Procedure Rules 1998 that the matter proceed in the Court of Appeal as an application for judicial review.

The issues were which local authority owed the section 21(2)(b) duty, whether that duty extended to secure accommodation, and whether the Council had breached it.

1. The application for judicial review was dismissed. The duty under section 21(2)(b) of the Children Act 1989 falls on the local authority which receives the custody officer's request. Unlike sections 17, 18 and 20, section 21 does not confine the duty to children within the authority's area. Nor does section 38(6) of the Police and Criminal Evidence Act 1984 identify a particular authority. The unqualified language gives the police a wide discretion to approach the authority considered suitable.

2. Section 21(2)(b) imposes an absolute duty to receive and provide accommodation. It does not impose an absolute duty, or a best or reasonable endeavours duty, to provide secure accommodation. Secure accommodation is a type of accommodation which the authority has a discretion to provide, subject to the restrictions in section 25. Section 38(6) expressly contemplates that secure accommodation may be unavailable.

3. A request for secure accommodation cannot be ignored. A statutory discretion must be exercised to promote the statute's policy and objects, applying Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. The relevant object is to avoid detaining children in police cells if at all possible. Every authority must therefore maintain a reasonable system for responding to section 38(6) requests and exercise its discretion, so far as practicable, to advance that object.

4. In assessing such a system, relevant considerations include the urgency and rarity of requests, the cost of maintaining secure accommodation, the availability of beds elsewhere and the practicalities of transport. A court should intervene where the authority has made no arrangements, so that secure accommodation can never be provided, or where no reasonable authority mindful of the statutory object could have adopted its arrangements.

5. Gateshead's arrangements were lawful. It could sometimes obtain accommodation in Hull, although the distance generally made an overnight placement impracticable when a child had to attend court the next morning. The request in this case was made at 00.20 for a 10.00 court appearance. The Council was not in breach, and no declaration was necessary.

Moore-Bick LJ agreed. Thorpe LJ agreed with Dyson LJ's conclusion and reasoning, adding that the Council's officers and systems fully complied with its statutory obligations.

1. Court of Appeal (Civil Division): The application for judicial review was dismissed in [2006] EWCA Civ 221. The court nevertheless determined the important statutory issues and declined to grant declaratory relief.

2. Court of Appeal permission stage: Wall LJ granted permission and directed under rule 52.15(3) of the Civil Procedure Rules 1998 that the matter proceed in the Court of Appeal as an application for judicial review.

3. Administrative Court: Calvert-Smith J refused the renewed application for permission because it was wholly academic, while observing that a future argument that accommodation should include secure accommodation was not necessarily unarguable.

4. High Court paper stage: Hodge J refused permission because the claim was academic and the claimant lacked a real interest after her police detention had ended.