Secure accommodation and the Human Rights Act 1998

Family law By David Burrows, David Burrows, BristolTwo recently reported cases have considered the question of secure accommodation for children in the context of the European Convention of Human Rights (ECHR).

A child may only be kept in secure accommodation where he is being looked after by a local authority (that is to say, in care or voluntarily accommodated: section 22(1) of the Children Act 1989) and he has a history of absconding or is likely toinjure himself or other persons (section 25(1) of the Children Act 1989).Secure accommodation and the right to liberty Re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] 2 WLR 1141, CAIn the first case, Re K, the Court of Appeal considered a secure accommodation order in the context of a child with complex educational needs and social difficulties which made him a significant threat to others, especially in terms of sexual aggression.

He had remained in secure accommodation following a series of interim orders and appealed against the most recent.

Furthermore, he sought a declaration that section 25 was incompatible with article 5 of the convention (right to liberty and security).Any secure accommodation order is a restriction of liberty; but not every restriction of liberty comes within the terms of the article.

However, the intention of section 25, is not only to restrict liberty.

It provides a 'benign jurisdiction to protect the child as well as others...but it is nonetheless restrictive' (per Dame Elizabeth Butler-Sloss, President of the Family Division, at page 1151E).

In looking at article 5, the court was entitled to attempt to find a compatible interpretation; and here this was to be found in article 5(1)(d) which enables the court, when restricting the liberty of a 'minor', to do so 'by lawful order for the purpose of educational supervision'.

Thus, adopting a purposive approach to statutory interpretation, the court was entitled to regard secure accommodation as covered by article 5(1)(d); though wherever secure accommodation is in issue all courts must have inmind the provisions of article 5(1)(d) to ensure that compatibility with the convention is always preserved (at page 1155E).Secure accommodation and the right to a fair trial Re M (A Child: Secure Accommodation Order) (2001) The Times, 5 April, CAIn Re M the Court of Appeal considered the compatibility of the procedure for obtaining a secure accommodation order with article 6(3) of the convention.

Here a young 15-year-old mother, with drugs problems and suspected of prostitution, had discharged herself from hospital against medical advice.

The magistrates made a secure order against which she appealed, saying (among other things) that the procedure for her order was not compliant with article 6(3).

Article 6(3) covers those charged with a criminal offence.

Though loss of liberty was involved, it was held that the jurisdiction is protective (Lord Justice Thorpe referred to Re K (above) in this context) and therefore criteria applicable to criminal cases do not directly apply.

(This approach lies a little uneasily with Mubarak v Mubarak [2001] 1 FLR 698 where the Court of Appeal stressed the need to ensure compliance with article 6(3) where proceedings involved the liberty of the subject: there the judgment summons procedure).

That said, Lord Justice Thorpe took the view that any application for a secure order should comply with the five minimum requirements set out in article 6(3) for criminal defendants: for example, notice of the nature of the charge before the court, adequate time to prepare a defence, the opportunity to cross-examine witnesses and so on.Human Rights Act 1998 and the local authority care plan Re W and B (Children: Care Plan); Re W (Child: Care Plan) (2001) The Times, 7 June, CAIn two cases, heard together, the Court of Appeal has recently considered local authority care plans in the context of the Human Rights Act 1998; and in his judgment, Lord Justice Thorpe (with the concurrence of Lords Justice Sedley and Hale) has arrived at significant conclusions for the continued involvement of the guardian ad litem and the courts in cases where care plans remain subject to uncertainty at the date of what might otherwise be the final hearing.

How these conclusions can be worked out against the background of the cuts in pay for guardians ad litem after the introduction of the Children and Family Court Advisory and Support Service (CAFCASS) is another and more worrying question.

In both cases questions were left unanswered at the date of the hearing, though the judges who dealt with them felt that they must make care orders.

In respect of both Lord Justice Thorpe considered what a judge (or the family proceedings court) could do where there were short-comings in the local authority's care plan or there were issues which might shortly be explained or resolved (in the second case the children's return home was prevented by the mother's - presumably short-term - illness); and how this could be done consistently with the ECHR articles 6 (right to a fair trial) and 8 (right to respect for family life).The court held as follows:l At trial the judge should have a wide discretion to make an interim care order where resolution of a particular problem seemed imminent; though Lord Justice Thorpe stressed that such a disposal would only be in a narrow band of appropriate cases.l Evaluation of a care plan might be by reference to 'milestones' agreed by the parties or settled by the judge.

The local authority should inform the guardian ad litem (what about the parents or an older child?) of failure to achieve the milestones; and then the guardian or local authority could refer the matter back to a care judge for further directions.

This would be during the currency of a care order but not to revive adversarial issues.All this is a long way from A v Liverpool [1982] AC 363 and the framing of the Children Act 1989 which, with the circumscribing of wardship, seemed to presage the end of judicial involvement once a care order is made.This disposal of the appeal and such an approach to judicial involvement was not incompatible with the convention, which - as ever - the court should interpret purposively in the context of earlier statutory provisions.Judicial review and the local authority care plan for a disabled person R (L) v Dagenham London Borough Council (2001) The Times, 11 June, CA In a short report R (L) v Dagenham LBC finds the Court of Appeal holding that judicial review is the last resort for a challenge to a local authority's care plan in respect of a disabled person - a rather different conclusion, perhaps, than for a child as shown in Re W and ors (above).First reference should be made to the Secretary of State for Health.

(The equivalent provision in children cases for referral to the Secretary of State for Social Services is section 26 of the Children Act 1989 ).

Application for judicial review should be a last resort.One of the practical problems with this can be that reviews by a local authority and then up to the secretary of state can be slow; whereas applications to the Administrative Court can in appropriate cases be dealt with relatively speedily.

That said, practitioners will be aware that one of the principles upon which judicial review is based is that all avenues for appeal have been tried before judicial review is undertaken.

Delay may be a reason for ignoring this principle in exceptional circumstances.