London Borough Of Barking And Dagenham v SS

An order under section 25 of the Children Act 1989 is concerned with the curtailment of liberty, not the designation of a particular establishment. The statutory criteria are disjunctive. Even where one or more criteria are satisfied, the court must decide whether restricting the child’s liberty is proportionate and justified. Secure accommodation is a measure of last resort. The court must consider conventional and creative alternatives, the child’s welfare, dignity and autonomy, and the likely effect of the regime. A placement cannot be continued merely because a more suitable specialist placement is unavailable.

The local authority applied under section 25 of the Children Act 1989 for authority to keep SS, a 15-year-old child subject to interim care orders, in secure accommodation. SS had been trafficked to the United Kingdom for sexual and financial exploitation and had absconded twice from a foster placement. She had been accommodated in a secure unit for approximately four and a half weeks.

The local authority relied on the risk of further absconding and significant physical or emotional harm. The social worker and guardian considered her vulnerable and in need of protection, but evidence also identified the foster placement as capable of supporting therapeutic intervention. The issue was whether the statutory criteria were satisfied and, if so, whether continued confinement was a proportionate and justified restriction of liberty.

1. Application refused. The court accepted that SS was likely to abscond if not in secure accommodation and that she was likely to suffer significant physical or emotional harm if she did so. However, two absconding incidents did not clearly establish a history of absconding. The statutory limbs remained disjunctive, so either limb could in principle suffice: [2014] EWHC 4436 (Fam), paras 2, 20 and 26.
2. The court adopted the approach that secure accommodation involves a deprivation of liberty for the purposes of article 5 of the European Convention on Human Rights. The assessment of likelihood had to be based on actual facts and the clarified approach applicable to the threshold under section 31 of the Children Act 1989: paras 2 and 20.
3. Section 25 is a tightly regulated protective power and must remain a measure of last resort. That requires consideration not only of ordinary care placements but also of creative packages of support. A previous unsuccessful placement should not automatically be rejected as an alternative: para 15.
4. Although the statutory criteria could be met, the court had to apply proportionality principles to the proposed interference with liberty. The secure unit had a custodial character and, in SS’s case, risked reinforcing her distorted sense of guilt and damaging her wellbeing. Its protective function was temporary: to keep a child safe during crisis until a more suitable placement could be found: paras 18–20 and 24.
5. The absence of an available specialist residential placement did not justify continued confinement. The court considered the foster placement, therapeutic support, education, welfare and SS’s dignity and autonomy. In the comparative analysis, the foster placement was preferable to the available non-specialist residential option. Continued secure accommodation was therefore not a justified or proportionate restriction of liberty: paras 21–26.
6. The court directed the local authority to pursue an injunction against the adult male associated with SS’s exploitation and to provide information concerning education and therapeutic support. SS was to return to the foster placement: paras 27–28.

First-instance decision. No prior appellate decision is stated in the judgment.