Secure Accommodation Order applications do not need a Circuit Judge.

Private Law (Child Arrangements Programme (CAP))

02 March 2023

This article will set out the law in relation to the judicial allocation for applications under s.25 of the Children Act 1989.

I observed an application for a Secure Accommodation Order (SAO) recently, during pupillage with Becket Chambers, and I was surprised to learn that such application does not need to be heard by a Circuit Judge.  My history prior to pupillage at Becket Chambers was as a Cafcass Children’s Guardian, and all of the many SAO applications which I was previously involved in were heard by a Circuit Judge.  However, the recent hearing in question had been listed before a District Judge; as it was also the understanding of all of the advocates on the case that a Circuit Judge is required to hear a SAO. A morning of research elicited the relevant rules relating to Judicial allocation for s.25 applications.

Children Act 1989 s.25

S.25 (1) provides that if a child or young person who is in local authority care has a history of absconding from care and is likely to continue to abscond; AND if he absconds he is likely to suffer significant harm; OR if he is kept in any other description of accommodation he is likely to injure himself or other persons then the Court should place him in a secure accommodation, if a placement is available.

S.25(4) provides that if the Court determines that these criteria are satisfied, it SHALL make an order authorising the child to be kept in secure accommodation and specifying the maximum period of the SAO.

Judicial allocation for s.25 cases

The allocation of cases within the family court is regulated by the Family Court (Composition and Distribution of Business) Rules 2014, SI 2014/840, by President’s Guidance of 22 April 2014.

The relevant guidance which was issued by the President of the Family Division applies to all care, supervision and other Part IV proceedings commencing on and after 22 April 2014[1].  This remains the up to date guidance at the time of writing.

Paragraph 18 of the President’s guidance provides that ‘all care, supervision and other Part IV proceedings may be heard by any judge of the Family Court (including lay justices) who has been authorised or nominated to conduct care and supervision proceedings’.

The Family Procedure Rules and s.41 (CA 1989) provide that Part IV proceedings are ‘specified proceedings’, namely proceedings where a child is legally represented (s.41(5)) and a Children’s Guardian is appointed to represent a child (s.41(6)).  Family Procedure Rule 12.27 specifically confirms that s.25 application falls within this category[2]

Distinction between Deprivation of Liberty applications and s.25 applications

Due to limited availability of secure placements, it has been necessary for family courts to consider the issue of Deprivation of Liberty (DOLS), whereby young people’s liberty is restricted in non-secure placements.  The local authority must apply to the High Court for a DOLS application, which requires use of inherent jurisdiction.  Baroness Hale, in Cheshire West,[3] established the ‘acid test’ for determining whether someone is objectively deprived of their liberty, this is that the person is under continuous supervision and control and they are not free to leave.  The President heavily criticised non-secure DOLS placements in the case of Re T[4] because they are not approved by the DofE as being proper placements for vulnerable children nor are they protected by a statutory regime.[5]  However, in the absence of adequate secure accommodation DOLS applications have become increasingly necessary.

Supporting case law

The case of Re A Child (No Approved Secure Accommodation Available: Deprivation of Liberty) [2018] 1 FLR 621 relates to a DOLS application for a 13 year old boy.  This case highlights the concerning picture of local authorities bypassing the important safeguards provided under s.25 by applying to the High Court to use its inherent jurisdiction to place children in unregulated placements where no secure accommodation placements are available. This often means that the High Court is asked to consider depriving a child of his liberty without him being present, legally represented, and without the allocation of a Children’s Guardian.  At paragraph 4, Holman J states “S.25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates.”

[3] P (by his litigation friend, the Official Solicitor v Cheshire West
and Chester Council and another; P and Q (by their litigation friend the Official Solicitor)
v Surrey County Council [2014] UKSC 19.
[4] Re T [2018] EWCA Civ 2136.
[5] Re T para 88.

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