Family Law

It is sometimes necessary for local authorities to seek to place a looked after child in what is called secure accommodation. This is designed to protect them from injuring themselves or others and/or absconding from other types of accommodation and suffering significant harm as a consequence.

Unfortunately, many family law practitioners will have been involved in cases where an application has been made for a secure accommodation order but at the initial hearing of that application no suitable secure accommodation unit has been identified.

In such cases, all may agree that the test for making a secure accommodation order set out in Children Act 1989, s.25 (1) (a), is made out:

‘1) Subject to the following provisions of this section, a child who is being looked after by a local authority or local authority in Wales may not be placed, and, if placed, may not be kept, in accommodation in England provided for the purpose of restricting liberty (‘secure accommodation’) unless it appears –

a. That –

i. He has a history of absconding and is likely to abscond from any other description of accommodation; and

ii. If he absconds, he is likely to suffer significant harm, or

b. That if he is kept in any other description of accommodation he is likely to injure himself or other persons.’

Clearly, if there is no suitable provision available to move a child into, that child will remain at risk of significant harm and/or remain likely to injure themselves or others.

In this regard, I have recently been involved in a case where this happened with disastrous consequences for the child.

Sadly, this was not an isolated case and there have recently been a trilogy of judgments released within the last 2 or so months in which the ‘gap in the system created by the serious shortage in secure accommodation to keep [young persons] safe’ has been highlighted (see Re M (Lack of Secure Accommodation) [2017] EWFC B61 and also see X (A Child)  (No. 3) [2017] EWHC 2036 (Fam) and London Borough of Southwark v F [2017] EWHC 2189 (Fam)).

I do not intend to rehearse the facts of these cases but the enduring theme is that the test for making a secure accommodation order in each case was clearly made out and there was little to no criticism made of the local authorities involved as they had all undertaken painstaking searches for beds in secure accommodation units across the country.

In particular, in the M case the referral had gone out to over 75 residential providers in England, Scotland and Wales and the social workers informed the judge in that case that there was a shortage of beds nationwide and there is (or was then) a waiting list of 23 children waiting for a secure placement.

Further, a concerning feature in the F case was that the local authority involved had been searching for a period of two weeks to identify a secure accommodation unit but none of the advocates, social services or the guardian in the case had been able to identify anyone within the central agency for monitoring and allocating places in secure accommodation units (Secure Children’s Homes who operate along with the National Secure Welfare Commissioning Unit) prepared to acknowledge ultimate responsibility. Hayden J described their structures as ‘opaque [when] they ought to be transparent’.

Also worrying was that, whilst a bed had been made available at one secure unit, this could not be allocated at the time Hayden J delivered judgment because there was not sufficient staff or resources available to support the placement. This created an ‘impasse in respect of which [Hayden J was] unable to achieve a resolution’.

The judgments in M and F both incorporate submissions made by counsel before the President in the X case before going on to detail the President’s response to these submissions:

‘“A central concern in this case, which cannot be ignored, is not only the complete inadequacy in respect of available child and adolescent mental health placement provisions, but also the apparent lack of availability of any suitable temporary placements.

To say the current situation in England and Wales for children with [X]’s (it is accepted unusually high) level of needs is of concern is perhaps an understatement. This is a child who is subject to a care order and who is accordingly owed support by the local authority pursuant to its duties to her as a looked after child. This is also a child who has significant mental health and emotional issues, which make her behaviours both dangerous and uncontrollable. More than this, she is highly vulnerable. Despite all of these factors, she has been placed in a situation where weeks and months have gone by with there being no placement available for her countrywide … The provisions for placement of children and adolescents requiring assessment and treatment for mental health issues within a restrictive, clinical environment is worryingly inadequate. One has to question what would have happened in this case had [X] not received a criminal sentence? Given the level of her behaviours, where would she have been placed? What provider would have accepted her given that secure units were unwilling to do so prior to her receiving a custodial sentence?

This child has fallen into a ‘gap’ in the system. Her behaviours are so extreme that no residential or supported living placement sourced by children’s services can meet her needs, whilst there is clearly inadequate provision from the NHS and health services of placements, which can manage her mental health needs. Her time at [ZX] has amply demonstrated that placement in secure accommodation cannot meet her needs and is inappropriate.

… This case has demonstrated the inadequacy of the current secure accommodation resources in England and Wales (leading to this local authority having to place in Scotland) and has now gone on to demonstrate the inadequacy of suitable provisions for children with high level of mental health issues, which necessitate assessment and treatment in a secure setting. Placements for vulnerable children and adolescents, be it within secure accommodation of mental health provisions, are a scarce resource.”

[The President’s response] “I agree with every word of that. My only cavil is that Mr Jones’ language is perhaps unduly moderate. The lack of proper provision for X – and, one fears, too many like her – is an outrage (paras 26 and 27)”.’

The President went on to state:

‘If, we, the system, the society, the state, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.’

So who bears responsibility for the lack of available placements?

Each judgment is clear: the responsibility lies with the Minister of State for Education and notes of all three judgments were directed to be sent immediately upon being handed down to her.

It is a sorry state of affairs, which we can only hope will improve as a result of the above judgments.