B (Secure Accommodation Order), Re (Rev 1)

A secure accommodation order under Children Act 1989 section 25 may be made only after the court independently determines all relevant criteria at the date of the hearing. Secure accommodation is accommodation designed for, or having as its primary purpose, the restriction of liberty. Premises not designed as secure accommodation may acquire that character through their particular use.

The child’s welfare is important but not paramount. The court must independently evaluate whether the proposed order safeguards and promotes welfare, subject to any need to protect the public. It must also determine whether the benefits outweigh the infringement of rights under Articles 5 and 8. Deprivation of liberty must be a proportionate measure of last resort. If all relevant criteria are satisfied, the court must make the statutory order.

A local authority appealed against HH Judge Hayes QC’s refusal to make a secure accommodation order under section 25 of the Children Act 1989 for a 15-year-old looked-after child. The child had repeatedly absconded, assaulted others and attempted serious self-harm. She was being detained under the inherent jurisdiction at an unregistered and unapproved property known as N House.

The judge treated N House as another description of accommodation and concluded that the statutory risks had abated under its restrictive regime. Alternatively, he considered that moving the child to an approved unit several hundred miles from home would be disproportionate.

The appeal concerned the meaning of secure accommodation, the full criteria governing section 25 orders, the role of welfare, and whether Articles 5 and 8 required an independent proportionality assessment.

1. Appeal allowed. The refusal of the section 25 application was set aside. Since the child’s circumstances and the available placements had changed, the local authority was to decide afresh whether to pursue the application.

2. Secure accommodation means accommodation designed for, or having as its primary purpose, the restriction of liberty. Approval by the Secretary of State is a condition governing the use of a children’s home as secure accommodation, rather than part of the definition. Premises not originally designed as secure accommodation may become secure accommodation through their particular use. N House had done so because its primary purpose for this child was to prevent absconding and injury.

3. The relevant criteria under section 25 extend beyond the alternative risk conditions in subsection (1). The court must determine whether the child is within the statutory scheme; whether the proposed placement is secure accommodation; whether the subsection (1) risks are established; whether any required approval exists; whether the order safeguards and promotes welfare; and whether it is proportionate. The criteria must be satisfied at the date of the hearing. If all are satisfied, subsection (4) requires the court to make an order.

4. The welfare paramountcy principle does not apply. Welfare nevertheless remains an important criterion. The court must make its own evaluation of whether the placement safeguards and promotes the child’s welfare, while recognising that protection of the public from serious injury may outweigh welfare considerations.

5. Because a section 25 order deprives the child of liberty and interferes with private and family life, the local authority and court must independently assess proportionality under Articles 5 and 8. The benefits must outweigh the infringement of rights, and secure accommodation must remain a measure of last resort. The first-instance judge considered the benefits of N House but failed adequately to assess the therapeutic and educational advantages of the proposed approved unit.

6. Where all section 25 criteria are satisfied, reliance on the inherent jurisdiction would cut across the statutory scheme. The inherent jurisdiction remains potentially available where one or more statutory criteria are absent and its own jurisdictional conditions are met.

• Court of Appeal (Civil Division): The appeal was allowed and the refusal of the section 25 application was set aside: [2019] EWCA Civ 2025. No secure accommodation order was made because circumstances had changed; the local authority was directed to reconsider whether to pursue the application.
• Family Court at Leeds: HH Judge Hayes QC refused the local authority’s application, finding that the statutory risk conditions were not satisfied and, alternatively, that the proposed order would be disproportionate. No neutral citation is stated.