Two questions too many? Balancing a child’s right to liberty within secure accommodation orders

Polly Rodin, caseworker in the family team analyses this important case about secure accommodation orders and the validity of a child’s consent to such an order. Weekly law Report: T (A Child) [2018] EWCA Civ 2136 In this appeal case the Court considered the circumstances in which the High Court has an inherent jurisdiction to make orders to place children in secure accommodation units and whether the relevant child’s consent affects this decision. The Court has a statutory power to make such orders under s.25 of the Children Act, when the accommodation unit proposed has been, among other things, approved by the Secretary of State. However, this case looked at the Court’s power to make orders for units falling outside this authorised list, as the demand for secure accommodation rises. As background, the appeal involved a 15 year old who was the subject of a Care Order. Crucially she was considered to be Gillick competent and was consenting to the accommodation placement being proposed by the Local Authority.In the initial case, Mr Justice Mostyn, stated that, on principle, to make an order outside of statutory powers, under the Court’s inherent jurisdiction, a child should not be consenting to the proposed placement. Indeed, to impede the freedom of a consenting child by an overly restrictive Court order would be a breach of their Article 5 right to liberty. However, in this case the order for accommodation was granted, as although the child was consenting, it was held her consent was not “authentic” and “enduring”. Further, when this first placement broke down and the Local Authority sought an order for a new secure accommodation unit, to which the child was again consenting, the Judge granted it, in reliance upon his earlier judgement. In the appeal the child challenged both orders, with the case raising the question of whether lack of valid consent should be a prerequisite to the use of the Court’s inherent jurisdiction to grant secure accommodation. At the appeal it was found that when considering a child’s Article 5 right to liberty, in the majority of cases, a person’s consent would prevent an order being a deprivation of the same. However, the Court held that while lack of consent is therefore essential to deciding if Article 5 rights have been obstructed, “lack of consent is not a jurisdictional requirement either for making a statutory secure accommodation order or for the High Court to exercise its inherent jurisdiction to authorise a local authority to restrict a young person's liberty”. On that basis the grounds for appeal dissipated and the case was dismissed. However, the appeal set the important precedent that while the presence or absence of a child’s consent can be central to deciding if there is a potential breach of convention rights at stake, that assessment must remain entirely independent of the decision that the Court must make when faced with an application for an order authorising placement in secure accommodation.

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