Case No: B4/2018/2719
Neutral Citation Number: [2018] EWCA Civ 2707
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL AND FAMILY JUSTICE CENTRE
HHJ Sharpe
SA17C01718
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 6 December 2018
Before :

LORD JUSTICE McCOMBE
and
LORD JUSTICE PETER JACKSON

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Between :

	M (A Child) (Secure Accommodation)		

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Simon Stephenson (instructed by Duncan Lewis Solicitors) for the Appellant
Piers Pressdee QC (instructed by Pembrokeshire County Council and CAFCASS Cymru) for the Local Authority and Guardian

Hearing date: 29 November 2018

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Judgment
Lord Justice Peter Jackson: 

1.	A secure accommodation order permits, but does not compel, a local authority to keep a child in secure accommodation.  A court hearing an application for such an order under Section 25 of the Children Act 1989 or Section 119 of the Social Services and Well-being (Wales) Act 2014 in respect of a child who is being looked after by a local authority must determine whether the criteria for keeping a child in secure accommodation are satisfied and, if they are, shall authorise the child to be kept in secure accommodation for a stated period not exceeding the maximum period specified by regulations.  
2.	Section 25(1), contains the two alternative criteria for making an order:
EITHER
(a)	that the child has a history of absconding and is likely to abscond from any other description of accommodation AND that 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.
3.	It is established that in this context likelihood means a possibility that cannot sensibly be ignored (Re G (Secure Accommodation Order) [2001] 1 FLR 884 at 896).
4.	Absconding means something more than trivial disobedient absence.  It may connote an element of escape from an imposed regime (Re W [2016] EWCA Civ 804 at [21]) but it is not limited by consideration of the intentions of the individual concerned.  Judges can be relied upon to give the word its ordinary meaning and recognise behaviour that can be properly described as absconding in all the circumstances of the individual case.
5.	The maximum periods are specified in the Children (Secure Accommodation) Regulations 1991.  Regulations 11 and 12 provide for an initial maximum period of 3 months and thereafter maximum periods of up to 6 months.  In specifying the period of authorisation, the court must consider carefully the purpose to be achieved and assess as best it can the length of time which that is likely to take; the order should be for no longer than is necessary and the court should explain its reasoning (Re W (Secure Accommodation Order) [1993] 1 FLR 692 at 697).
6.	In In Re M (Secure Accommodation Order) [1995] Fam 108, this court confirmed that the welfare paramountcy principle in Section 1 does not apply to a Section 25 application, although a local authority should consider the child’s welfare when deciding whether to use the power granted by the court to restrict a child’s liberty.  The function of the court under Section 25 is rather to control the exercise of the local authority’s power than to exercise an independent jurisdiction in the best interests of the child.  
7.	I turn to the relevance of proportionality to these decisions.  Section 25(4) states that where the criteria are satisfied the court “shall” make an order.  In Re M (above), a case before the Human Rights Act 1998, this court described the requirement as mandatory.  In Re K (Secure Accommodation Order: Right to Liberty) [2001] 1 FLR 526, Section 25 was found to be compatible with Article 5 ECHR.  More recently, in Re SS (Secure Accommodation Order) [2014] EWHC 4436 (Fam) at [26], Hayden J declined to make a secure accommodation order on proportionality grounds, and in Re W (2016, above) at [24] this court accepted as “plainly right” an uncontested submission that any order must be necessary and proportionate.  However, in T (A Child) [2018] EWCA (Civ) 2136 at [16], Sir Andrew McFarlane P noted that the ambit within which it is possible, if at all, for the court to exercise discretion where the qualifying criteria are met is limited.  There is accordingly a range of authority on the place of proportionality in an application for a secure accommodation order.  The central question is perhaps whether the stringent criteria within Section 25 itself amount to an inbuilt proportionality check, or whether, notwithstanding the statutory wording, something more is required.  This will be a question with consequences in a very small number of cases only, and this case is not one of them.  Accordingly, it is not the occasion for resolving the issue of principle, and for now all that can be said is that proportionality should not become a surrogate for a general welfare assessment of the kind disapproved in Re M.
8.	Against that background, I turn to the present appeal, which we heard and dismissed on 29 November.  It is brought by a young person to whom I shall refer as Emma (not her real name).  She is 15½.  On 9 November 2018, HHJ Sharpe made a care order and a secure accommodation order for six months.  This appeal relates only to the latter order.
9.	Briefly, Emma’s home has been with her mother and younger sister.  However, at the age of 13 she became subject to a child protection plan due to being beyond parental control in that she would leave home, use drink and drugs and place herself at severe and repeated risk of sexual harm.  During 2017, her behaviour fluctuated and she was at times placed in foster care or residential accommodation.  In February 2018, she was diagnosed by a forensic psychiatrist as having a conduct disorder.  She continued to engage in seriously risky behaviour, and on 5 April 2018 HHJ Sharpe authorised a deprivation of liberty at a residential placement under the inherent jurisdiction of the High Court.  Over the next four months, there was an almost uninterrupted series of events, with Emma repeatedly disappearing from the residential home, self-harming, and being violent or abusive to members of staff or other children.  On 8 June 2018, HHJ Sharpe made a three-month secure accommodation order and Emma was placed in her current placement.  Her disturbed behaviour (though not of course her absconding) continued unabated over the following two months, but by September it had become less extreme.  This coincided with attendance at therapy and better integration with the work of the unit.  
10.	On 13 August, the forensic psychiatrist and Emma’s clinical psychologist met.  They agreed that the work that needed to be done was in the very early stages and would take a long time – 6 to 9 months, possibly up to year.  The forensic psychiatrist thought that she would need to remain in secure accommodation for up to 9 months.  
11.	The local authority in due course applied for a further secure accommodation order.
12.	It was against this background that the hearing on 8-9 November took place.  The judge heard evidence from the clinical psychologist, who spoke of progress to the point that it was now possible to look for a new therapeutic placement.  If that could be found, a significant and lengthy process of preparation, transition and support would be necessary.  In the meantime, the present placement was the right one for Emma.  The risk of absconding from another placement would depend upon the nature of the placement.
13.	Emma’s position was that she accepted that she could not go home and that there should be a care order, and that no suitable residential unit was available.  However, she opposed a secure accommodation order, arguing that she had made progress and could now be trusted.
14.	Emma’s mother by now accepted that she could not return home and that a care order was appropriate; she took a neutral stance on the secure accommodation order. 
15.	The Guardian supported the making of care and secure accommodation orders.  Her report gave a thorough overview of the situation, with proper acknowledgement of Emma’s good qualities and recent progress.  However, she described a vulnerable young person and said that she was not yet confident that Emma could successfully move to a residential placement; in the meantime, it was necessary for her safety that she should remain in secure accommodation
16.	The threshold for the making of a care order was agreed on the basis that Emma is likely to suffer significant harm through being beyond parental control.  The threshold document recites the sequence of deeply worrying events that abundantly justified the making of a care order.
17.	In an insightful judgment, the judge found that the statutory criteria were comprehensively satisfied.  He found that Emma had absconded no fewer than 10 times between March and May 2018, that this amounted to a history of absconding, and that she was likely to abscond from any other sort of accommodation.  He rejected the submission that Emma had not been absconding but merely “taking herself off”.  He also found that she would be likely to injure herself if she was placed in any other sort of accommodation.  He considered the order to be a proportionate interference with Emma’s Article 5 and 8 rights.  He made an order for six months to allow for a suitable therapeutic placement to be found and for transition arrangements to be put in place, if not completed.  He expressed the strong hope that a move might be achieved within the period of the order.
18.	On Emma’s behalf, Mr Stephenson argues (i) that the judge was wrong to find that either of the statutory gateways was satisfied, (ii) that that the making of the order was disproportionate and (iii) its duration too long.  The main thrust of his submission is that too much weight was placed on the events of April/May 2018 and too little on the more recent progress.  That approach impacted on the judge’s findings on the likelihood of future absconding and injury and on proportionality.
19.	On the prior question of whether there had been absconding in the past, Mr Stephenson points out that on several occasions, Emma returned or was recovered within a few hours and that the longest that she remained away was for one night.  As to the risk of absconding in future, this is less likely if Emma feels that she is understood and supported.  As to the risk of injury, her self-harming behaviour has considerably reduced in seriousness and frequency.
20.	Mr Stephenson further submits that placement in an environment with a strong custodial complexion is a disproportionate interference with Emma’s right to liberty and to respect for her private and family life in the light of the undeniable progress she had made.
21.	Finally, Mr Stephenson argued that any order should have been for a shorter period of perhaps 2-3 months to allow for an early transition to a new placement.
22.	The local authority and the Guardian are, sensibly, jointly represented by Mr Pressdee QC, who has filed helpful and comprehensive arguments in opposition to the appeal.  
23.	Having reviewed the material that was available to the judge and considered the submissions made on Emma’s behalf, I conclude that the case for a continued secure accommodation order was compelling.  The judge had a full grasp of all the relevant information, the matter having come before him on four previous occasions.  His decision to make the order was in my view correct, and at all events, was certainly not wrong.  He was fully entitled to find that Emma had a history of absconding that placed her at severe risk, and that at this point in time there was at least a real possibility that she would continue to abscond if she was able to do so.  These were factual evaluations that he properly arrived at, mindful of the guidance given in the authorities.  Whether or not it was necessary, he specifically addressed the question of proportionality, and his conclusion in that respect cannot be gainsaid either.  He was acutely aware of the progress that Emma had been making but the evidence showed that this was in its early stages.
24.	I also consider that the judge was within his powers when making an order of six months’ duration.  The expert evidence made it clear that the process of transition to residential accommodation was likely to be a lengthy one.  The order does not of course require Emma to be kept in secure accommodation until next April.  If she continues to make progress and a suitable residential placement can be found, that may not be necessary.  However, against this extremely troubling background, the risk of significant harm to Emma from unsafe behaviour is still real and the length of the order was appropriate in the circumstances.  
25.	These are my reasons for dismissing this appeal.

Lord Justice McCombe:
26.	I agree.