Placements in Secure Accommodation

1. Introduction

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;
The Independent Reviewing Officer and 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 - 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. Every child/young person must be offered an advocate.

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. For example, 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. All such placements must have clear aims and objectives and must only be made for as long as is necessary and unavoidable – the decision to place a child in secure accommodation 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.

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

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:

They have a history of absconding and is likely to abscond from any other form of accommodation and

If they abscond, they are likely to suffer significant harm;

or
If kept in any other accommodation is likely to injure themselves 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 themselves or other people if they are 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).

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 their 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 of past placement history and the significant events that have led to the Legal Planning Meeting being arranged;
This report must be counter-signed by both the Services Manager and the Team Manager. It should be provided to the planning meeting.

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 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 their 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 them suffering significant harm if they do abscond;
The likelihood of them injuring themselves 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.

The Operations Director of Specialist Services also needs to be informed as they hold decision-making responsibility for each placement and must record their reasons for the decision and attach these to the report, along with a Management Decision on LCS.

Options open to the Operations Director 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 they refuse to accept legal representation. They 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 must be consulted at the beginning of the process of planning so that they are 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. They 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.

Revised Practice Guidance on the Court’s Approach to Unregistered Placements (October 2023) provides that the Court's role in deprivation of liberty ('DoL') applications, is to exercise its inherent jurisdiction to ensure that any deprivation of liberty is not itself unlawful, whether as an unlawful detention under the common law, or a breach of Article 5 of the ECHR.

The Courts, when considering a DoL application, should enquire into whether the proposed placement is registered or unregistered. If it is unregistered it should enquire as to why the local authority considers an unregistered placement is in the best interests of the child.

The Court may order the local authority to inform Ofsted/CIW within 7 days if it is placing a child in an unregistered placement.

From April 2023, supported accommodation settings for 16 and 17 year olds are required to be registered with Ofsted in accordance with the Supported Accommodation (England) Regulations 2023.

Guidance - Placing Children: Deprivation of Liberty Orders (Ofsted) - guidance for providers, social workers and placement commissioners on placing children, subject to a deprivation of liberty order (DoL), in unregistered settings provides that:

A local authority placing a child should check whether the placement is registered with Ofsted in England or CIW in Wales.

It is a legal requirement that:

A children's home in England registers with Ofsted;
A care home service in Wales registers with the CIW.

It is an offence to operate or manage a children's home or care home service placement if you are not registered.

A children's home is a setting in England that provides care and accommodation, 'wholly or mainly' for children.

A care home service is a setting in Wales that provides care and accommodation to a child because of their vulnerability or need.

An unregistered provider providing a placement for a child with a deprivation of liberty must:

Register with Ofsted or CIW immediately - it is an offence to operate without registration.

Private providers must:

Inform the local authority who has placed the child about the steps taken to register;
Keep the local authority informed of the progress of the registration application at all times – the registration status may be used by the court when making decisions on continuing the deprivation of liberty.

Application for registration can be made through Ofsted’s 'priority application' process Registering Children's Homes in an Emergency: Priority Applications or through the CIW's online application process in Wales.

Where a local authority has placed a child in an unregistered setting, Ofsted/CIW will keep the local authority informed about any relevant application to register received. Local authorities can also contact the local Senior HM Inspector (SHMI) or regulatory inspection manager to ask for an update. In Wales, they can contact CIW's registration team for advice and support.

The court may refuse to authorise a deprivation of liberty order if the placement provider will not apply to register.

Revised National Listing Protocol for Applications that Seek Deprivation of Liberty Orders Relating to Children under the Inherent Jurisdiction sets out the process for the organisation and listing of deprivation of liberty orders relating to children under the inherent jurisdiction.

All initial applications will be dealt with as part of the National DoL List ('NDL'), as part of the Family Division of the High Court.

All first applications will be listed in the High Court (Royal Courts of Justice) in the NDL before a NDL judge. This will be the default position unless the local authority is requesting an immediate transfer out to the local Family Court for the first hearing.

The NDL judge will make the first order and fix the review date.

The expectation will be that, where there are, or will be, parallel public law proceedings concerning the same child/young person and/or where there has been prior judicial involvement at a local level, the case will be sent back to the local court for further reviews. In effect, the presumption will be that local Family Courts are better placed to deal with the continuation and/or regulation of the terms of a DoL order which affects a child or young person who is the subject of ongoing care or related proceedings.

If the child or young person is 16 or 17 years old and there is reason to believe they may lack capacity and would be likely to be transferred to the Court of Protection at the age of 18 years, then the court should transfer the case to the Court of Protection in accordance with the guidelines.

At the first hearing in the High Court the judge must:

Consider whether the order sought amounts to a deprivation of liberty within the meaning of Article 5 ECHR;
Consider the extent to which the restrictions sought are necessary and proportionate in relation to the perceived risks to the child or others;
Consider the nature of the placement and its suitability to meet the needs of the child concerned. The provision of ongoing education is crucial. It will only be in exceptional circumstances that a child will be subject to a DoLs order without education.

Where the application is being made on an urgent basis on short notice in circumstances where the local authority has not yet identified a suitable longer-term placement for the child, the judge must give careful consideration to the conditions under which the child’s liberty will be restricted in the short term pending an urgent review hearing.

Any initial directions given at the first hearing in the High Court may include the following matters:

Directions for the listing of any urgent hearing on transfer back to the local court including the provision of notice to other persons or parties to ongoing care proceedings;
The filing of further evidence;
Joinder of the child as a party to the proceedings allocated to a Children’s Guardian in the local area where the child lives;
Whether there are any particular reasons why the proceedings should remain in the High Court for the next review hearing (for example the unavailability of a suitable judge in the local court if the next review is urgent).

The draft order made at the first hearing in the RCJ ("the first order") should cover:

The scope of the DoL restrictions;
The name/identity of the placement;
Any specific requirements or pre-conditions;
Notification to Ofsted if the placement is unregulated;
Contact;
Education;
Appointment of Guardian;
Review/next hearing and before whom? (i.e. where possible the judge to whom the case has been/will be allocated in the local court should be identified in the first directions order).

12. Planning for Discharge

Social Workers must have a firm plan about where they want the young 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.

For any child placed in secure accommodation exit planning should commence as soon as the child moves to the secure children’s home.

This will involve brokerage actively searching for an appropriate alternative provision for the young person when they move out of the comes secure children’s home.

Weekly meetings should take place with brokerage and the SW team to discuss and plan for next steps.

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 them 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 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.

Further Information

Legislation, Statutory and Government Non-Statutory, Guidance

Guide to the Children’s Homes Regulations including the Quality Standards ANNEX B: Additional Information for Secure Children's Homes

Guidance - Placing Children: Deprivation of Liberty Orders (Ofsted) - guidance for providers, social workers and placement commissioners on placing children, subject to a deprivation of liberty order (DoL) in unregistered settings.

Revised Practice Guidance on the Court’s Approach to Unregistered Placements (October 2023)

Revised National Listing Protocol for Applications that Seek Deprivation of Liberty Orders Relating to Children under the Inherent Jurisdiction

Good Practice Guidance

Healthcare Standards for Children and Young People in Secure Settings (RCPCH)