In this article we will consider the powers of the Family Court to deprive a child of their liberty by use of secure accommodation orders and other orders with reference to the recent guidance in this area provided by the High Court in the cases of Re A-F (Children)* and Re A-F (Children) (No 2)**.
Secure accommodation orders should only be sought by local authorities as a measure of last resort. There are very strict criteria that must be met for the court to grant a secure accommodation order and any order must be for the shortest possible period of time. Secure accommodation orders allow a local authority to hold a child against their will in a secure establishment. This is obviously a very serious order to make and engages a number of important issues, including the child’s human right to liberty and security as enshrined in article 5 of the European Convention on Human Rights (ECHR).
The power for a local authority to deprive a child of their liberty can be derived from one of three sources: s25 Children Act 1989; the inherent jurisdiction of the High Court; or, if the child is aged 16 or 17 and lacks capacity, the authority of the Court of Protection.
s25 Children Act 1989 allows children to be held for a period of time in secure accommodation without a court order. The maximum period allowed is 72 hours (whether or not consecutive) in any period of 28 consecutive days^. For any period of confinement beyond this the local authority must apply for a court order. For s25 to apply a child must be a ‘looked after child’ (subject to a care order or an agreement under s20 Children Act 1989). The criteria for determining whether or not a child should be held in secure accommodation are found at s25 (1) (a) & (b). The criteria are that either: the child must have a history of absconding and are likely to abscond from any other description of accommodation, and if they abscond, they are likely to suffer significant harm; or that if they are kept in any other description of accommodation they are likely to injure themselves or other persons.
The inherent jurisdiction of the High Court can be used to deprive a child of their liberty when the case falls outside of s25 for some reason. Cases that would fall outside of the ambit of s25 include those where: the child is not ‘looked after’ by the local authority, the deprivation of liberty is incidental to the accommodation’s primary purpose, or the accommodation is a non-approved children’s home. The inherent jurisdiction is most often used when a child has some health impairment that requires particular accommodation to meet those needs and keep the child safe and secure.
In the High Court case of Re A-F (Children) Munby P (as he then was) considered the issue of deprivation of liberty in detail and reviewed the current case law on this matter. He noted that whether or not there is a deprivation of liberty turns on whether or not there is confinement. Confinement, in turn, is determined by ascertaining whether there is, when viewed objectively, ‘confinement in a particular restricted place for a not negligible length of time’. It was noted that courts need to look at whether there is ‘complete supervision and control’ and whether the child is ‘free to leave’ the place where they live. However, restricting a child’s movement does not necessarily involve a deprivation of liberty engaging article 5 ECHR rights. This is because parents and carers may well need to restrict a child’s movements and/or supervise and control them during normal, everyday activities. The surrounding circumstances and characteristics of the child will be key in determining whether or not this engages article 5 rights. Munby P provides a ‘rule of thumb’ in Re A-F (Children) in respect of 10, 11 and 12 year olds, which demonstrates how the younger the child is, the higher the level of supervision and control that would likely be appropriate and not amount to a deprivation of liberty.
In June 2018 in his Judgment given at the final hearing of Re A-F (Children) (No 2) Sir James Munby looked at the procedural aspects of secure accommodation orders, deprivation of liberty orders and orders enabling confinement as in the best interests of the child. He provided guidance about the considerations to be made to determine whether cases should be heard in the Family Court (or Family Division of the High Court) or transferred to the Court of Protection (if a child is 16 or 17 years of age). Precedent orders are annexed to the Judgment with the aim of providing consistency in these cases. In terms of whether or not a case should be transferred to the Court of Protection, a useful list of factors to be considered is enclosed in the Judgment. It is obvious that each case will turn on its facts, but it does appear that the Family Court would be the more suitable venue for these cases where there are, or have been, family law proceedings in relation to the child and the framework of public law family proceedings provide powers and resources that may otherwise not be available and the family court is already cognisant of the child’s history and needs.
Amanda Cattle (Partner) & Edward Nicklin (Trainee Solicitor)
* Re A-F (Children) EWHC 138 Fam
** Re A-F (Children0  (No 2) EWHC 2129 (Fam)
^ Children (Secure Accommodation) Regulations 1991, SI 1991/1505, Reg 10