Lancashire County Council v G (Unavailability of Secure Accommodation)

A court may use the inherent jurisdiction to authorise a child’s deprivation of liberty where the statutory conditions for secure accommodation are not all met, including because no accommodation qualifying as secure accommodation is available. The court must apply the requirements of Article 5 of the ECHR and treat the child’s best interests as paramount. An unregulated placement may be authorised only in exceptional and urgent circumstances, where it is the sole practical means of preventing grave harm, and for the shortest possible period. The court should require urgent scrutiny of the placement’s safety, suitability and regulatory position.

The local authority sought a secure accommodation order under section 25 of the Children Act 1989 for G, a sixteen-year-old child at very high risk of self-harm and suicide. No approved secure placement or regulated non-secure placement was available anywhere in the United Kingdom. G was due to be discharged from an adult mental health ward and the only available placement was unregulated and unwilling to seek registration.

The central issue was whether the court could authorise G’s deprivation of liberty in that placement under the inherent jurisdiction, notwithstanding the statutory secure accommodation regime and the placement’s regulatory deficiencies.

1. Relief granted. The court authorised G’s deprivation of liberty at the identified unregulated placement under the inherent jurisdiction. The order was treated as an emergency measure and was subject to an urgent review.
2. Section 25 of the Children Act 1989 establishes a statutory regime for secure accommodation. The questions identified in Re B (Secure Accommodation) [2019] EWCA Civ 2025 include whether the child is looked after, whether the proposed accommodation is secure accommodation, whether the statutory risk criteria are met, whether the accommodation is approved, whether the order promotes welfare and whether it is proportionate.
3. The statutory scheme prevents use of the inherent jurisdiction where all section 25 criteria are satisfied, because section 25(4) requires an order under that section. Here, however, no qualifying secure accommodation was available. The proposed placement was not accommodation designed for, or having as its primary purpose, restricting liberty. Accordingly, not all statutory conditions were met and the inherent jurisdiction remained available.
4. The proposed arrangements constituted a deprivation of liberty under Article 5 of the ECHR. G was unable to consent, was subject to continuous supervision and control, and was not free to leave. The court applied the principles in Storck v Germany (2006) 43 EHRR 6 and Cheshire West and Chester v P [2014] AC 896, including the need to assess the concrete circumstances and the actual restrictions imposed.
5. Although the placement was plainly sub-optimal and unsupported by the Guardian, refusing authorisation would expose G to an unacceptable risk of fatal self-harm or serious harm to others. On that narrow basis, authorisation was in her best interests. The placement could be maintained only for the shortest possible period, pending alternative provision and review of its safety, suitability and registration position.