A Child (no approved secure accommodation available; deprivation of liberty)

Where a local authority seeks to deprive a child of liberty because no approved secure accommodation is available, the safeguards associated with Children Act 1989, section 25, should not be bypassed by relying on the High Court’s inherent jurisdiction. The child should ordinarily be joined and separately represented, with a guardian appointed where necessary. A child of sufficient age who wishes to attend a hearing concerning the deprivation of liberty must ordinarily be enabled to do so. The exception is where attendance would damage the child’s health, wellbeing or emotional stability.

A local authority sought continued authorisation under the High Court’s inherent jurisdiction for the deprivation of liberty of a boy aged about 13½. The child had a history of seriously uncontrolled behaviour and had experienced repeated placement breakdowns. No approved secure accommodation placement was available, so the authority proposed placing him in an unapproved unit where restraint might be used.

An earlier High Court order had authorised the deprivation of liberty for three months and directed a review. The issues were whether the child should be joined and represented, and what participation safeguards should apply at the review.

1. The application concerned a child who had already been deprived of liberty for three months in an unapproved placement. The High Court accepted that authorisation could presently be given only under its inherent jurisdiction.
2. Holman J held that the statutory safeguards in section 25 of the Children Act 1989 should not be outflanked or sidestepped merely because the lack of an approved secure accommodation placement required reliance on the inherent jurisdiction. The analogy with a secure accommodation application was close, although the application was formally different.
3. Section 25(6) makes legal representation an important safeguard in secure accommodation proceedings. The same concern applied here. The child was therefore to be joined as a party, and Cafcass was directed forthwith to allocate a guardian to act on his behalf, if practicable the guardian who had represented him in the care proceedings.
4. The court directed that the matter be reviewed in one month, rather than after a further three months, with an interim report from the guardian. Given the gravity of depriving a child of liberty and the child’s age, he was to be enabled to attend the hearing if he wished, unless the guardian considered that attendance would damage his health, wellbeing or emotional stability.
5. The court expressed serious concern that repeated resort to the inherent jurisdiction might bypass the Secretary of State’s approval safeguard for secure accommodation establishments. The judge intended to draw that wider concern to the attention of the President of the Family Division.

First instance decision. The judgment does not state any prior appellate history.