I recently ended up in the Court of Appeal representing a teenage client directly having obtained permission to appeal a Deprivation of Liberty order made under the inherent jurisdiction of the High Court . The DOL order had been made after four successive Secure Accommodation orders .
The following action was necessary to achieve the position whereby it had to be accepted that the criteria for secure accommodation were no longer met and it was wrong to make a Deprivation of Liberty Order to continue to keep the child in secure accommodation :-
- Most local authorities , understandably, breath a huge sigh of relief once a child they have struggled to keep safe is placed in secure accommodation under Section 25 of the Children Act 1989. The local authority needed reminding immediately and repeatedly to actively gather the information they would require to effectively review if the criteria for keeping the child in secure continued to be met.
- The local authority had to be pursued to arrange the secure review meeting that is required to take place and at which the criteria for keeping the child in secure accommodation for any further time must be considered . The child’s solicitor had to attend the Secure Review Meeting with the child client and ensure that the criteria were actually considered and a clear decision and explanation provided as to whether the criteria for secure accommodation continues to be met.
- The local authority had to be pursued to follow the experts recommendations for therapeutic input for the child , to identify non secure accommodation and for an exit strategy from secure for the child.
- Communication had to be established with the secure unit to gather information from them and the child client regarding progress made by the child which may support a decision that the criteria for secure are no longer met and that information provided to the local authority and then the court.
- The information that the local authority’s placement team was providing to potential non secure accommodation providers concerning the child’s past behaviours and progress needed to be to be obtained to establish that the information the local authority was providing was misleadingly negative and omitted progress made by the child and had hindered the identification of a non secure placement for the child.
- The children’s guardian who was separated from the child had to be kept updated and her social work expertise and knowledge gathered and provided to the court.
- The child client’s attendance at court hearings when their liberty was to be decided had to be pursued in the face of the local authority’s reluctance for the child to attend court.
My child client was able to tell the court what they thought and wanted , unlike some vulnerable child clients. “It’s like a prison” the child said to the Judge when , describing the secure accommodation unit where they had been held for 15 consecutive weeks. Those words clearly explained and described the injustice at the centre of this appeal, the denial of an essential entitlement, the Right to Liberty. The child client expressed this view to the judge who heard the Local Authority’s fifth application to keep the child in secure accommodation. The court decided that although it could not make a further Secure Accommodation Order ( the criteria for secure successfully shown no longer to be met) that it could make a Deprivation of Liberty Order for a period of a further two weeks and the child client was sent back with their escort to the secure unit for at least another two weeks. The court was referred to the use of the inherent jurisdiction of the High Court , the “ benign” use of deprivation of liberty in respect of the case of AB (A child: Deprivation of Liberty) [2015] EWHC 3125 . However as I set out in my position statement/skeleton argument for the hearing the facts of my child client’s case were wholly different to that of AB. In that case the court sought to be able to maintain a child at a placement using it’s inherent jurisdiction to deprive the child of his liberty. It being noted that the child “at this time , would not wish to move to another residential establishment”. In my child client’s case they wished to move out of a secure accommodation unit to a non secure placement and the only thing preventing that from happening was the fact the local authority had not identified an appropriate non secure placement and delayed in implementing a transition plan out of secure.
My oral application that day for permission to appeal the order was refused. And through further communication with the secure unit’s Deputy manager I learned that a manager in the Placement team at the local authority had indicated to the Deputy Manager of the secure unit that if they could not identify a non secure accommodation unit that would take my child client prior to the expiry of the two week Deprivation of Liberty Order , they would “apply for an extension of the order”.
The appeal
The criteria pursuant to s.25 of the Children Act 1989, which authorises the making of a secure accommodation order was no longer satisfied, so the court invoked it’s inherent jurisdiction under Section 100(4) Children act 1989 to make a further order to continue to deprive the child client of her liberty. I was fortunate to be referred to Alexander Laing of counsel by one of his colleagues at Coram Chambers as having particular expertise in this area and we pursued permission to appeal in the Court of Appeal, to have the Deprivation of Liberty Order set aside.
Permission was granted as the matter was considered to have a real prospect of success whilst raising an important point of principle, as the liberty of the subject child was at stake. The written submissions on behalf of the applicant, which were described by LJ Elias as “detailed, very cogent and very good” argued that a child cannot be imprisoned in circumstances where the statutory safeguards for doing so are not satisfied. They also asked the question of whether a lack of resources, on the part of the Local Authority, should cause a child to be benignly imprisoned where the statutory safeguards for that benign imprisonment are not met.
In the interim between the deprivation of Liberty order being made and the listed appeal hearing, the child was released from their secure accommodation unit and transferred to a non-secure placement. As a result, despite the matter being noted by the Court of Appeal as raising “interesting and important matters of public interest”, the Court of Appeal decided not to determine the full appeal. The child was released from the secure unit the day before we were listed for hearing in the Court of Appeal, despite the local authority pursuing a further period of deprivation of liberty, upon the expiration of the two week Deprivation of Liberty order and the appeal therefore became an academic appeal. Nonetheless the result of the appeal , I believe, was the child’s release from secure accommodation .The child client is now doing well in a non-secure residential home where I have visited the child and obtained their instructions regarding pursuing a claim for damages in the High Court.
This case significantly highlighted the issues surrounding placing young people in secure accommodation units and at what point a child’s right to liberty may be damagingly compromised.
Amanda Cattle – Partner
