AR (A Child), R (On the Application Of) v The London Borough of Waltham Forest

A local authority’s duty to respond to a police request for secure accommodation under Police and Criminal Evidence Act 1984, s 38(6), requires a reasonable system capable of responding to such requests. It does not require the authority to maintain its own secure accommodation or guarantee that a placement will always be available. The court must assess the system in its practical and resource context, while recognising the policy of avoiding children’s detention in police cells. Centralised arrangements, pooled resources and out-of-hours procedures may be lawful where they enable requests to be considered and do not make a positive response impossible. The high-level sufficiency duty under Children Act 1989, s 22G, does not add a proactive duty to provide local secure accommodation for short-term PACE placements.

AR, a looked-after child aged 16, was charged with serious offences and refused bail because of the risk he posed to the public. The police requested secure local-authority accommodation under Police and Criminal Evidence Act 1984, s 38(6), but Waltham Forest concluded that no suitable secure placement could be sourced and that it was impracticable to transport him to a distant provider before his next-morning court hearing.

AR brought judicial review proceedings alleging a systemic breach of the duty under Children Act 1989, s 21(2)(b). He argued that the authority’s use of the Secure Accommodation Network and a shared out-of-hours service guaranteed a negative response to lawful requests. The central issue was whether Waltham Forest had a reasonable system for responding to requests for secure accommodation.

1. The claim was dismissed. Waltham Forest had not breached its statutory duty under Children Act 1989, s 21(2)(b).
2. Following R (M) v Gateshead Metropolitan Borough Council [2006] EWCA Civ 221, the authority had an absolute duty to receive and provide accommodation when requested, but retained a discretion as to whether the accommodation offered should be secure. The duty required a reasonable system enabling the authority to respond to requests for secure accommodation. It did not require an absolute guarantee that secure accommodation would be available.
3. The system had to be assessed in its practical context. Relevant matters included the rarity and short duration of PACE requests, the need to assess the statutory criteria, transport and handover arrangements, the next-morning court appearance, the availability and licensing of secure children’s homes, and competing demands on finite public resources.
4. Waltham Forest’s use of the Secure Accommodation Network, the Concordat, the London Protocol and a shared emergency duty team was rational. The arrangements did not establish that the authority could never provide secure accommodation or that no reasonable authority could have adopted them. The absence of successful placements did not prove a systemic breach.
5. The local authority could discharge its duty by offering non-secure accommodation if the decision-maker properly considered the statutory criteria and exercised the discretion lawfully. The police would then decide whether to accept that accommodation or continue detention.
6. Children Act 1989, s 22G, was a high-level duty concerning accommodation for looked-after children within the authority’s area. It did not impose the asserted proactive duty to evaluate and secure local provision of short-term secure PACE accommodation, and could not be used to enlarge the duty recognised in Gateshead.
7. The court declined to admit late further evidence served after the hearing. Even if the claim had been well founded, declaratory relief would not have been granted in light of the ongoing work to address the wider shortage of secure accommodation.