Secure Accommodation Policy

1. Introduction

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

It is important in considering the possibility of a secure placement, that there is a clear view of the aims and objectives of such a placement and that those providing the accommodation can meet those aims and objectives fully.

Secure placements, once made, should only be for so long as is necessary. The first order may only last for 3 months. An order serves to authorise the local authority to place a child in secure accommodation. It is permissive and does not require the local authority to take this action as such. Should the criteria for secure accommodation cease during the currency of the order, the young person must be moved to more appropriate accommodation.

No child under the age of 13 years may be placed in secure accommodation without the express permission of the Secretary of State. For more information as to how to obtain permission see the DfE Guidance - Secure Children's Homes: How to Place a Child Aged Under 13.

No young person aged 16 or over whose legal status is "accommodated voluntarily" under s20(5) Children Act 1989 may be placed in secure accommodation. (See Section 3, Criteria for Admission to Secure Accommodation)

Only the local authority who is looking after the young person may apply for an order (Regulation 8).

2. Principles Underpinning the Use of Secure Accommodation

All placements must be in line with the welfare principles outlined in the Children Act 1989, including equal opportunities issues.

Restricting the liberty of a young person using welfare secure accommodation  must be a "last resort" in the sense that all else must first have been comprehensively considered and rejected – never because no other placement was available at the time, because of inadequacies in staffing, because the young person is simply being a nuisance or runs away from their accommodation and is not likely to suffer significant harm in doing so, and never as a form of punishment. Under no circumstances should any young person be placed in secure accommodation unless they satisfy the legal criteria for a secure order and only in exceptional circumstances should a young person be placed in secure accommodation without reference to the Family Proceedings Court (in cases relating to welfare criteria) or a Youth/Magistrates' Court (in cases relating to remand criteria).

Acceptance of these basic principles means that the number of occasions that discretionary use is made of secure accommodation will be extremely small. Discretionary usage is restricted to those situations where it is intended to seek authorisation to apply for an order but where there is an immediate safeguarding reason for the young person to be secured immediately and in advance of a court hearing. Authorisation for such usage will be through the panel system, subject to approval by the Director of Children’s Services or their nominee.

There must be clear aims and objectives for each placement in secure accommodation.

Every young person in secure accommodation should have access to an Independent Representative/Advocate, and recourse to the formal complaints procedure.

3. Criteria for Admission to Secure Accommodation

N.B. It is unlawful to keep a young person in secure accommodation unless these criteria as laid down below have been met.

Young People who are Looked After i.e. those children and young people subject to a Care Order under Section 31 of the Children Act 1989 or accommodated under Section 20* with the agreement of a person with Parental Responsibility and:

• That the young person has a history of absconding and is likely to abscond from any other description of accommodation AND, if they abscond is likely to suffer Significant Harm;
• That if they are kept in any other description of accommodation they are likely to injure themselves or other people.

*N.B. No young person aged 16 or over whose legal status is "accommodated voluntarily" under s20(5) Children Act 1989 may be placed in secure accommodation.

This distinction is significant. Regulation 5(2) of the Children (Secure Accommodation) Regulations 1991/150 excludes application being made for a secure accommodation order in respect of children accommodated pursuant to s 20(5) of the Act.

Definition:

S20(3)- The Local Authority shall accommodate the young person if not doing so will seriously prejudice the young person’s welfare i.e. young people who have been brought into Local Authority care due to reasons of safeguarding and for whom the Local Authority have a duty to provide accommodation.

S20(5)- The Local Authority may accommodate the young person if it would safeguard and promote their welfare i.e. young people who have sought the support of the Local Authority and for whom the Local Authority may choose to provide accommodation.

N.B. "History of absconding" should refer only to behaviour which is relevant to the current situation and not to previous absconding which may have little or nothing to do with the current situation.

4. Time Limits

No young person in care or accommodated may have their liberty restricted for a period longer than 72 hours either consecutively or in aggregate, in any period of 28 days without the authority of the Court.

The exception to the 72 hour rule is covered by Regulation 10(3) which provides that, where a child/young person is placed in secure accommodation between 12.00 midday on a day before and 12.00 midday on the day after a public holiday or Sunday:

1. During that period the maximum period of 72 hours expires; AND
2. The child had, in the previous 27 days before the day on which s/he was placed in secure accommodation, been placed and kept in such accommodation for an aggregate of more than 48 hours.

The maximum period shall be treated as if it did not expire until 12.00 midday on the first day, which is not in itself a public holiday or Sunday.

This limited extension is intended to cater for the emergency placement of a young person in secure accommodation when a major proportion of the 72 hours has already been used up, and it is unlikely to be possible to arrange for an application to be heard by the Family Proceedings Court before the 72 hours expires.

Regulation 10 does not apply to those young persons admitted to secure accommodation who have 24 hours, or more, left of the 72 hours permitted aggregate. In these cases, an application must be brought before the Family Proceedings Court within the 72 hour period if it is intended that the placement should continue beyond that period, even in those cases where there the period would expire on a Sunday or Public Holiday when courts do not normally sit. Family Proceedings Courts can make arrangements to convene a special court at short notice, in order to co-operate as fully as possible with the requirements of the Act and the Regulations.

5. The Decision Making Process - Secure Panel

Where the Locality is considering that secure accommodation might be the only possible option, the Head of Service for Locality must discuss the case with the Children’s Services Director or their delegate. Where this discussion concludes that secure accommodation should be further pursued, the IRO Manager must be contacted to discuss the concerns / risks and consider what possible options have been explored before agreement can be given for convening a secure panel.

In emergency situations where it is not possible to convene a Secure Panel, the Service Director may act using the Director's discretionary powers under Regulation 10.3 and give verbal approval where:

• A young person is at risk of immediate and significant harm;
• The public are considered to be at risk of immediate or serious injury;
• A young person who would otherwise be detained by the police under PACE but who needs to go to a welfare secure bed and also needs to satisfy the S25 criteria.

The Secure Panel, if convened, must be a properly constituted panel, which has sight and understanding of the criteria for admission to secure accommodation.

• IRO manager (Chair)/Head of service locality;
• Service Director or their delegate independent from the child's locality;
• Independent team leader/Early Help Manager;
• An Independent Person.

Legal Advice to the Panel

Where the information before the panel may result in a decision to apply for an order on welfare grounds, a representative from the Legal Services, Commissioning, Communities and Policy Department will attend to advise the panel.

Other persons to be included in the Secure Panel discussion:

• The views of parents and carers should be sought and every effort made for them to attend in person;
• The young person's view should be taken into consideration and every effort made for them to attend in person;
• A representative from children's rights should attend as an observer IF the young person is unwilling to attend;
• The child's Advocate (if they wish) to support the young person and ensure their views are heard;
• Where the concerns relate wholly or in part to a young person's offending behaviour the Youth Justice Service should attend;
• If they are already in care their carers or key residential staff should attend; and
• Mental health representative where appropriate.

Reports for Panel

A chronology should be made available to the panel, and a report which includes:

• A brief background;
• The young person’s current circumstances and reason for the application;
• Assessment of risk;
• Whether there is any other framework(legal or otherwise) under which the young person can be kept safe;
• The views of the young person;
• The views of the parent;
• Views of involved professionals.

Attendance/Participation at Panel

The Panel should hear from:

• The case responsible social worker;
• A member of the Localities' Management Team;
• A representative of the residential placement or a foster carer where the young person is looked after; and
• A Youth Justice Service worker where the application will consider any offending behaviour.

It should also include the views of:

• The young person;
• The young person's parent(s);
• Any person who is not a parent but who has Parental Responsibility; and
• Any other person who the local authority consider should be informed.

Where it is considered inappropriate for a young person or their parent(s) to attend, the reasons for this should be discussed in advance with the chair of the panel who will record the decision and the reasons for it. The Chair should also be advised of any sensitive issues which might require particular arrangements to be made with regard to how the meeting would be most helpfully organised.

The Department's Complaints and Representations Procedure are applicable to any decision by a panel and any person eligible to use the procedure and wishing to do so should request an urgent review of the decision. In such circumstances, a further panel will be convened.

Where the complaint is in respect of a decision to apply for an order, the complainant should be advised that the correct procedures are to contest the decision in court. The complainant should be encouraged to seek independent legal advice.

N.B. No Court shall make an order in respect of a child who is not legally represented in that Court unless having been informed of their right to apply for legal aid and having the opportunity of doing so, he/she has refused.

Where approval is given for an application to proceed a placement plan should be drawn up which takes account of the anticipated duration and arrangements for bringing it to an end.

Panel Function

The Panel will consider:

• The application and the Chair will record their decision reflecting any different views of panel members.

The Panel Chair will consider:

• The legal advice and that of panel members as to whether or not the relevant legal criteria are satisfied;
• Whether any other form of accommodation is appropriate;
• Whether the use of secure accommodation is a genuine last resort; and
• Whether or not an application should be made to a court for an order;
• Provide minutes of the meeting and their decision which will be distributed to:
  • Panel members and those in attendance;
  • Service Director;
  • IRO manager.
• Advise on next steps to be taken, including:
  • Approving use of the Director's discretion pending any application to a Court;
  • Recommending the length of any order to be sought;
  • Along with the panel, recommend an alternative strategy where an application has been turned down.

If the Panel agree that it is appropriate for a Secure Order to be sought, such action must be effected within seven days of the Panel decision being made.

6. Applications to Court

In non-criminal proceedings the maximum duration for which a court can authorise the use of secure accommodation is 3 months. Following such an order, further orders, not exceeding 6 months may be made.

In non-criminal proceedings application should be made to a Family Court.

In non-criminal proceedings as soon as a secure panel has agreed that an application for a secure order should be made, the Legal Services team should be contacted to make an application to the relevant Court Office to list the case for a hearing.

Only the Local Authority looking after the child can make the application for a secure accommodation order (regulation 8, CSAR 1991).

The following documents will be required by the court:

• Application form C1;
• Supplemental form C20;
• Social work chronology (if not contained in the statement);
• Social worker statement;
• Care plan.

To give the court the fullest information about the child's circumstances and establish the significant harm or injury that the child is likely to suffer, the following information should be made available where applicable:

• Psychiatric report on the child;
• Health report on the child;
• Police reports;
• Looked after children review minutes.

Content of social worker statement

The statement should focus on:

• Establishing one or both limbs of the criteria in s25 of the Children Act and considering:
  • What the significant harm or potential injury is that the child needs to be protected from;
  • Other support that has been tried with the child; and
  • The placements that have been tried with the child;
  • Why placing the child in secure accommodation is the best option to meet the needs of the child and;
  • The child's current needs;
  • Any specific work that needs to be undertaken with the child in a secure setting;
  • Why secure accommodation is possibly a positive option for the child; and
  • The likely effect on the child if they were allowed to abscond from a placement.
• Details of a potential placement, the work that can be done with the child and how contact will be promoted.

It is not necessary to have a welfare checklist in the statement. Although the child's welfare is relevant, it is not the court's paramount concern. However, if there is an application for a care order to be made at the same time, there will have to be a welfare checklist in the statement.

Length of order

The first secure accommodation order can be made for up to a maximum period of three months (regulation 11, CSAR 1991). Any period during which the child was kept in secure accommodation before the court order is disregarded in the calculation (regulation 10(2), CSAR 1991).

The court can make further orders authorising up to a further six months on an application by the LA to continue keeping the child in secure accommodation (regulation 12, CSAR 1991).

An application to continue keeping the child in secure accommodation is made using Form C1 and supplemental Form C20 accompanied by an updating statement, updated care plan, minutes of the secure review panel and other relevant updating reports. The criteria under section 25 of the CA 1989 must continue to be met.

Representation of the child in an application for a secure accommodation order

A children's guardian must be appointed unless the court decides it is unnecessary to do so to safeguard the child's interests (section 41(1), CA 1989). The child must have legal representation unless he has been told that he is entitled to public funding and does not or chooses not to apply for public funding (section 25(6), CA 1989). Where a child is legally represented, both the solicitor for the child and the children's guardian need to keep in mind whether the child should be separately represented if there is a conflict between the child and the children's guardian

The child should normally attend court for the hearing unless to do so would not be in their interests.

Human rights considerations

Although an application for a secure accommodation order is not a criminal charge, a child facing such an application should be given the five rights set out in Article 6(3) of the European Convention on Human Rights:

• To be informed promptly, in a language which he understands and in detail, of the nature and cause of the application against them;
• To have adequate time and facilities for the preparation of their defence;
• To defend himself in person or through legal assistance of his own choosing, or, if they do not have sufficient means to pay for legal assistance, to be given it free when the interests of justice require this;
• To examine or have examined witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them;
• To have the free assistance of an interpreter if they cannot understand or speak the language used in the court. (Re C (Secure Accommodation Order: Representation) [2001] EWCA Civ 458).

7. Appeals Against a Decision to the Court

Where a court fails to make an order upon application, the local authority has the right of appeal within 21 days to the Family Court. Alternatively, if the circumstances change, this may constitute grounds for a fresh application. With specific reference to Section 25 appeals are to the High Court.

The young person must not be held in secure accommodation pending this appeal.

Where the court upholds the application, the young person has the right of appeal to the Family Court within 21 days through their solicitor.

The young person may be held in secure accommodation pending this appeal.

8. Placement Considerations

In order to locate a suitable placement, the social worker should contact the Secure Accommodation Welfare Coordination Unit for information about vacancies.

At this point there should be enquiries made about the physical intervention techniques used within the secure units being approached, and their policy on mobility.

Notifying others about the decision to extend placement of a child in secure accommodation.

Where a child is kept in secure accommodation and the LA intends to make an application to the court to keep the child there, the LA looking after the child must, if practicable, inform the following as soon as possible:

• The parents;
• Any other person with parental responsibility;
• The child's independent visitor if one has been appointed;
• Any other person they consider should be informed of that intention.

9. Planning Requirements

Wherever possible, a meeting should be held to plan the admission, draft an initial placement plan and consider its links with the care plan.

Within 7 days of admission, there should be a looked after children's review chaired by the young persons allocated Independent Reviewing Officer (IRO). This should consider the care plan in full including the purpose of the secure period i.e. assessments etc. and the discharge plans.

10. When Section 25 Criteria is Not Met

Use of Inherent Jurisdiction to Authorise a Placement Involving a Deprivation of Liberty When One or More of the Relevant Criteria Under Section 25 Children Act 1989 are Not Satisfied

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.

11. Secure Criteria Review Requirements – Section 25 Orders

There will be a Secure Criteria Review held within 28 days. A further criteria review must be held within 91 days unless the Locality confirm with the IRO that they want to go back to court for a further period. If court makes a further secure order a criteria review should be held within 28 days. See also Secure Accommodation (Criteria) Reviews Procedure.

The panel will comprise:

• Independent Reviewing Officer (Chair) who is not the IRO who chairs the young persons looked after reviews;
• An Independent Person appointed by the Quality Assurance Service;
• Child Care Manager independent of Line Management of the case – identified by Head of Service (locality).

Its function is to have regard to the welfare of the young person when considering whether or not:

• The legal criteria for keeping the young person in secure conditions continue to apply;
• The placement in such accommodation continues to be necessary;
• Any other form of accommodation would be appropriate;
• Consideration of any decision to permit or withhold permission to go out of the unit.

The following people should be invited and encouraged to attend the secure criteria review:

• The social worker;
• The young person;
• Parents or carers;
• A key worker from the unit
• A manager from the unit;
• A teacher from the education unit;
• Young person's advocate;
• Any other person who has a contribution to make.

A social work report should be available to the panel (template available) along with a report from the unit.

In order to ensure that no young person is held in secure conditions any longer than is necessary, it is the policy of the Derbyshire County Council that:

• Placements of up to 90 days will be reviewed in accordance with Regulation 16 at intervals of not more than 28 days;
• Placements proceeding beyond 90 days will be reviewed in accordance with Regulation 16 at intervals not greater than 3 monthly.

If the review panel finds that the criteria are no longer satisfied, the young person must immediately be discharged from Secure Accommodation.

See also Secure Accommodation (Criteria) Reviews Procedure.

Given the nature of the order and the importance of making minimum use of secure accommodation, wherever possible the social worker should undertake weekly visits to the young person and meet with staff at the unit.

12. The Role of the Independent Person / Advocate

The placement of young people in secure accommodation and the restriction of liberty inevitably limits their access to persons to whom they might ordinarily turn for reassurance, personal support, to make a complaint or, more simply, to ensure their voice is heard.

The Social Worker should ascertain from the Secure Unit the availability of an Independent Person/Advocate for the young person and ensure that the young person has access to such advice and support. (THIS PERSON IS NOT THE SAME PERSON AS THAT WHO SITS ON THE CRITERIA REVIEW PANEL).

13. Going Out of the Unit

Following admission to the unit, no young person is allowed to leave so long as the legal authority for placement in secure conditions remains in force, except:

• To attend Court; or
• To receive urgent medical attention which cannot be provided through a doctor visiting the unit.

These conditions will be discussed fully at the initial planning meeting which will set out the processes whereby a young person progresses to the point where a "mobility plan" is implemented. Any such plan must be approved by the Secure Unit and Locality Manager for the case.

Risk Assessment and Monitoring Arrangements

Given the serious nature of any decision to restrict a young person's liberty, the fullest consideration must be given to how this is restored to him/her. It is the general aim to pursue mobility proposals at an early stage but only following the proper consideration of:

• The reasons and circumstances that led to the making of the order and progress towards resolving them;
• The nature of the order and the probable outcome of any criminal proceedings;
• The acceptance by the young person of the reasons for the order and the progress he/she is making on the placement plan;
• Their behaviour in the unit, including statements made;
• Any relevant stress factors;
• Any risk of harm to the young person, any other individual or the community in general.