Introduction

The case B (Secure Accommodation Order), Re (Rev 1) ([2019] EWCA Civ 2025) presents a pivotal examination of the application of Section 25 of the Children Act 1989 concerning secure accommodation orders. This appeal, lodged by a local authority against a prior refusal by HH Judge Hayes QC, centers on determining the appropriate legal framework for placing a vulnerable 15-year-old girl, referred to as "B," into secure accommodation. The key issues addressed include the definition of "secure accommodation," the criteria for such orders, the role of the child's welfare in judicial decisions, and the necessity of a proportionality assessment under the European Convention on Human Rights (ECHR).

Summary of the Judgment

The Court of Appeal critically evaluated HH Judge Hayes QC's refusal to grant a secure accommodation order. The core contention was whether the accommodation at "N House," an unapproved facility not designated as a secure children's home, met the legal standards defined under Section 25. The appellate court ultimately determined that Judge Hayes erred in his interpretation of "secure accommodation" and the requisite proportionality analysis. Consequently, the refusal was overturned, emphasizing that proportionality and welfare assessments are integral to such judicial decisions.

Analysis

Precedents Cited

This judgment extensively references several foundational cases that have shaped the interpretation of secure accommodation and the balancing of child welfare and human rights:

• A Metropolitan Borough Council v DB [1997] 1 FLR 767: Emphasized that the essence of secure accommodation lies in the restriction of liberty, irrespective of the designated purpose of the facility.
• Re C (Detention: Medical Treatment) [1997] 2 FLR 180: Differentiated between secure accommodation for treatment and mere restriction of liberty, underscoring the importance of the primary purpose.
• Re D (A Child) [2019] UKSC 42: Provided critical observations on the definition of secure accommodation, reinforcing that both the accommodation's purpose and the method of its provision are essential considerations.
• Re M (Secure Accommodation Order) [1995] Fam 108: Established that the child's welfare, while important, is not the paramount consideration under Section 25, distinguishing it from other sections of the Children Act.
• Re SS (Secure Accommodation Order) [2014] EWHC 4436 (Fam): Highlighted the necessity of proportionality in secure accommodation decisions, aligning with human rights considerations.

Legal Reasoning

The court's reasoning focused on a multifaceted interpretation of "secure accommodation" under Section 25:

• Definition of Secure Accommodation: The court affirmed that secure accommodation is fundamentally about the restriction of liberty. It must be designed for or primarily intended to restrict a child's liberty. The lack of formal approval by authorities like Ofsted does not inherently exclude a setting from being classified as secure accommodation if it effectively restricts liberty.
• Relevant Criteria for Orders: The court outlined a comprehensive list of criteria that must be satisfied, including the child's history of absconding, the likelihood of self-harm or harming others, and whether the accommodation is approved by the Secretary of State.
• Role of Welfare: Contrary to previous interpretations, this judgment stresses that while welfare is not the paramount consideration under Section 25, it remains a significant factor. The court must evaluate whether the proposed accommodation promotes the child's welfare.
• Proportionality under the ECHR: Integrating human rights principles, the court underscored that any deprivation of liberty must be proportionate. This involves assessing whether the benefits of the accommodation outweigh the infringement on the child's rights, ensuring compliance with Articles 5 and 8 of the ECHR.

The appellate court found that Judge Hayes failed to adequately assess whether the arrangement at N House met the secure accommodation criteria and neglected the proportionality analysis, leading to an incorrect refusal of the application.

Impact

This judgment has profound implications for future cases involving secure accommodation orders:

• Clarification of Secure Accommodation: Courts must adopt a nuanced understanding of what constitutes secure accommodation, focusing on the primary purpose of liberty restriction rather than formal designations or approvals.
• Enhanced Proportionality Analysis: Judicial decisions will increasingly require a thorough proportionality assessment, ensuring that the child's rights under the ECHR are balanced against the necessity of the accommodation.
• Flexibility in Placements: Local authorities are encouraged to explore creative and less restrictive accommodations, ensuring that secure placements are genuinely a last resort and proportionate to the child's needs.
• Compliance with Human Rights: Reinforces the obligation of courts and local authorities to adhere to human rights standards, embedding proportionality and welfare assessments into the core decision-making process.

Complex Concepts Simplified

Secure Accommodation

Secure Accommodation refers to any living arrangement for a child that is specifically designed to restrict their freedom of movement. This includes measures such as locked doors, constant supervision, and controlled access to the outside world. The primary goal is to ensure the child's safety and prevent them from causing harm to themselves or others.

Deprivation of Liberty

Deprivation of Liberty is a legal concept under Article 5 of the ECHR that defines scenarios where an individual's freedom is lawfully restricted. In the context of children under Section 25, a deprivation of liberty occurs when a child is kept in an environment where they cannot leave without supervision or with significant limitations on their freedom.

Proportionality

Proportionality is a principle used to ensure that any restriction imposed on an individual's rights is balanced against the necessity and benefits of the action. In secure accommodation cases, proportionality assesses whether the benefits of restricting a child's liberty (such as ensuring their safety) outweigh the negative impact on their personal freedoms and family life.

Conclusion

The Court of Appeal's decision in B (Secure Accommodation Order), Re (Rev 1) underscores the evolving legal landscape surrounding secure accommodation orders under Section 25 of the Children Act 1989. By affirming that the definition of "secure accommodation" hinges on the primary purpose of liberty restriction and integrating a robust proportionality analysis, the judgment advances a more balanced and rights-respecting approach. This not only ensures the protection and welfare of vulnerable children like B but also aligns with overarching human rights standards. Moving forward, courts and local authorities must navigate these clarified criteria diligently, fostering placements that are both necessary and proportionate, thereby safeguarding the child's best interests while respecting their fundamental rights.