O (A child) [2018] EWFC B60 is the latest judgment attempting to underline the Court’s growing concern around the substantial lack of secure accommodation placements for children at risk of significant harm or absconding.

In this case the Local Authority held a care order for 16 year old O. After a spate of absconding from placement, continued involvement with gang violence and an overnight stay in Police Custody, a secure accommodation order was sought to protect O from an obvious significant risk of harm. The Court was prevented from making an order under section 25 of the Children Act 1989 as the Local Authority were unable to find any placement in the 6 weeks prior to the hearing. The Court was left in some difficulty. Only in exceptional circumstances can an order be made without the child being placed in accommodation first (Re AK (Secure Accommodation Order) [2000] 3 FCR 289). Without a placement the order would be ineffective as the time limit specified in the order would continue even before secure accommodation for O was obtained.
In a scathing judgment, HHJ Lazarus summarised her concerns about the current state of secure accommodation provision at paragraphs [1]-[4]:

“1. This case represents yet another sorry example of the state failing a child in need, and highlights the impact of there being far too few secure accommodation unit places for children like O.
2. In summary, I have been driven not to grant a secure accommodation order for a child who needs one due to the unavailability of appropriate placements.
3. That is clearly a wholly unacceptable situation. He is a child in local authority care who is at risk from his disordered background and the depredations of gang life. This is the opportunity to help him and make him safe, and it is being lost.
4. Like my colleagues before me, whose published judgments increasingly feel like heads banging against brick walls, I am dismayed, frustrated and outraged; and to quote the former President of the Family Division from last year’s case of Re X, I am deeply worried about the risk that ‘we will have blood on our hands’. “

The Local Authority advised the Court that there were, at the time, 25 children all competing for the next available placement. Clearly Parliament had not envisaged children who needed immediate protection would have to wait weeks, or in O’s case, months for secure accommodation; although admittedly there is some protection afforded by Local Authorities’ power to hold children in secure accommodation for 72 hours should a place become available. However, neither the courts nor Local Authorities appear to have much control over the way in which children are part of a “distorted sellers’ market”, cherry picked by accommodation providers depending on their behavioural demands.
In light of the Local Authorities’ struggle to obtain placements for children within the statutory scheme, there have been an increasing number of applications to the High Court to approve the detention of children using its inherent jurisdiction. This was addressed in the recent appeal T (A Child) [2018] EWCA Civ 2136, where it was asserted that the use of the inherent jurisdiction for this purpose created a parallel framework to that found in Section 25.  In his judgment, the President of the Family Division described the present situation as “fundamentally unsatisfactory.” The Court of Appeal subsequently forwarded their judgment to a number of relevant individuals and committees, from the Secretary of State for Education to the Commissioner for Children, calling for scrutiny of the wider issues raised in T. If children are left without access to statutorily-approved secure accommodation they are increasingly likely to be subject to an application under the inherent jurisdiction, a route which wholly circumvents the safeguards set out in section 25. The steady stream of heavily critical judgments suggests that the demand for further scrutiny needs to be addressed sooner rather than later.

Sarah Beasley