Secure, secure, secure, absconding

In In the Matter of W (A Child) [2016] EWCA Civ 804, the Court of Appeal addresses two points of particular interest to public children law practitioners. This blog post (briefly) addresses each in turn.

Background

A child (“W”), aged 17 years and 8 months at the time of the appeal, sought to appeal against an order of Keehan J placing her in secure accommodation (i.e. an order under section 25, CA 1989 compelling her to reside in a specialist unit in which she would be deprived of her liberty). Keehan J had found W to be beyond parental control (since perhaps the age of 9, and certainly since the age of 14), a victim of child sex exploitation and at significant risk to her emotional and physical safety. Since being placed in various residential placements, the court had found that W had been consistently disruptive, abusive and sexually promiscuous and “has constantly absented herself at all hours to pursue her own ends, often involving unknown men in unknown locations, after which she has sometimes been found to be in possession of significant amounts of money”, at [7].

Section 20 (3) v section 20 (5), CA 1989

Two general points bear noting in the section 20 (3) v. section 20 (5), CA 1989 debate. The first: the Court of Appeal has clarified the blurry understanding of these provisions that had seeped in to the High Court (see, for example, Re SS (Secure Accommodation Order) [2014] EWHC 4436 (Fam), [2015] 2 FLR 1358). It is now clear that a child who is 16 and over can be made subject to a secure accommodation order (if not already the subject of a care order, then under section 20 (3), CA 1989); the bar is in relation only to those children accommodated under section 20 (5), CA 1989.

And, the second: the consent of the subject child is not determinative either to the retrospective decision as to under which provision she was accommodated (i.e. under section 20 (3) or section 20 (5), CA 1989) nor on the application for a secure accommodation order. As one might expect, however, “As a child approaches its majority, the factors to be weighed in the balance will undoubtedly acknowledge its looming legal independence”, at [20].

“Absconding”: a definition?

In the present case, W had “disengaged” with the unit, returning “not just a few hours later but well into the following day”, at [22]. For Keehan J, this satisfied the “absconding” definition – the Court of Appeal, however, made clear that such behaviour did not mean that W was absconding “in terms of escaping indefinitely from an imposed regime, as opposed to deliberately absenting herself for a limited period, knowingly and disdainfully in breach of the night-time curfews imposed”, at [22].

Despite the Court of Appeal stating that it was not necessary to define “absconding” beyond its ordinary meaning, this is a decision of which any practitioner representing a child or parent opposing an application for a secure accommodation order should take note: for many, this will represent a (new) shield with which allegations of a child absconding can be fended off.

An illuminating judgment.

 

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