Placements in Secure Accommodation

1. Introduction

Restricting the liberty of children and young people is a serious step which must be taken only when there is no genuine alternative which would be appropriate.

Subject to the following provisions of this chapter, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears that:

He has a history of absconding and is likely to abscond from any other description of accommodation; and

If he absconds, he is likely to suffer significant harm;

or
That if he is kept in any other description of accommodation he is likely to injure himself or other persons.

Wherever practicable any use of secure accommodation should arise as part of the Department's overall plan for the young person's welfare. There should be clear aims and objectives for the placement which the providers of the secure accommodation can meet.

When secure accommodation is being considered for any young person it is essential that:

The legal grounds for any application for a Secure Accommodation Order are clarified;
The duty to promote and safeguard the young person's welfare is kept fully in mind;
Adequate consultation occurs as for the making of all placements;
Any Independent Visitor for the young person is informed.

Whilst secure accommodation involves the restriction of liberty, it should not in any other sense involve or lead to any suspension or disregard of a young person's rights as someone who is looked after by the local authority.

Scrupulous attention should be given to ensuring that these rights are protected and that the right to liberty is restricted only in accordance with the law.

Whilst every effort will be made to avoid the need for young people being placed in secure accommodation by rigorous scrutiny of all possible alternatives, the important role played by secure accommodation as part of the range of services provided to a minority of young people by the Department is acknowledged.

A secure placement for some young people may be the only way of responding to the likelihood of them suffering significant harm or injury to themselves or to others. However any decision to restrict the liberty of a young person is a serious step which can only be considered when there is no other appropriate alternative.

Such a decision will only be authorised by the Operations Director or above.

Where the decision is made to seek a Secure Accommodation Order the young person must be advised of their legal rights and their case regularly reviewed by a Secure Accommodation Review Panel (see Secure Accommodation (Criteria) Reviews Procedure, Secure Accommodation Review Panels).

All such placements must have clear aims and objectives and must only be made for as long as is necessary and unavoidable.

Admission to secure accommodation must form part of the Care Plan, with a clear idea about how it fits in to the overall plan.

Social Workers must have a firm plan about where they want the person to go on discharge, mindful that a discharge could take place at short notice if it is decided that the criteria no longer apply.

Contingency planning is vital when working with young people in secure accommodation as the Court or a Secure Accommodation Review Panel may discharge them from the secure unit. In these situations the Social Worker may have little notice.

The Court making the Order will want to hear about the overall Care Plan and what the Social Worker envisages for the young person - beyond secure accommodation. The Court will need to be reassured that, as far as possible, there will be continuity of care, education and other professional support when the young person leaves secure accommodation.

2. Statutory Framework

The following legislation and guidance governs the use of secure accommodation on welfare grounds:

Children Act 1989 (s25);
The Children (Secure Accommodation) Regulations 1991 and 1992;
The Arrangements for Placement of Children (General) Regulations 1991 Guidance and Regulations - Volume 4:, "Residential Care", Chapter 8.

3. Grounds for the Use of Secure Accommodation

A young person may not be placed, and if placed may not be kept in secure accommodation unless it appears that:

S/he has a history of absconding and is likely to abscond from any other form of accommodation and

If s/he absconds, s/he is likely to suffer significant harm;

or
If kept in any other accommodation is likely to injure her/himself or other person's;

The Children (Secure Accommodation) Regulations 1991 modify the above requirements slightly in respect of children and young people who are looked after and are either:

Detained under s38(6) of PACE Act; or
Remanded to local authority accommodation or bailed with a condition of residence in local authority accommodation and charged with certain serious offences.

Such young people may not be placed, and if placed, may not be kept in secure accommodation unless it appears that any accommodation other than that provided for the purpose of restricting liberty is inappropriate because:

The young person is likely to abscond from such other accommodation; or
The young person is likely to injure her/himself or other people if s/he is kept in any such other accommodation (Regulation 6);
The person is detained under any provision of the Mental Health Act 1983.

The Court is unable to exercise its power to authorise a period of restriction of liberty if the young person is not legally represented, unless the young person has chosen not to exercise this right (s25 (6) Children Act 1989).

The Children (Secure Accommodation) Regulations 1991 states local authorities may not keep a young person to whom s25 of the Children Act 1989 applies in secure accommodation without leave of the Court beyond 72 hours (whether or not consecutive) in any period of 28 consecutive days.

4. Scope

Any young person who fulfils the above criteria can be made the subject of a Secure Accommodation Order unless they are under the age of 13 when the prior consent of the Secretary of State must be obtained (Regulation 4). (See Section 10, Children Under 13 who Require Placement in Secure Accommodation for further details).

It is theoretically possible to apply for a Secure Accommodation Order on a young person aged up to 18. However in practice applications for young people beyond the age of 17 are extremely rare.

Many of the young people who require placement in secure accommodation are not in care but accommodated. It is therefore essential that parental views are sought, as parents can discharge the young person from accommodation.

The need to seek the views of the young person, so long as that is consistent with their welfare, remains.

5. Routes into Secure Accommodation

The Act makes provision for two routes by which a young person's liberty may be restricted:

By means of a Secure Accommodation Order made by a Court;
By means of the local authority exercising its power to restrict liberty without the consent of the Court.

6. Detention for up to 72hrs - Local Authority Power

Regulation 10(1) places a limit on the maximum period a young person, to whom s25 of the Act applies, may have her/his liberty restricted without the authority of the Court.

The maximum period is 72 hours, either consecutively or in aggregate in any period of 28 consecutive days. Consequently this provision is a power available to the local authority and not a Court Order. It is this provision which is considered here.

Where an adjournment is necessary, the court can make an interim order.

The child/local authority may appeal to the High Court against the making, or refusal to make, an order.

Where a young person's:

Physical or emotional state or offending or self harming behaviour places them at risk of significant harm; and
No other resource/provision is appropriate to reduce this risk; and
It is consistent with the local authority's duty to promote the well being of Children Looked After then;
Detention in secure accommodation for up to 72 hours may be considered.

7. Secure Accommodation Orders

Applications are made to the Family Proceedings Court unless the child is:

Remanded to local authority accommodation; and
Charged with or convicted of an offence imprisonable in the case of a person aged 21 or over, for 14 years or more; or
Where charged with an offence of violence, or has been convicted of an offence of violence, when application is made to the remanding Youth Court.

The circumstances under which a Social Worker may wish to make application for a Secure Accommodation Order are very similar to those in which the decision may be made to detain a young person up to 72 hours namely; where a child/young person's:

Physical or emotional state or offending or self harming behaviour places them at risk of significant harm; and
No other resource/provision is appropriate to reduce this risk; and
It is consistent with the local authorities duty to promote the well being of Children Looked After.

The Court can grant an Order for up to three months initially and thereafter further authorisation by the Court is required, when a maximum period of 6 months can be authorised.

Please see the separate chapter Remands to Local Authority Accommodation or to Youth Detention Accommodation Procedure for further information regarding remands in criminal proceedings.

8. Establishing a Case

A referral for a Secure Accommodation Legal Planning Meeting should be made.

A report must be compiled by the Social Worker that includes:

Care Plan;
Placement Plan;
Summary from the most recent Assessment and Progress Record.

This report must be counter-signed by both the Services Manager and the Team Manager. It should be provided to the planning meeting.

The independent Reviewing Officer must be informed that a planning meeting for a secure accommodation order is being called.

Note legal advice to Children’s Services should not be disclosed to the young person or his parent(s) or carers.

Before any placement is made in a secure unit, a planning meeting must take place which includes the following people:

The young person;
The parent(s);
Young person's Social Worker;
Team Manager;
The foster carers and Fostering Team Supervising Social Worker or residential workers and manager of the residential unit;
Other professionals who have an active role in the welfare of the young person;
A representative from Specialist Adolescent Service Hertfordshire (SASH);
A CLU representative.

This meeting must be chaired by the Head of Service (Safeguarding Services) and must consider the following issues:

Details of the young person's assessed needs;
Details of all the actions the Department has previously taken with the young person to prevent an escalation of her/his behaviour;
The young person's history of being looked after, i.e. types of placements, duration of these placements, reasons for the breakdown of these placements;
The history of absconding and likelihood of the young person absconding from any placement other than a secure unit;
The likelihood of her/him suffering significant harm if s/he does abscond;
The likelihood of her/him injuring her/himself or others;
The young person's requirements while in a secure unit, e.g. psychiatric assessment, an anger management programme, full assessment etc.

The Secure Accommodation Legal Planning Meeting should be recorded on the form located here. A record of the meeting with a clear recommendation should be sent, with the pre-meeting social work report, to the Operations Director, Specialist Services.

The Operations Director of Specialist Services holds decision-making responsibility for each placement and must record her/his reasons for the decision and attach these to the report.

Options open to the Operations Director of Specialist Services include:

Authorising an immediate secure placement which can last for up to 72 hours;
Authorising an application for a Secure Accommodation Order;
Refusing a request for an immediate placement but asking that a further planning meeting in respect of a planned placement be held;
Refusing placement request whether for a planned or immediate placement.

9. Applications for a Secure Accommodation Order

Once a decision has been taken to authorise the use of secure accommodation, the Social Worker must make an application to the Court for a Secure Accommodation Order.

The following forms should be completed:

If a Care Order is also being applied a C110 Application should be completed. This is usually drafted by CLU; or
A statement which contains a Care Plan, by the Social Worker;
If the application is not also for a Care Order a C1 and C20 should be completed. The Child Litigation Unit would usually draft these.

The statement must be sent to CLU for checking and approving. CLU will return these with any suggested amendments. The Social Worker must make any required correction/additions and the application will then be issued by CLU who will also give advice about appropriate service of the application on the necessary parties.

Young people will need to be legally represented in Court before it will hear an application for a Secure Order. The only exception to this is if s/he refuses to accept legal representation. S/he will be entitled to legal aid for these hearings.

10. Children Under 13 who Require Placement in Secure Accommodation

Any placement of a child under 13 in secure accommodation must be approved in advance by the Secretary of State for Education. In February 2015 the Department for Education issued revised guidance Department for Education guidance, Secure children's homes: how to place a child aged under 13.

The Operations Director of Specialist Services must be consulted at the beginning of the process of planning so that s/he is aware that a request for a Secure Accommodation Order may follow.

All the processes described previously in this section, must be followed with the Operations Director of Specialist Services agreement. Within Children's Services, only the Operations Director of Specialist Services can contact the Department for Education (DfE) requesting admission. S/he must have the fullest facts on which to base the request to the DfE.

Evidence must be provided to support the request, including how the criteria are met and the plan on discharge. When receiving the initial telephone contact seeking authority the DfE will ask for:

The name and date of Independent Review Team of the child concerned;
A verbal summary of the reasons for the secure placement;
Confirmation of whether a bed in a secure children's home has been identified and is available;
Confirmation of whether the child is currently with the local authority or missing from care (having absconded);
Details of when the local authority is intending to go to court to seek a secure order;
An explanation as to why a secure placement is necessary;
Details of what alternatives to a placement in a secure children's home have been considered and why these were rejected.

In guidance associated with the Children's Home (Amendment) Regulations 2011 clarification is given, in respect of children under the age of 13 in Secure Accommodation, that once a child's secure placement ends, if a new secure placement is to be made while that child remains under the age of 13, the local authority must again seek the approval of the Secretary of State for that placement. However, if the local authority wish to extend the original secure placement (i.e. where there is no break in the secure placement) further Secretary of State approval is not necessary.

11. Use of Inherent Jurisdiction to Authorise a Placement Involving a Deprivation of Liberty

The Supreme Court has held that the inherent jurisdiction of the High Court can be used to authorise the placement of a child where the prescribed statutory requirements cannot be met and there is no practical alternative but to place the child in other accommodation.

In this situation, legal advice must be sought as a matter of urgency.

Where a local authority cannot apply for a Secure Accommodation Order under section 25 Children Act 1989 because one or more of the relevant criteria are not satisfied, it may be able to apply for leave to apply for an order depriving the child of liberty under the inherent jurisdiction of the High Court if there is reasonable cause to believe that the child is likely to suffer significant harm if the order is not granted (s.100 (4)) Children Act 1989).

It may be that section 25 does not apply because the criteria set out in section 25(1)(a) and (b) are not met. For example, a child who has no history, so far, of absconding, and who is not likely actually to injure themselves or anyone else, so does not satisfy section 25(1)(a) or (b), but who, for other good reasons to do with their own welfare, needs to be kept in confined circumstances.

Section 25 may not apply where the application is to place a child into accommodation which is not classed as 'secure accommodation' for the purposes of section 25, not being registered as such.

When considering an application under its inherent jurisdiction, the High Court must have the child's welfare as the paramount consideration and undertake a welfare evaluation to determine whether the deprivation of liberty proposed by the local authority is in the child's best interests, always having firmly in mind that the intervention must be both a necessary and proportionate response to the need to protect the child from the harm to which they would be exposed were the declaration not made.

Additional information to be taken into account by a court asked to authorise the confinement of a child in an unregulated placement, when the circumstances would meet the terms of section 25 Children Act 1989 were it not for the absence of an authorised registered placement, is set out in Practice Guidance: Placements in Unregistered Children's Homes in England or Unregistered Care Home Services in Wales.

This guidance sets out 'best practice' to be followed:

When making an application to the court for an order under its inherent jurisdiction to authorise the deprivation of the liberty of a child, the applicant should make the court explicitly aware of the registration status of those providing or seeking to provide, the care and accommodation for the child;
If not registered, the Court should be made aware of the reasons why registration is not required or the reasons for the delay in seeking registration;
If registration is not required, the applicant must make the court aware of the steps it is taking to ensure that the premises and support being provided are safe and suitable for the child accommodated. If care rather than support is being provided, then the provision is likely to require registration as a children's home;
If registration is required but has not yet been obtained, the court will need to be satisfied that steps are being taken to apply for the necessary registration. The court will wish to assure itself that the provider of the service has confirmed that they can meet the needs of the child. In addition, the court will need to be informed by the local authority of the steps the local authority is taking in the meantime to assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child. Where an application for registration has been submitted to Ofsted (CIW in Wales), the court should be made aware of the exact status of that application.

The High Court held in MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam) that it remained open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 in ‘other arrangements’ such as unregulated accommodation notwithstanding the ban on placement of children under the age of 16 in such accommodation under the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021. The Court stressed the requirement for rigorous application of the President’s Guidance.

The High Court subsequently held (Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam)) that the court should not ordinarily countenance the exercise of its inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law.

The High Court stated in the case of In the Matter of Child J [2020] EWHC 2395 (Fam).

'The secure accommodation procedures provide important protections for children confined in such institutions. In my judgment, a placement that does not provide those same protections should only be authorised when absolutely necessary. Sadly, at the current time when there is a significant gap between registered secure accommodation provision and registered secure accommodation need, unregistered placements are often absolutely necessary'.

In that case, the local authority applied under the inherent jurisdiction for leave to apply for an order depriving a 16 year old boy of his liberty because it was not able to apply under s 25 of the Children Act 1989 – the relevant criteria not being satisfied because the placement identified and proposed was an unregistered children's home. The boy was beyond parental control and due to his involvement with criminal activity and gang violence was at high risk of significant harm or even death. The order was granted, with the following restrictions being imposed:

Restrictions on the child's use of phone, internet and correspondence;
Restrictions on his use of windows and doors;
Not to be allowed to go out without permission and being accompanied by staff members from his placement and/or other professionals;
Two to one supervision;
Restraint to be used if required;
Not to be permitted to access social media without supervision;
Permission given for the doors of the property to be secured if deemed necessary for security reasons and to prevent him from leaving;
To have restricted access to personal allowance;
His possessions are to be searched and permission is granted to remove belongings, knives or makeshift weapons.

12. Removal from Secure Accommodation by Parents

It is important to note that the parents or person with parental responsibility for a young person accommodated under s20 (i.e. by voluntary agreement) may, at any time, remove her/him from secure accommodation whether or not the authority of the Court to restrict the young person's liberty has been obtained.

Similarly the power of young people over the age of 16, accommodated under s20, to discharge themselves from accommodation must be taken account of in planning for the young person.

In practice this means that if secure accommodation is required to meet the needs of an accommodated child then consideration will also have to be given to the issue of care proceedings.

13. Finding an Appropriate Placement

The Brokerage Team must be contacted as soon as the Operations Director of Specialist Services has given authority for an application to be made. The Brokerage Team service will be responsible for finding a bed, taking into account children subject to secure accommodation may only be placed in England or Wales.