W (A Child), Re

A child’s consent is not a prerequisite to a secure accommodation order under section 25 of the Children Act 1989. The court must nevertheless give due regard to the wishes of a competent child, consistently with the child’s welfare.

“Absconding” bears its ordinary meaning and connotes escape from an imposed regime. Deliberate, temporary absence in breach of a curfew does not necessarily amount to absconding. The statutory grounds are alternatives, so an order may stand where the absconding ground fails but other accommodation would expose the child to injury.

Although section 25(4) uses mandatory language, an order engaging Convention rights must be necessary and proportionate. Secure accommodation is protective, not punitive.

A local authority accommodated a 17-year-old child who was found to be a victim of child sexual exploitation. Following repeated disruptive and risk-taking behaviour, Keehan J made a three-month secure accommodation order under section 25 of the Children Act 1989: [2016] EWHC 1139 (Fam).

The child appealed. She argued that the court lacked jurisdiction without her consent to accommodation or secure accommodation. Alternatively, she submitted that the judge had misinterpreted “absconding” and that the deprivation of liberty was unnecessary and disproportionate because less restrictive safeguards were available.

The Court of Appeal had to determine the basis on which the local authority accommodated the child, whether her consent was required, whether the statutory secure-accommodation criteria were met, and whether the order was necessary and proportionate.

1. Appeal dismissed unanimously. The child was accommodated under section 20(3), rather than section 20(5), of the Children Act 1989. Her welfare would have been seriously prejudiced without accommodation. The factual possibility that the placement could also promote or safeguard her welfare did not determine its statutory basis. Accommodation under section 20(3) provided a gateway to an application under section 25.

2. The child’s consent was not a prerequisite to a secure accommodation order. Section 20(6) requires the local authority to ascertain and give due consideration to the child’s wishes and feelings, so far as reasonably practicable and consistent with welfare. It does not require consent. Section 25 authorises coercive intervention, subject to due process and judicial sanction. A competent child’s opposition may dissuade a local authority from applying, particularly as adulthood approaches, but it does not remove the court’s jurisdiction.

3. Competence in this context requires sufficient emotional maturity and intelligence to reach a reasoned decision in the child’s particular circumstances and having regard to the services involved. Chronological age alone does not establish competence.

4. “Absconding” in section 25(1)(a) bears its ordinary meaning and connotes escape from an imposed regime. The child’s deliberate absences for limited periods, although in knowing breach of curfews, did not constitute a history of absconding. The judge had therefore categorised those absences incorrectly.

5. The error did not affect the result because the alternative criterion in section 25(1)(b) was satisfied. If placed in accommodation unable to contain her, the child was likely to injure herself through exposure to serious harm. The local authority had relied on both statutory grounds, and the child conceded that section 25(1)(b) was satisfied, subject to her other arguments.

6. Articles 5 and 8 ECHR were engaged. Despite the mandatory word “shall” in section 25(4), a secure accommodation order must be necessary and proportionate. Less restrictive measures could not adequately address unknown individuals, sexual exploitation, disinhibition and behaviour extending beyond ordinary teenage rebellion. The order was justified, necessary and proportionate. Section 25 is protective rather than punitive, including where the child is close to adulthood.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal and affirmed the secure accommodation order: [2016] EWCA Civ 804.
2. High Court, Family Division: Keehan J made a three-month secure accommodation order under section 25 of the Children Act 1989: [2016] EWHC 1139 (Fam).