A County Council v B

Under the inherent jurisdiction, the High Court may authorise a child’s detention in secure accommodation where the statutory jurisdiction is unavailable, but only on criteria no less stringent than those in section 25 of the Children Act 1989. The detention must be lawful, necessary and proportionate under Articles 5 and 8 of the Convention. Educational supervision is interpreted broadly and is not confined to attendance at school or to children below the school-leaving age. The applicant must establish the need for detention by evidence and legal analysis. Secure accommodation remains a last resort and must continue for no longer than the shortest period required.

The local authority applied to continue the secure accommodation of a 17-year-old who was not being looked after by a local authority and therefore could not be detained under section 25 of the Children Act 1989. The child had a history of self-harm threats, drug and alcohol misuse, violence, homelessness and significant vulnerability. Earlier orders had made her a ward of court and authorised secure accommodation under the inherent jurisdiction. The court had already concluded that such jurisdiction existed in exceptional circumstances meeting the requirements of Articles 5 and 8, the underlying principles of section 25, and the statutory scheme. The issue was whether continued detention was lawful and proportionate.

1. The application was granted. The child’s detention in secure accommodation was continued for eight weeks, being the shortest period that could give the proposed educational and therapeutic programme a meaningful opportunity to operate.
2. A secure accommodation order involves a deprivation of liberty engaging Article 5 of the Convention. It is also an invasion of Article 8 rights, which requires justification as lawful, necessary and proportionate. The decision must be based on evidence and legal analysis, rather than on an unstructured assessment of what appears best for the child.
3. Although section 25 was unavailable because the child was not looked after by a local authority, its conditions had to be applied by analogy. The inherent jurisdiction could not justify a looser test. The evidence established an imminent, foreseeable and highly probable risk of serious harm to the child and others, and no suitable less restrictive accommodation was available.
4. Educational supervision under Article 5(1)(d) has a broad meaning extending beyond school attendance to the child’s wider physical, intellectual, emotional, social and behavioural development. The child’s age beyond compulsory education was not determinative. On the facts, the secure unit provided educational supervision, including education, behavioural support and proposed therapeutic work.
5. The child’s welfare remained paramount in the wardship jurisdiction, but welfare considerations could not dilute the safeguards governing deprivation of liberty. The pressing social need outweighed the child’s liberty interest, and secure accommodation was the only arrangement capable of meeting the identified risks.