The Children’s Wellbeing and Schools Bill, which passed its second reading in the House of Commons on 8 January, would amend s.25 Children Act 1989 significantly to expand its scope. The amendment (in clause 10) is not entirely easy to read in isolation, so I have prepared an unofficial version of s.25 Children Act 1989 as it would look with the amendments contained in clause 10.
The Explanatory Notes to the Bill provide in material part that:
6. The Bill seeks to amend section 25 of the Children Act 1989 to provide a statutory framework for the authorisation the deprivation of liberty of children in a different type of accommodation – one that is not a secure children’s home (“SCH”), but which is primarily to be used to provide care and treatment for a vulnerable, complex cohort who may need restrictions which deprive them of their liberty (i.e. that the totality of the restrictions means that the person is under continuous supervision and control and not free to leave of their own accord).
7. Currently, the only statutory framework for depriving a child of their liberty on welfare grounds (outside other relevant legal frameworks such as in relation to mental health) is via section 25 of the Children Act 1989. This power enables a child to be placed or kept in accommodation provided for the purpose of restricting liberty (a SCH). A core feature of a SCH is that it should be designed for, or has as its primary purpose, prevention of a child from absconding or causing harm to his/herself or others. Other, highly therapeutic accommodation designed for a child would have as its primary purpose the care and/or treatment of the child, as opposed to prevention of absconding or harm, and so cannot currently be used to deprive a child of their liberty via section 25 of the Children Act 1989.
18. The effect of this legislative change would be to provide an alternative statutory route to authorise the deprivation of liberty of a child in a more flexible form of accommodation, bringing more deprivation of liberty cases under a statutory framework via s.25 Children Act 1989, with clear criteria for access, mandatory review points and parity with SCH in terms of access to legal aid.
These amendments have to be read against the current situation, captured most starkly by the Children’s Commissioner for England in her recent report. Focusing purely on the wording of the Bill, amongst the matters that the House of Lords will no doubt be considering at Committee stage are:
- How far the change plugs the current gap that is being met by the High Court under the inherent jurisdiction, given that the test for children in “relevant accommodation” is whether they are likely either to abscond (and suffer significant) harm, or whether, if they are kept in any other description of accommodation they are likely to injure themselves or other persons. Put another way, is “injury” wide enough to capture all the types of harm that are currently being addressed by the High Court’s inherent jurisdiction in non-absconding cases?
- Article 5 ECHR compliance. This is addressed in the human rights memorandum, but two specific, additional, issues that fall for consideration are:
- The need for specificity as to the basis upon which deprivation of liberty is justified in any given case. The European Court of Human Rights is clear that deprivation of liberty can only be justified on one of the exhaustive list of grounds contained in Article 5(1). In the case of a child, this could be Article 5(1)(d) (educational supervision) or Article 5(1)(e) (‘unsoundness of mind’). The nature of the evidence required to justified the different limbs is different (in particular, medical evidence being required for the latter, but not the former). It may well be that these are matters which fall to be left to the Family Procedure Rules in due course, but they are a matter which need to be considered by Parliament.
- That Strasbourg has made clear that detention on the basis of Article 5(1)(d) “must take place in an appropriate facility with the resources to meet the necessary educational objectives and security requirements” (Blokhin v Russia [2016] ECHR 300). In similar vein, Strasbourg has also made clear that detention on the basis of Article 5(1)(e) must be in an appropriate place, and to be accompanied by appropriate treatment. In Rooman, the court also emphasised that the appropriateness of the placement had to be judged by reference to the needs of the individual in question, rather than by the category of accommodation generally. These requirements would apply equally to the High Court considering an application under an amended s.25 CA 1989 as it does in the context of detention under the Mental Health Act 1983.
- How this regime would interact with the jurisdiction of the Court of Protection to authorise deprivation of liberty for those aged 16 and 17 lacking the relevant decision-making capacity.
