Restricting a child’s liberty is a serious step which is strictly regulated by Children Act 1989, s 25 and the Children (Secure Accommodation) Regulations 1991. Section 25 only applies to children who are looked after by the local authority, whether voluntarily under Children Act 1989, s 20 or under an interim care order or care order. Although applications for secure accommodation orders (SAOs) are relatively infrequent, such orders may form an important part of the care planning for a child. By their nature these applications invariably arise at emergency or interim hearings. This portable practitioner handbook provides a comprehensive analysis of such orders and contains relevant statutory material, case summaries, and practical guidance.
Foreword:
In terms of consideration by the higher courts, Secure Accommodation has become something of a Cinderella subject in recent years. One hopes that such a turn of events demonstrates that this important area of the law is settled, well understood and working well. It may, however, also be
a consequence of the fact that the current statutory scheme confines most Secure Accommodation applications to the magistrates’ court with appeals now going to the county court (rather than to the High Court, as was the position prior to 2009). The statutory scheme is due to change in April 2014 and it is anticipated that welfare-based Secure Accommodation applications, along with all other applications relating to children, will be issued in the new single Family Court and allocated to whichever level of judiciary is most appropriate for the individual application. This welcome change may well bring the issues raised in this important part of the jurisdiction relating to children into sharper focus, in a manner that is similar to that applied to the Deprivation of Liberty provisions heard in the Court of Protection under the Mental Capacity Act 2005.
In the context that I have described, the Secure Accommodation Handbook, written by Julie Stather, is a most timely and important publication. The volume comprehensively covers all aspects of welfare-based Secure Accommodation Orders and helpfully sets the modern law in its historical context. In addition to a clear and concise description of the black-letter law, the work provides a detailed practical guide to its operation and is supported by a full summary of the top two dozen ‘need to know’ cases.
Although comparatively few Secure Accommodation Orders are made each year by the family courts, the impact of each and every one of those orders upon the damaged and vulnerable young individual who is on the receiving end of this ‘welfare’ decision is hard to understate. Every
professional involved in these important cases owes both the child and the State a duty to understand fully the legal parameters within which the Secure Accommodation jurisdiction is operated. This handy volume should be required reading both for those who are currently undertaking this work and for those who, after the introduction of the single Family Court, will be coming to it for the first time.
The Rt Hon Sir Andrew McFarlane
Lord Justice of Appeal
August 2013
Main Introduction
Chapter 1: Introduction - The History of Secure Accommodation
----------------------------
Introduction
A secure accommodation order is the statutory means by which society, acting through the local authority, attempts to protect our most vulnerable young people from harming themselves or others. The making of a secure accommodation order authorises the local authority to place a child into a secure children’s home or other secure facility, namely a locked environment which restricts their liberty. Given the level of interference with the human rights of the children accommodated in this manner, such placements are only to be made in the gravest of circumstances and only after careful consideration by those charged with making the decision to place. In Re M (A Minor) [1995] 1 FLR 418, Butler-Sloss LJ summarised the gravity of such orders as follows:
‘No one can doubt that the restriction upon the liberty of a child, generally for his own good (subject to s 25(1)(b)), is a serious step which must be taken only when there is no genuine alternative which would be appropriate and … as a last resort.’
A child can be placed into secure accommodation either via the welfare route (by an order of the family court pursuant to an application by the local authority), or via the justice route (on remand by order or by sentence of the criminal court through the youth justice system). Children can also be placed temporarily into a secure environment by the local authority, the National Health Service trusts or local education authorities without an order of the court until such time as an application has been made. Therefore there is a wide range of people and agencies involved in the decision as to whether a child requires to be placed in a secure unit.
This book seeks to provide a comprehensive guide to the placement of children in secure accommodation under the welfare route, although the grounds for placement under the justice route are also set out.
As at 31 March 2012, 239 children were accommodated in secure children’s homes in England and Wales (source SFR 16/2012, DfE).
The law regarding secure accommodation orders comprises statute, statutory instrument and case-law. This handbook states the law as at 31 July 2013.
----------------------------
Chapter 1: Introduction - The History of Secure Accommodation
Secure units as we know them today are the result of centuries of tension between the principles of punishment, containment and treatment insofar as they relate to our most troubled youngsters.
The original idea of locking up children can be traced as far back as, and indeed further than, 1838 when the Parkhurst Prison for boys was established. The development of prisons especially for children was an attempt to shield them from the influences of the career criminals in the adult prisons, but the conditions were shocking and entirely punitive. The boys were required to wear leg irons until 1840.
At around the same time, efforts were being made to provide some security of accommodation and education for the children of the poorest in society in reformatory schools. Within these schools solitary confinement was used as a form of punishment and bars over the windows and locked doors were standard. In many cases, those boys that were impossible to discipline and without working skills would be despatched to the mercantile marine which provided them with a purpose and a strict regime to ‘bring them into line’. At this stage in history there was a clear difference between ‘criminal’ children who needed punishment and confinement and poorer children who needed education and
confinement.
By the turn of the twentieth century, the readiness to lock up youngsters was becoming a source of comment if not of concern. Winston Churchill addressed the House thus as Home Secretary in 1908:
‘I would ask the House to consider specifically the case of youths between sixteen and twenty one. There is a disaster in sending a lad of that age to prison and an old prison visitor told me that they often cry the first time. It is an evil which falls only on the sons of the working class. The sons of other classes may commit many of the same kinds of offence and in boisterous moments, whether at Oxford or anywhere else, may do things for which the working lad would be committed to prison. Let the House remember thatthere are at least five thousand lads committed to prison for minor offences and rowdyism each year.’ (Hansard 20 July 1910)
Churchill clearly identifies the ‘demonisation’ of the working class and the highly punitive (as opposed to reformative) attitude towards the misdemeanours of its young which lead to the rapidly swelling prison generation and the self-perpetuation of the growth of a criminal youth.
Moving forward from thinking such as this, there was a general trend towards considering the welfare of the child. The Children’s Act of 1908 provided the criminal courts dealing with children with a variety of options in addition to imprisonment and allowed those charged with the task of sentencing to balance the welfare of the defendant child with justice for the victims of crime. The move was echoed in the institutional settings, with closed blocks being attached to open ‘approved schools’. The first signs of a change in attitude from ‘lock them up and throw away the key’ were emerging.
