M (A Child) (Secure Accommodation)

A secure accommodation order authorises, but does not require, a local authority to keep a looked-after child in secure accommodation. Under Children Act 1989, section 25, the court must decide whether either statutory gateway is met: a history and future likelihood of absconding with risk of significant harm, or likely injury in other accommodation. Likelihood means a possibility that cannot sensibly be ignored. Absconding has an ordinary, fact-sensitive meaning and is not confined by the child’s intentions. If the criteria are met, the court must authorise a stated period within the regulatory maximum. The relationship between the statutory criteria and any additional proportionality discretion remains unresolved, but proportionality cannot replace a general welfare assessment. Duration must reflect the purpose, likely timescale and need for transition, and be no longer than necessary.

Emma, aged 15½, was subject to care proceedings following serious and repeated risks arising from her behaviour beyond parental control. She had previously been placed in residential settings, had repeatedly disappeared from accommodation, self-harmed and behaved violently or abusively. A secure accommodation order had previously been made.

On 9 November 2018, HHJ Sharpe at Swansea Civil and Family Justice Centre made a care order and a further six-month secure accommodation order. Emma appealed only against the secure accommodation order, arguing that neither statutory gateway was satisfied, that the order was disproportionate, and that its duration was excessive. The local authority and Guardian supported the order. The central issues were the statutory risks, proportionality and the appropriate period of authorisation.

Disposition

Lord Justice Peter Jackson gave the judgment, with Lord Justice McCombe agreeing. The appeal was dismissed.

1. Statutory gateways. A secure accommodation order permits, but does not compel, the local authority to keep the child in secure accommodation. Under section 25 of the Children Act 1989, the court must determine whether the criteria are satisfied and, if they are, authorise secure accommodation for a stated period. Section 25(1) contains alternative gateways: a history of absconding coupled with a real possibility of future absconding and likely significant harm, or likely injury to the child or another person in other accommodation.
2. Likelihood and absconding. Likelihood means a possibility that cannot sensibly be ignored, following Re G (Secure Accommodation Order) [2001] 1 FLR 884 at 896. Absconding means more than trivial disobedient absence. It may involve escape from an imposed regime, as explained in Re W [2016] EWCA Civ 804 at [21], but it is not confined by the child’s intentions. The assessment remains fact-sensitive.
3. Proportionality. Section 25(4) uses mandatory wording once the criteria are met. Authorities differed on whether the statutory criteria provide an inbuilt proportionality check or whether a further proportionality assessment is required. The court left that issue unresolved. It held only that proportionality must not become a surrogate for the general welfare assessment rejected in In Re M (Secure Accommodation Order) [1995] Fam 108.
4. Application. The judge was entitled to find a history of absconding and a real possibility of further absconding, notwithstanding Emma’s recent progress. The evidence showed that the progress was at an early stage and that the risk of significant harm remained real. The judge’s proportionality conclusion could not be gainsaid.
5. Duration. Regulations 11 and 12 of the Children (Secure Accommodation) Regulations 1991 set the maximum periods. The authorisation must reflect the purpose to be achieved, the likely timescale and the requirement that it be no longer than necessary, with reasons explained, following Re W (Secure Accommodation Order) [1993] 1 FLR 692 at 697. Six months was appropriate because transition to suitable residential accommodation was likely to be lengthy. The order did not require Emma to remain in secure accommodation for the whole period.

• Court of Appeal (Civil Division): Appeal heard on 29 November 2018 and dismissed; judgment dated 6 December 2018, [2018] EWCA Civ 2707.
• Swansea Civil and Family Justice Centre: HHJ Sharpe made a care order and a six-month secure accommodation order on 9 November 2018 in case SA17C01718.