A number of recent court judgments have highlighted the severe lack of secure accommodation in England and the growing trend of depriving children of their liberty in unregulated and unregistered settings. We covered one of these cases in the May issue of our legal digest. This month, we are looking at another such case and use it as an opportunity to explore the criteria that have to be met for a secure accommodation order (SAO) to be made. We also look at the use of inherent jurisdiction in deprivation of liberty applications.
Acute shortage of “properly registered secure accommodation”
This case concerns Z, a 13-year-old child who had been living in a secure children’s home for seven months before the home informed the local authority responsible for Z’s care that it was no longer “able to meet Z’s needs or to keep Z safe”.
Z had been placed in secure accommodation following a fairly rapid change in needs and behaviour that included running away, “serious actual and threatened physical harm to others, self-harm, and damage to property”. Psychological and psychiatric assessments concluded that Z’s behaviour was unlikely to be a result of mental illness and “may well be due to some sort of trauma”.
Faced with an urgent need for an alternative placement and suitable care and supervision arrangements, and failure to identify appropriate accommodation despite “extensive searches”, the local authority applied for an order under the inherent jurisdiction of the High Court for authorisation of deprivation of liberty. The proposed accommodation to be used for the purpose of restricting Z’s liberty was a council home rented by the local authority where Z would be placed “together with four members of staff who are available to care for and contain Z at all times”.
Restrictions on Z’s liberty at the rented accommodation, described as “draconian” by the judge, included: not being allowed to be out at all, except for appointments under an escort of three staff; being locked in a bedroom at night; the house being locked at all times; and “being stripped of all loose items, and restrained in the event of attempted self-harm, attempts to harm others, or to escape”. Due to the nature of the arrangements, there was no educational provision and no therapeutic support plan in place at the point of application.
The application was opposed by Z’s parents who wanted Z to return home but supported by Z’s guardian who believed that Z’s parents would be unable to meet Z’s needs or keep Z safe. During a phone conversation with the judge, Z expressed a wish “for life to return to being as normal as soon as possible”.
Citing relevant case law, the judge confirmed that absence of appropriate accommodation did not remove the requirement to verify that criteria set out in Section 25 of the Children Act 1989 are satisfied before an order can be made.
The judge also considered that the criteria required for the use of inherent jurisdiction were met (we discuss this below in the ‘key takeaway section’).
Making the requested order on the basis that it was “better than any of the other available options”, the judge acknowledged that “it would be much better for Z to be placed in properly registered, regulated secure accommodation with specialised staff […] where Z can benefit from therapy and education”. The judge requested the case to be returned to court within two weeks of the judgment.
It is noteworthy that the judge invited a representative of the Secretary of State for Education to attend the hearing to see “if there was any possible assistance or suggestions that could be offered in circumstances where such a young and vulnerable person is without a suitable placement” (placements of children under the age of 13 in secure accommodation require the approval of the Secretary of State – Regulation 4). The response from the attending representative was that “there is nothing that can be done and the local authority will have to keep searching”.
You can access the full judgment here (10 July 2020).
The six questions a court must explore before making a secure accommodation order
In  EWCA Civ 2025 (paragraph 98), Lord Justice Baker stressed that both the welfare of the child and proportionality of measures to be imposed are critical in making secure accommodation orders. Lord Justice Baker listed six questions that a court must explore in order to determine whether Section 25(3) and (4) of the Children Act 1989 are satisfied:
(1) Is the child being “looked after” by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7?
(2) Is the accommodation where the local authority proposes to place the child “secure accommodation”, i.e. is it designed for or have as its primary purpose the restriction of liberty?
(3) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?
(4) If the local authority is proposing to place the child in a secure children’s home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? […]
(5) Does the proposed order safeguard and promote the child’s welfare?
(6) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?
The Children Act 1989 and deprivation of liberty – Section 25 vs inherent jurisdiction
Section 25: Use of accommodation for restricting liberty is the part of the Children Act 1989 specifically relating to the deprivation of liberty of a child or young person. Supplemented by the provisions and safeguards within The Children (Secure Accommodation) Regulations 1991, Section 25 sets out specific and clear criteria that have to be met and verified by a court in order for a placement in secure accommodation to be authorised.
The 1991 Regulations define “secure accommodation” as “accommodation which is provided for the purpose of restricting the liberty of children” (Regulation 2); the Regulations also state that accommodation in a community home must not be used as secure accommodation unless it has been approved by the Secretary of State (Regulation 3).
In the case summarised above, the local authority sought a number of “draconian” restrictions on the child’s liberty but the placement was to be made in accommodation that was not approved as secure accommodation. For this reason, the application was made under so called inherent jurisdiction.
Inherent jurisdiction means that the court has the power to issue a decision in a case where there is no statutory basis for what is being asked. In other words, a decision is needed from the court but there is no specific law that can be used to justify the application being made. Only the High Court can use (“exercise”) inherent jurisdiction.
Before an application for the use of inherent jurisdiction with respect to a child can be made, a local authority must apply for permission from the court (“leave of the court”).
The court can give permission only if:
* There is no other order that can be applied for; and
* The court believes that unless inherent jurisdiction is used, the child “is likely to suffer significant harm” (Section 100(4) of the Children Act 1989).