P, Re (Application for Secure Accommodation Order)

The restrictions in regulation 5(2) of the Children (Secure Accommodation) Regulations 1991 apply to a person over 16 accommodated under section 20(5) of the Children Act 1989, because that accommodation is discretionary. They do not apply where a looked-after child aged between 16 and 18 is accommodated under section 20(3), which imposes a duty on the local authority. In the latter case, the court retains power under section 25 to make a secure accommodation order. Whether accommodation is provided under section 20(3) or section 20(5) is a question of fact for the court where the parties disagree.

P, aged just over 16, had been accommodated by the local authority with her mother's consent and had subsequently become a ward of court. The local authority applied for a secure accommodation order under section 25 of the Children Act 1989. P was later detained under section 3 of the Mental Health Act 1983, so the application was adjourned generally with liberty to restore.

The court determined the jurisdiction issue in advance because the local authority might need to renew the application urgently if P ceased to be detained under the Mental Health Act 1983. The central question was whether section 25 could apply to a child over 16 accommodated under section 20(3), rather than under section 20(5).

1. At present, section 25 could not apply because P was detained under section 3 of the Mental Health Act 1983. Regulation 5(1) of the Children (Secure Accommodation) Regulations 1991 excludes children detained under that Act.

2. Section 25 permits secure accommodation where either the statutory absconding and significant-harm criteria in section 25(1)(a), or the injury criterion in section 25(1)(b), is satisfied. The relevant statutory scheme must be read with sections 22 and 20 of the Children Act 1989, and regulation 5.

3. The observations in London Borough of Barking and Dagenham v SS [EWHC] 4436 (Fam) that the court has no power to make a section 25 order for a person over 16 were made in a case concerning a child under 16. They did not determine the present issue.

4. Re G (Secure Accommodation) [2000] 2 FLR 259 established that an order made before a child reaches 16 may continue beyond the sixteenth birthday. Its discussion of sections 20(3) and 20(5) supported the distinction between accommodation provided as a statutory duty and accommodation provided in the local authority's discretion.

5. Section 20(3) imposes a duty to accommodate a child aged 16 or over whose welfare is likely to be seriously prejudiced without accommodation. Section 20(5), by contrast, confers a discretion to accommodate a person aged 16 to 21 in a suitable community home. Regulation 5(2) excludes only a child accommodated under section 20(5).

6. Accordingly, where a looked-after child aged between 16 and 18 is accommodated under section 20(3), the court has jurisdiction to make a secure accommodation order under section 25. The local authority's application was adjourned generally with liberty to restore.