Human rights and secure accommodation orders

When social workers apply for secure accommodation orders for
teenagers, they do so in the last resort. On 3rd April 2001, the
court of appeal recognised that there are difficulties in dealing
with procedural matters when the reality is that a teenager is at
grave risk.

Ms C is aged 15, already has a child of her own (the subject of
separate care proceedings), is a registered drug addict, and
absconded from a mother and baby unit where she had been placed
with her child. Social services issued care proceedings in respect
of her. Her lifestyle deteriorated, and she arrived at hospital
with severe abdominal pains and then discharged herself against
medical advice. Ms C later returned to her parents’ house in
possession of cocaine soaked in ammonia, so her father called
Social services who arranged for her to be placed at a secure
unit.

Social services applied for a secure accommodation order,
relying only on s.25(1)(a)(i) of the Children Act 1989 that Ms C
had a history of absconding, and filed an interim care plan
stressing the dangers of Ms C’s adolescent life and the range of
services available at the unit. The documents were served on Ms C’s
parents, and on the guardian ad litem’s solicitor. It became
obvious that there was a clear conflict between Ms C’s instructions
and the instructions of the guardian.

At court Ms C met her own solicitor who had not been served with
the papers, and was not prepared. Social services asked to dispense
with the requirements of service, and the magistrates agreed
because of “the real need for the secure accommodation application
to be dealt with today”. They then adjourned the case until the
afternoon to allow Ms C more time to give instructions to her
solicitor. Social services served their 14 page statement from the
social worker who later gave evidence, as did Ms C and her parents.
The magistrates made both an interim care order and a secure
accommodation order for six weeks.

Ms C appealed from both decisions to the high court (Mr Justice
Johnson), saying a supervision order should have been made, whilst
she lived with her mother and attended drug rehabilitation. The
judge found that Ms C and her solicitor were fairly treated and
that the magistrates were entitled to hold that Ms C had a history
of absconding and dismissed her appeal.

C then appealed to the court of appeal on the grounds that:

i. the magistrates had wrongly dispensed with service

ii. there had been fundamental unfairness in the hurried trial
of an application for such a draconian order,

iii. there had been a breach of her rights under Article 6 of
European Convention on Human Rights (the right to a fair
trial),

iv. that she was not looked after within the terms of s.25(1) of
the Children Act 1989 and

v. that there was no evidence to support a history of
absconding.

The Court of Appeal was not impressed with any of the points
raised. They said that:

i. Social Services did not have to apply for an order dispensing
with service requirements, as they had complied with the rules for
service. Ms C had a right to a solicitor of her choice, and her
first opportunity to replace the guardian’s solicitor with her own
choice had arisen at the hearing. The Magistrates clearly had the
power and discretion to make the orders.

ii. The court of appeal were acutely aware that it had to review
with scrupulous care a hearing that gave a teenager only a few
hours with her solicitor before a hearing which resulted in the
loss of liberty for 6 weeks. That timescale had to be measured
against the facts and evidence in the case. No other step could
have been taken had an extensive adjournment been granted

iii. The minimum rights set out in Article 6 of the convention
must be given to a child facing an application for a secure
accommodation order

iv. C was accommodated for the purposes of s.25 of the 1989 Act,
she had been provided with accommodation by social services at her
parents’ request

v. The magistrates made a finding of fact on the evidence that
there was a history of absconding.

Finally, Lord Justice Brooke observed that an interim secure
order could have been made, if anyone had thought of it.

Bernadette Livesey

Walker Morris Solicitors