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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W Borough Council v DK [2000] EWCA Civ 255 (29 September 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/255.html Cite as: [2000] EWCA Civ 255

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Case No: B1/2000/3183/A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15^th November 2000

The history
3. There is a long history of the difficulties experienced by AK and by those looking after him starting long before he went to school. His parents married in 1983, separated in early 1996 and divorced in August 1996. He has an elder brother D, born in 1983, who was for some years in care. On AK´s first day at nursery in 1987, aged 2, he was permanently excluded as a result of his destructive behaviour. He was referred to an educationalist at the age of 4 because of his aggressive behaviour and was described by the psychologist as being over-active to the point of being chaotic, deliberately destructive and using provocative and abusive language. He was assessed as having moderate learning difficulties and was admitted to a special school. The local authority became involved in 1991 as it became increasingly difficult for his parents to manage his behaviour. He was aggressive and physically and verbally abusive to staff and children. On occasions he damaged school property. From an early age he was fascinated by fire and behaved in a sexualised way. Respite care was arranged on a number of occasions to help his family.
4. In 1993, At the age of 7, he was reported as displaying sexualised behaviour towards a 6 year old girl. The same year he attempted to set fire to his home. He spent longer and longer periods accommodated by the local authority in residential care with the consent of his parents. His behaviour deteriorated and there were regular incidents of sexualised and aggressive behaviour. In 1994, at the age of 8, He went to a residential school and spent his holidays at home. In 1996 there was a marked deterioration in his behaviour. There were incidents of sexualised behaviour including masturbation and exposing himself in public. He was disruptive and in September 1996 he assaulted a female member of staff.
5. In December 1996 the Adolescent Forensic Service at hospital P carried out a psychiatric assessment. They considered that he did not have a mental illness or impairment as defined under the Mental Health Act 1983, but exhibited symptoms consistent with a diagnosis of Hyperkinetic Conduct Disorder. The report said that:

" we believe that [A] presents a serious risk to himself and others as is demonstrated by his recent offences, the continuation of his fire setting behaviour, the increasing aggressive behaviour coupled with his ability to target vulnerable members of staff and the inability to safely contain [A] despite intensive effort at his current placement.
Our concern would include the current tendency for those caring for [A], both professional and personal to minimise the risk he presents perhaps due to his young age and pre-pubertal nature. This risk is likely to increase with puberty, increasing physical size and strength."

6. The report recommended a placement in secure accommodation. In January 1997, the local authority planning committee recommended a secure placement. Since AK was only 11 years old the approval of the Secretary of State was required. This was given in April 1997. Other residential placements were tried and his behaviour improved. A further psychiatric assessment was carried out in May 1998 which concluded that:

"At present he continues to present with all the risk behaviours identified at our initial assessment. These risks appear at present to be contained within his current placement. However our concern would be that as [A] develops in physical strength and size these behaviours will become more difficult to contain. Consideration must be given to constructing a longer term strategy to both recognise and react to this need."

7. Between October and December 1998 there was a marked deterioration in AK´s behaviour. He was charged with two offences of indecent assault on a girl at his placement. He was moved and moved again. He was involved in two incidents of fire setting. He assaulted two female members of staff and was charged with indecent assault. In November 1998 he was aggressive and assaulted a male member of staff. This catalogue of incidents and AK's general behaviour caused the local authority to place him in his present secure unit and apply, for the first time, for a secure accommodation order. A guardian ad litem was appointed. An interim order was made on the 7^th December 1998 for four weeks.
8. AK had a further psychiatric assessment which concluded that he was not suffering from a psychiatric illness. He did, however, have complex social and educational needs and mental health problems. He continued to present a significant risk to others through sexual aggression, even within a secure setting. AK´s father was unhappy for AK to remain in secure accommodation and, with the possibility of withdrawal of consent by one parent, the local authority obtained an interim care order, as a precaution, on the 4^th January 1999. In February full psychiatric assessment confirmed the earlier reports, including sexually inappropriate behaviour, sexual assaults, destructible and disorganised behaviour. It was thought that he needed a structured environment which could manage his violent and sexually aggressive behaviour and that his sexually inappropriate behaviour was likely to respond to a behavioural therapy programme. Further applications for secure accommodation orders were not opposed by the guardian nor by either parent. AK, however, appealed against the refusal of the Family Proceedings Court to allow him to attend the section 25 hearing. Wall J allowed the appeal and, since the transfer of the case to the county court on the 28^th July 1999, AK has attended the hearings. In the county court his case has been heard throughout by Judge Urquhart who has clearly taken a great deal of trouble over AK. He held one hearing in the secure unit and went round the unit with AK. He has seen and talked to AK at the court hearings and has established a rapport with him. AK likes him and has confidence in him. I very much hope that, in due course, when the plans for AK settle down, future applications concerning AK will continue to be heard by Judge Urquhart.
9. A clinical psychologist assessed AK in April 1999 when he was 13 years and 8 months old. He was assessed as having general, moderate learning difficulties with a cognitive age of approximately 7 years. AK continued to exhibit worrying behaviour which caused the principal of the secure unit to set out in a letter, dated the 17^th June 1999, his concerns about AK´s behaviour and sexual fantasies. He reported that AK was acting out sexual fantasies even in the controlled and highly supervised environment in which he was placed. He posed a considerable risk to others. The principal of the unit then said:

"The identification of babies as victims, the anger he feels during abusive acts, the lack of victim sympathy and the impulsive urges to act out fantasies despite supervision only reinforces my professional opinion and that of my staff, that [A] is an extremely dangerous young man."

He felt that AK was likely to act upon his fantasies almost as soon as he had
an opportunity to do so.
10. Enquiries were made last year throughout the country by the local authority to try to find a more specialist unit. Of those identified, none was suitable, or if suitable, willing to take him. He has, therefore, remained at the secure unit. He has received appropriate education and has made progress both in formal education and in his behaviour. His continued placement in the secure unit has been supported by both parents and the guardian ad litem. He was seen for a number of sessions by a senior therapist working with the Lucy Faithfull Foundation, which AK chose to bring to an end. She expressed the view in two reports, in November 1999 and in January 2000, that it would be possible to work therapeutically with AK and outside a closed environment. AK was further assessed by an adolescent forensic psychiatrist, Dr D, who did not support a placement outside a secure unit. She confirmed the earlier psychiatric reports and said that if AK was in an open environment he was at risk of absconding and, if so, would be at risk himself and would be a serious risk to others. She recommended that he should remain in secure accommodation. She also recommended a further psychological assessment of AK to include speech and language. He was further assessed by a clinical psychologist in April 2000, when he was 14 and 9 months, as having verbal reasoning skills of around 8 years. Further attempts were made by the local authority in April 2000 to find AK another placement without success.
11. In August 2000 AK described some of his sexual fantasies which gave rise to considerable concern to those caring for him in the secure unit. It had the effect of stopping the outside visits which had previously taken place and had been much enjoyed by AK.
12. On the 29th September 2000, the case was transferred to the High Court. On the 16^th October just before the hearing of the appeal, Dr D provided this Court with two reports, the second one being based on an interview with AK at the secure unit on the 12^th October. She expressed her concerns as to AK´s competence to understand and to take part in the court proceedings. She considered that he had made progress since she last saw him in February but that he continued to represent a risk to others and to be at risk from harm himself. She did not believe that his problems could be managed in any other description of accommodation and she considered that he continued to fulfil the criteria for detention under section 25.
13. It is worth noting that between August 1996 and April 1999, AK appeared before a juvenile or youth court on four occasions and was, over that period, convicted of the following offences - arson, criminal damage, burglary, common assault, indecent assault and criminal damage caused by arson. He was also, over the same period, cautioned for arson and criminal damage. It seems clear, from the reports of the clinical psychologist in April 2000 and the two reports of Dr D in October 2000, that AK falls within the criteria for mental impairment and comes within the provisions of the Mental Health Act 1983. This conclusion will have, it seems to me, a significant effect upon any arrangements for AK´s long term future. AK has made it clear that he does not want to remain in a secure unit and wishes to be placed in a normal children´s home with a view to going eventually to live with his mother. This is the background to the appeal by AK against the secure accommodation order made on the 30^th June 2000, the subject of this appeal.

The application for a Declaration of Incompatibility

14. Miss de Haas QC, for AK, has sought a determination by this Court that section 25 of the Children Act 1989 is incompatible with the Human Rights Act 1998, section 4(1), and for a declaration of incompatibility under section 4(2). She relied upon Article 5 of the European Convention on Human Rights.

Article 5 " Right to liberty and security" states:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a).....
(b).....
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f)....
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

15. Section 1 of the Human Rights Act incorporates certain of the rights and fundamental freedoms set out in the Convention into English domestic law. Section 2 requires a court determining a question which has arisen in connection with a Convention right to take into account the opinions of the Commission and decisions and judgments of the European Court of Human Rights. The English courts are, so far as it is possible to do so, required to read and give effect to English legislation in such a way as is compatible with the Convention rights, (section 3(1). It is clear from sections 3 and 4 that, if English legislation is found to be incompatible with a Convention right, that legislation is, nonetheless, to continue to be applied by the domestic court. Section 4 (6) states:

" A declaration under this section (" a declaration of incompatibility") -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made.

It is a matter for the Minister of the Crown to take the appropriate remedial action under section 10, (see R v DPP ex parte Kebilene [1998] 3 W L R 972 per Lord Steyn at page 981).
16. The effect of sections 3 and 4 is that, in the present case, it is the duty of this court to see if it is possible to read and give effect to section 25 of the Children Act in accordance with Article 5 and, if it is not possible, then this court has the jurisdiction, by section 4(5), to make a declaration of incompatibility of section 25 with Article 5. Such a declaration has, however, no immediate effect upon the position of AK, and if the order of Judge Urquhart was correctly made, in accordance with the requirements of section 25, despite the application of Miss de Haas to the contrary, there can be no immediate challenge to the detention of AK in the secure unit. Further, if the facts placed before this court demonstrate that AK should remain in the secure unit, this Court must consider whether to make a new order in accordance with our domestic law.

17. The argument on incompatibility of section 25 with the Convention right of AK under Article 5 was in two parts:

1. whether a secure accommodation order was a deprivation of liberty and, if so;
2. whether such deprivation of liberty came within the permitted categories set out in Article 1(a) to (f).

18. Although some argument was addressed to us that the situation of AK might come within either or both Article 5 (c) and (e), those submissions were not pressed, and it is not necessary in the present appeal to express a view. If a secure accommodation order is a deprivation of liberty, for the purpose of this appeal, the justification for keeping AK in a secure unit under section 25 comes within Article 5(d), or his detention is a breach of his Convention right under Article 5.
19. Section 25 "Use of accommodation for restricting liberty" is as follows

"(1) subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in secure accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears -
(a) that -
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm, or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
(2) ..........
(3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.
(4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept".
20. In the Children Secure Accommodation Regulations 1991 secure accommodation is defined in paragraph 2(1) as:
"accommodation which is provided for the purpose of restricting the liberty of children to whom section 25 of the Act (use of accommodation for restricting liberty) applies"

21. The length of court orders is regulated by paragraphs 11 and 12 of the Regulations. The power of the local authority to keep a child in a secure unit for a maximum of 72 hours in any period of 28 days, in the absence of a court order, is to be found in paragraph 10.

Deprivation of liberty.
22. Miss de Haas submitted that AK´s detention in a secure unit amounted to deprivation of his liberty. She recognised that every child was subject to a degree of control and deprivation of free movement. Examples were given such as - the child who was told by his mother that he cannot go out to the cinema because he had not completed his homework or - the child in boarding school with school rules which deprived him of free movement outside the school grounds. She accepted that the right to liberty was not absolute and that some deprivation of liberty did not come within Article 5. She argued, however, that it was a question of degree, and the point came at which the restrictions were so inhibiting that it became a breach of Article 5. She submitted that in a secure unit, by its very nature, a child was deprived of his liberty. He could not leave the premises and was locked in his room at night. The purpose of the section was to restrain children who would otherwise be likely to abscond. In order for a local authority to place the child in a secure unit, it had to obtain the authorisation of the court for any period exceeding 72 hours and the requirement to get the authorisation of the court was a good indication that a secure accommodation placement went beyond the extent to which a parent could lawfully restrain a child. It was, therefore, a deprivation of liberty which required justification within the narrow exceptions set out in Article 5 (a) to (f).

23. On the facts of this appeal, AK was for many years accommodated voluntarily by the local authority under Part III of the Children Act, section 20. The arrangements made for AK by the local authority were with the consent of the parents who, until December 1998, retained parental responsibility. From December 1998, when the first interim care order was made, parental responsibility was shared with the local authority. Mr Garnham pointed to the approach of the European Court that restrictions upon the liberty of a child need not amount to deprivation of liberty. He submitted that the placing of A in secure accommodation, particularly since it was done with the consent of the parents, who still consented to him remaining there, was within the lawful application of parental responsibility and was not a deprivation of liberty within Article 5. Further, by section 22(3)(a) of the Children Act, the local authority had a duty to safeguard and promote the welfare of the child and the restrictions upon the liberty of AK were motivated by concerns for his welfare. This was a proper purpose for the exercise of parental responsibility and consistent with the duties laid on the local authority by the Children Act. He relied upon the cases of Nielson v Denmark (1988) 11 EHRR 175 and Family T (1990) 64 DR 176 in support of his submission that a secure accommodation order did not amount to a deprivation of liberty.
24. Mr Ryder, who was asked at a late stage to make a submission on this issue, indicated that the local authority would not seek to argue that a secure accommodation order was not a deprivation of liberty. He accepted that it had to be justified under Article 5 (1)(d).
25. In approaching the words of Article 5 of the Convention I keep in mind the speech of Lord Hope of Craighead in Kebilene at page 988, in which he referred to the observations of Lord Woolf that a generous and purposive construction was to be given to that part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled. Lord Hope said:

" The same approach will now have to be applied in this country when issues are raised under the Act of 1998 about the compatibility of domestic legislation and of acts of public authorities with the fundamental rights and freedoms which are enshrined in the Convention."
26. Robert Walker LJ in re A (Children) (22^nd September 2000, unreported) said
"The Convention is to be construed as an autonomous text, without regard to any special rules of English law, ........"
27. It is clear that not every deprivation of liberty comes with the ambit of Article 5. Parents are given a wide measure of discretion in the upbringing of their children. This was recognised by the European Court in Nielson (above) the case of a child committed to a psychiatric ward at the request of his mother. It said at paragraph 61:
" It should be observed at the outset that family life in the Contracting States encompasses a broad range of parental rights and responsibilities in regard to care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child´s liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life, in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognised and protected by the Convention, in particular by Article 8. Indeed the exercise of parental rights constitutes a fundamental element of family life."
(see also Family T (above) at page 180 following Nielson).

28. I recognise the force of the principles set out in the decisions in Nielson and Family T (above). There is a point, however, at which one has to stand back and say - is this within ordinary acceptable parental restrictions upon the movements of a child or does it require justification? In Guzzardi v Italy (1980) 3 EHRR 333 the Court said at paragraph 92:
" The Court recalls that in proclaiming the ´right to liberty´, paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion......In order to determine whether someone has been ´deprived of his liberty´ within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.
The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability of Article 5 depends."
29. Applying those principles to the application of a secure accommodation order upon a young person, it is clear that the purpose of section 25, as set out in the interpretation in the regulations dependent upon it, is to restrict the liberty of the child. The application of section 25 is not dependent upon the making of a care or interim care order. A child can be the subject of a secure accommodation order in circumstances in which the local authority does not share parental responsibility with the parents. It is a benign jurisdiction to protect the child as well as others, (see re W (Secure Accommodation Order [1994] 2 F L R 1092 at page 1096, per Ewbank J), but it is nonetheless restrictive. If a parent exercised those powers by detaining a child in a similar restrictive fashion and was challenged to justify such detention, for my part, I doubt whether the general rights and responsibilities of a parent would cover such an exercise of parental authority. It might be permissible for a few days but not for nearly two years. A court, under our domestic law, would be likely to intervene. The limit of 72 hours detention imposed by statute on a local authority without court authorisation, even in the most extreme case, is in my view significant support for the argument that this is a deprivation of liberty. The requirement for a court order, and for the court to find proved the relevant criteria before the authorisation to restrict the child´s liberty beyond 72 hours can be made, underlines, in my view, that this is an extreme measure.
30. Miss de Haas drew our attention to the advice from the Department of Health on the use of section 25, that restricting the liberty of children is a serious step which must be taken only where there is no alternative, as a last resort, (see Children Act 1989: Guidance and Regulations, Vol 1. Court Orders at para 5.1). In re M (Secure Accommodation Order) [1995] 1 F L R 418, I referred, at page 423, to a decision by a local authority to restrict the liberty of a child as serious and Draconian. Holman J held, in LM v Essex County Council [1999] 1 F L R 988, that where the criteria which justified the making of a secure accommodation order ceased to exist, there was no justification for the local authority to continue to detain the child whom it had agreed was to be moved into non-secure accommodation.
31. The Second Section of the European Court recently decided an application in respect of a secure accommodation order in Koniarska v United Kingdom (12^th October 2000) (unreported). The Court declared inadmissible an application by a girl who was 17 at the time of the authorisation of the secure accommodation order. Although Mr Garnham argued with some force that the Court may not have fully understood the working of section 25, as seems evident from the judgment of the Court, that does not seem to me to detract from its conclusion in the next paragraph:

" The next question is whether the applicant was "deprived of [her] liberty" within the meaning of Article 5(1) of the Convention. The Court notes that the aims of the orders under section 25 of the Children Act 1989 are (is) to provide "secure" accommodation. No precise details have been furnished, but the applicant likens the security regime to that of a medium to high security prison for adult offenders, and this is not contested by the Government. The Court finds that the applicant was deprived of her liberty from 23 November 1995 until 29 April 1996."

32. In the light of the concession by the United Kingdom Government, and for the reasons which I have set out above, for my part, I am satisfied that a secure accommodation order is a deprivation of liberty within the meaning of Article 5 and requires, therefore, to come within one of the exceptions set out in Article 5(1) so as not to be incompatible with AK´s right to liberty under the Convention.

The exceptions under Article 5.
33. In Engel v The Netherlands (1976) 1 EHRR 647 at paragraph 57 the European Court said:

"the list of deprivations of liberty set out [in Article 5] is exhaustive"
(see also Ireland v The United Kingdom (1978) 2 EHRR 25 at paragraph 194).

34. Miss de Haas submitted that AK´s deprivation of liberty did not fall within any of the exceptions within (a) to (f) and was not therefore as a result of a lawful order. The European Court said in Bouamar v Belgium 11 EHRR 1 at page 16 para 50:

" ´Lawfulness´ however, also implies that the deprivation of liberty is in keeping with the purpose of the restrictions permissible under Article 5(1) of the Convention."

The permissible exceptions are to be given a narrow interpretation, see Guzzardi (above) at paragraphs 98 and 100.
35. Detention under the relevant part of the exception in Article 5 (1)(d) must be by lawful order and for the purpose of educational supervision. On the facts of this appeal AK is receiving education which is carefully supervised, from which he is clearly benefiting, even though there is criticism of the lack of sufficient therapy. The submission advanced by Miss de Haas was not that the regime was in fact unsuitable, but that educational supervision did not form part of the relevant criteria in section 25 which, she submitted, had nothing to do with education and but were designed to restrict liberty. Since the criteria did not refer to education, the section was not in keeping with Article 5(1)(d).
36. It is not necessary, in my judgment, for section 25 to refer to education since, by the provisions of the Education Act 1996, education is compulsory for any child under 16, (see section 7) and optional thereafter. Consequently at the secure unit to which AK was sent in December 1998, there was a statutory obligation to provide him with education.
37. The decision in Koniarska (above) is helpful. The facts were that the applicant was 17 at the time of the secure accommodation order that was the subject of the application to the European Court. She had been diagnosed as suffering from a psychopathic disorder and there was a danger of her injuring herself or other persons. The Court found that:

"There could thus be said to be both medical and social reasons for her detention."

38. The Court then considered the applicability of Article 5 (1)(d), and whether it covered her detention under a section 25 order. The Court said that the only question was whether the detention was "for the purpose of" educational supervision. It considered the decision in Bouamar (above) and noted that the orders were not isolated orders for detention but were made in the context of a long history of efforts to ensure the best possible upbringing of the applicant, and that the local authority considered that the applicant needed to be placed in secure accommodation. The Court next noted that:

"the applicant had passed the school leaving age, and apart from the secure accommodation orders could not have been required to attend continuing education. However, the relevant parts of Article 5 (1)(d) of the Convention are limited to the detention of "minors", and not to the detention of persons below the official school leaving age. The mere fact that the applicant aged 17, could no longer have been required to attend ordinary school does not taint her detention under a specific order, provided that the detention was indeed " for the purposes of educational supervision."
The Applicant claims that the detention was not "for" the purpose of educational supervision, but that any education which was offered was purely incidental to the real reason for the detention, which was (in respect of the first order) "a need for protection and containment pending the actioning of her care plan.
The Court considers that, in the context of the detention of minors, the words "educational supervision" must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned. The Court has no doubt that the orders made by the Magistrates Courts on the 23^rd November 1995 and 23^rd February 1996, on the application of the local authority, were capable of constituting part of the "educational Supervision" of the applicant.
As to the reality of the educational provision in the present case, the Court notes that Glenthorne, to which the applicant was sent, is a specialist residential facility for seriously disturbed young people. As part of its multi-disciplinary approach, it provides an educational programme in which young people are taught in groups of three or four, or sometimes on a one-to-one or one-to-two basis. Until January 1996 the applicant attended a full range of classes, and that even after an incident with another student she attended some classes and took part in life skills and social skills programmes. The fact that the number of classes attended by the applicant was limited because she chose not to go cannot affect the underlying position, which was that extensive educational provision was made, and the applicant benefited from it to a certain extent. The present case is therefore to be distinguished from the above-mentioned Bouamar case, in which the applicant was detained " in a remand prison in conditions of virtual isolation and without the assistance of staff with educational training.
The Court therefore finds that the applicant´s detention from 23^rd November 1995 until 29^th April 1996 was justified under Article 5(1)(d) of the Convention as it was the detention of a minor " for the purpose of educational supervision".
It follows therefore that this part of the application is manifestly ill-founded within the meaning of Article 35 (3) of the Convention and it must be rejected pursuant to Article 35(4)."

39. All the other grounds were rejected and the application was declared inadmissible. It is interesting to note that the Court did not express any criticism of the statutory framework of a secure accommodation order. It found that the circumstances in which the secure accommodation order was made were covered by Article 5 (1)(d). Those circumstances bear in many ways a close resemblance to the facts of this appeal. In my view, the decision in Koniarska is determinative of this part of the appeal and it is clear that Article 5(1)(d) covers the making of a secure accommodation order in respect of AK.
40. However, Miss de Haas submitted that a young person over 16 could be detained under section 25 without any requirement under English law that he should receive education. In a secure unit, which by its nature provides for those under 18, education is likely to be available. Miss Koniarska was 17 and was receiving educational supervision at her secure unit. Theoretically there might be circumstances in which a section 25 order was made in respect of a child under 18 where the words "for the purpose of educational supervision" did not cover the facts of that particular case. Miss de Haas argued that that possibility vitiated the entire section and made the section incompatible with Article 5.
41. I, however, reject that argument and agree with the submission of Mr Garnham that a distinction is to be drawn between a complaint that a step taken by a local authority pursuant to a power granted by statute is in breach of an Article of the Convention, and a complaint that the statutory provision is itself incompatible with the Article. The duty of the English court under the Human Rights Act is to attempt to find a compatible interpretation. If a compatible interpretation can be found, there is no justification for a declaration of incompatibility. Mr Garnham referred us to an extra-judicial observation of Lord Cooke of Thornhill who said:
"Section 3(1) will require a very different approach to interpretation from that to which the United Kingdom courts are accustomed. Traditionally the search has been for the true meaning, now it will be for a possible meaning that prevent the making of a declaration of incompatibility." (see Lester and Pannick: Human Rights Law and Practice at 2.3.2. (Footnote 2))
42. I respectfully agree with Lord Cooke. If the situation postulated by Miss de Haas did arise, it would be the application of a section 25 order to a situation that would be a breach of a Convention right. That such a situation might arise is not in my judgment a reason for declaring that the section itself is incompatible with Article 5(1)(d). In Bouamar (above at para 52), the young man (who was under 18) was placed on 9 occasions for a total period of 119 days in a remand prison. He was placed in virtual isolation without the assistance of staff with educational training. The Court pointed out that his confinement could not be regarded as furthering any educational aim. At the time there was, in that part of Belgium, no closed institution able to accommodate highly disturbed juveniles. The Court found that there was a breach of Article 5. The contrast between the facts of that case and the present appeal is obvious. Having said that, it is interesting to see that in Bouamar (above) that the European Court also said at paragraph 50:

" The Court notes that the confinement of a juvenile in a remand prison does not necessarily contravene sub-paragraph (d), even if it is not in itself such as to provide for the person´s ´educational supervision´. As is apparent from the words ´for the purpose of´ (´pour´),the ´detention´ referred to in the text is a means of ensuring that the person concerned is placed under ´educational supervision´ but the placement does not necessarily have to be an immediate one."

43. In each case where a secure accommodation order is applied for, the English court, at any level, must have the requirements of Article 5 (1)(d) in mind when it is considering the relevant criteria, and thereby ensure the compatibility of the section with the Convention right.
44. Miss de Haas raised issues in her written submissions under Articles 3, 6 and 8 but, rightly in my view, did not pursue them. It is not necessary for me to deal with any of them. I should, however, like to comment on the way in which the local authority gave AK every opportunity to take part in these proceedings. Having been assessed as having a mental age of 8, one might raise an eyebrow at his ability to give instructions and his separate representation at various proceedings including before this Court. But there is no doubt that it has been very beneficial for him to be allowed to play a part, and to have some understanding of the legal procedures which have the effect of depriving him of his liberty. I should like to commend the local authority for its careful, conscientious and sensitive approach to this very difficult case and to ensuring that AK has been able to play such a full part in it. I would dismiss this appeal.
45. The issue of damages does not therefore arise but, for the reasons given in the judgment of Judge LJ, which I have had an opportunity of reading in draft, I agree that there would be no basis for a claim in damages against either the court or the local authority.

Application for a new secure accomodation order.
46. I turn now to the application by the local authority for a new secure accommodation order. It is obvious from the wealth of evidence presented to us that, although AK has made progress in the secure unit, he remains a serious risk to others and is at risk himself from others. It would be entirely wrong to expose others, especially young female children, to the danger that he would pose if he were in a non-secure environment and he would be unlikely to be able to manage within the community without risk to himself. In the light of the evidence before this court, and for the reasons given in the judgment of Thorpe LJ, which I have had an opportunity of reading in draft, in my view, there should be a further secure accommodation order to run for 4 months from 16 October 2000.
47. I would therefore grant the application of the local authority for a secure accommodation order until 16 February 2001.
THORPE LJ.
PART 1
48. In my judgment this appeal fails comprehensively. Despite Miss de Haas' valiant efforts most of the arguments advanced in her skeleton argument, for instance her reliance on Articles 3, 6 and 8, crumbled at the first touch. In the end the only question for determination is whether the order of 30 June 2000 breached A's rights under Article 5 of the Convention on and after the 2 October.
49. On its facts this is an extreme case. The principal of the secure unit said on 26 September that AK was the most dangerous young person he had come across in 23 years of experience. The problems of adolescent dangerousness confront all the states of Europe and, although solutions may vary, all necessitate the deprivation of liberty in extreme cases. It would affront common sense to suggest that the human rights of those detained are thereby inevitably abused. The right to liberty can not be absolute. It has a counterbalancing duty to refrain from behaviour that is both anti-social and criminal. In the case of minors decisions of the European Court make plain that the right is not absolute but in certain circumstances qualified. Those circumstances are not confined to the exceptions defined in Articles 5, (a) - (f).
50. The first issue is therefore whether AK has been deprived of his right to liberty guaranteed by Article 5(1). As a matter of first impression the answer must be yes. Secure accommodation is defined in the section itself as `accommodation provided for the purpose of restricting liberty'. However the order authorising the restriction of AK's liberty was made on the ground that, if kept in any other accommodation, he was likely to injure himself or other persons.
51. Thus the primary purpose of the restriction was protective, both of AK and of others. The secondary purpose was corrective, to enable trained and skilled professionals to teach AK to modify his anti-social tendencies. There is no punitive purpose or element. It is AK's tragedy that he is profoundly disabled not only cognitively but in lacking the internal boundaries that safeguard the majority from anti-social behaviour.
52. Without the restriction of AK's liberty there would be a disastrous reduction in the prospects of helping AK during these most formative years to overcome or reduce his disability by the delivery of education in its broadest sense. In truth the restriction is vital for the promotion of his welfare which is in reality the court's paramount consideration. Protective regimes such as secure accommodation under the Children Act 1989 and guardianship under the Mental Health Act 1983 may be restrictive of liberties but are not necessarily so. Each case will depend on whether those applying the regime exercise proper responsibility in ensuring that statutory or common law safeguards are not breached and whether they remain faithful to the primary protective purpose of the regime. In a case of Re W (Secure Accommodation Order: Attendance at Court) [1994] 2 FLR 1092 it was submitted to Ewbank J by counsel for the child that a section 25 order was equivalent to a custodial order in a criminal court. Ewbank J rejected that argument saying:
"This jurisdiction is entirely different. It is, as the Official Solicitor said, a benign jurisdiction. It is to protect the child, sometimes from others and sometimes from itself, and in some cases it is necessary in order to protect the child and to act as a good parent would act to curtail the child's liberty for a time."
53. This analysis emphasises that plainly not all restrictions placed on the liberty of children constitute deprivation. Obviously parents have a right and a responsibility to restrict the liberty of their children, not only for protective and corrective purposes, but also sometimes for a punitive purpose. So acting they only risk breaching a child's Article 5(1) rights if they exceed reasonable bounds. Equally parents may delegate that right and responsibility to others. Every parent who sends a child to a boarding school delegates to the head teacher and his staff. A local authority may even send a child to a school that provides 52 week boarding facilities. Then restrictions on liberty imposed by the school do not amount to a breach of the pupils rights under Article 5(1) unless the school betrays its responsibilities to the family.
54. This reality is, it seems, well recognised in European based law. As was said in Nielsen v Denmark 7 EHRR 175 at para 61:
"The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child's liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognised and protected by the Convention, in particular by Article 8. Indeed the exercise of parental rights constitutes a fundamental element of family life."
1. 55. Whilst Nielsen was a hospitalisation case, in the following year in the case of T v Austria the court considered a complaint against the accommodation of children in a public children's home. In reliance on paragraph 61 of the Nielsen judgment the complaint was rejected since the applicants had not shown that the conditions in the home deprived the children of their liberty.
56. The European authority most relevant to the determination of the question of whether secure accommodation in our jurisdiction necessarily curtails a deprivation of liberty is the recent decision of the court in the case of Koniarska v UK. The decision is on the admissibility of complaints brought by Lucy Koniarska following her accommodation at Glenthorne Centre authorised by secure accommodation orders under section 25. Her complaint under Articles 5, 3 and 8 were all held to be inadmissible. However her contention that she had suffered a deprivation of liberty was not ruled inadmissible. Only because the deprivation was justified under Article 5(1)(d) was that complaint ruled inadmissible. The court's reasoning is to be found at page five where it is stated:
"The court recalls at the outset that in its Nielsen v Denmark judgment it found that Article 5 was not applicable to the hospitalisation of the applicant as that hospitalisation was a responsible exercise by the applicant's mother of her custodial rights in the interest of the child. That reasoning cannot be transposed to the present case as, although the local authority had custodial rights over the applicant by virtue of the care order which was still in force, the orders placing the applicant in secure accommodation were made by the courts. There is no question of the respective courts having custodial rights over the applicant, and so Article 5 applies in the present case."

57. Mr Garnham emphasises that this finding for the applicant only took her across the threshold and that the government would have prevailed on any final determination since it would have convincingly demonstrated the fallacious reasoning in the passage cited. I accept Mr Garnham's submission. As I will demonstrate when I come to the United Kingdom authorities, a secure accommodation order is created by the local authority in the exercise of its statutory duties. The role of the court is essentially supervisory, a role undoubtedly created by parliament as a safeguard against unjustifiable or superfluous detention.
58. From these European cases Mr Garnham develops his submission that in consequence of the interim care order of 1 January 1999 the local authority share parental responsibility with AK's parents. The local authority is therefore in law doing no more in meeting AK's needs by arranging for him to be cared for at the secure unit (necessarily under the terms of a section 25 order) than does the parent of a less disabled 15 year old who sends his child to a boarding school. I see considerable attraction in that argument but it does not seem to me to depend for successful foundation on the existence of an interim care order in this case. In a sense that is a fortuitous factor which results from the development that at one stage, although not now, the father seemed to contemplate exercising his parental right to remove AK from secure accommodation.
59. Mr Garnham in his submissions emphasises that the making of the interim care order brings section 22(3)(a) into play. But AK would equally be entitled to the protection of that sub-section as an accommodated child. The interaction of sections 22 and 25, as well as the respective functions of the local authority and the court in the creation of a section 25 order, were very clearly explained by Hoffman LJ in a case of Re M (Secure Accommodation Order) [1995] 1 FLR 418 when he said:
"The function of the court under section 25 is in my view to control the exercise of power by the local authority rather than to exercise an independent jurisdiction in the best interests of the child.
What form should this control take? Sub-section (3) says that the court's duty is to determine whether `any relevant criteria' are satisfied. What are the relevant criteria? .... In my judgment the criteria applied by the court must be the same as those applicable to an initial decision by the local authority. These include not only the question of whether para (a) or (b) of section 25(1) is satisfied, but also having regard to the local authority's general duty under section 22(3) to safeguard and promote the welfare of the child, subject to the important qualification in section 22(6):
`If it appears to a local authority that it is necessary, for the purpose of protecting members of the public from serious injury, to exercise their powers with respect to a child to whom they are looking after in a manner which may not be consistent with their duties under this section, they may do so.'
It seems to me that the question of whether a decision to keep the child in secure accommodation would be in accordance with these statutory duties imposed upon the local authority must be among the `relevant criteria' to be considered by the court under section 25(3). It is said that the mandatory language of sub-section (4) - if the court determines that the criteria are satisfied, it `shall' make an order - suggests that the criteria must involve giving a yes or no answer to a question of fact rather than a flexible application of general principles. But the mandatory element in sub-section (4) is to some extent illusory. True, the court shall make an order, but the maximum period for which he may be kept is a matter for the court's discretion. Since there is in practice little difference between an order for a very brief period and no order at all, the use of the word `shall' does not seem to me to carry much weight. Thus I think that the duty of the court is to put itself in the position of a reasonable local authority and to ask, first, whether the conditions in sub-section(1) are satisfied and secondly, whether it would be in accordance with the authority's duty to safeguard and promote the welfare of the child (but subject to the qualification in section 22(6)) for the child to be kept in secure accommodation and if so, for how long."
60. Thus I conclude that section 25 is to be categorised like section 34 as a section which gives the court a role to oversee the case management proposed by the local authority and only to sanction by order such proposals as fulfil the stated statutory criteria and are otherwise demonstrated to meet the welfare consideration. So the restriction on AK's liberty is the consequence of a professional judgment as to what sort of accommodation best meets his needs, a judgment subsequently scrutinised and approved by a judge in accordance with the statutory requirement.
61. For these reasons I accept Mr Garnham's first and bold submission that the order of 30 June did not breach AK's section 5 rights since the deprivation of liberty was a necessary consequence of an exercise of parental responsibility for the protection and promotion of his welfare. I am not deterred by Mr Ryder's skeleton, `It is accepted that the purpose of secure accommodation is to restrict liberty' and his subsequent rejection of the opportunity to adopt Mr Garnham's submissions.
62. Fortunately my dissent from the opinion of my lady and my lord is of little moment since we are all very clear that if Mr Garnham fails on his first submission his case in reliance on Article 5(1)(d) must succeed. Indeed in my view it is unanswerable. The recent decision in Koniarska, ruling that a contention indistinguishable from that advanced by Miss de Haas was inadmissible, confirms a conclusion that is already clear from the wide construction of the phrase `educational provision'. In deciding that the contention was inadmissible the court in Koniarska stated:
"In the context of the detention of minors, the words `educational supervision' must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned."
63. A decision by the court that a complaint is inadmissible amounts to a decision that it is unarguable as Article 35(3) makes plain:
"The court shall declare inadmissible an individual application .... which it considers incompatible with the provision of the convention ...., manifestly ill-founded, or an abuse of the right of application."
64. Further I accept Mr Garnham's submission that education is unlikely to be and need not be demonstrated to be the sole purpose of the detention. Article 5(1)(d) is satisfied if education is shown to be one of the purposes of detention as the case of Bouama v Belgium 11 EHRR 1 demonstrates. Only when there is no present or reasonably imminent educational provision does the Article 5(1)(d) defence fail. The relevant paragraph of the judgment in Bouama is 50 where it is stated:
"The court notes that the confinement of a juvenile in a remand prison does not necessarily contravene sub-paragraph (d), even if it is not in itself such as to provide for the persons `educational supervision'. As is apparent from the words `for the purpose of' (`pour'), the `detention' referred to in the text is a means of ensuring that the person concerned is placed under `educational supervision', but the placement does not necessarily have to be an immediate one. Just as Article 5(1) recognises - in sub-paragraphs (c) and (a) - the distinction between pre-trial detention and detention after conviction, so sub-paragraph (d) does not preclude an interim custody measure being used as a preliminary to a regime of supervised education, without itself involving any supervised education. In such circumstances, however the imprisonment must be speedily followed by actual application of such a regime in a setting (open or closed) designed and with sufficient resources for the purpose."

65. Finally Mr Garnham rightly refers to the duty imposed on parents by section 7 of the Education Act 1996 to cause children of compulsory school age to receive suitable and sufficient full-time education. Since AK is a child in care that statutory duty falls on the local authority. No one has suggested the authority is in breach of that duty.
66. For all those reasons there can be no doubt in my mind that the Article 5(1)(d) defence is well made. There is relatively clear evidence from Dr D to suggest that AK's detention could equally be justified under Article 5(1)(e) were the issue investigated and ventilated. On the same basis a second alternative defence appears to lie under Article 5(1)(c).
67. Save in one area of disagreement I am in complete accord with the judgments of my lady and my lord which I have had the opportunity of reading in draft. I agree with the orders that my lady proposes.

78. A further factor seems undoubtedly to have been the absence of services in the locality. At a meeting of 14 June attended by all the professionals including Dr D it was agreed that the best plan for AK was to remain at the secure unit and for therapeutic work to be undertaken there by outside experts. At the hearing on 30 June Dr D expressed the hope that the closure of the Glenthorne Secure Treatment Unit would result in two staff members, Dr Jasper and Dr Eps, being consequentially liberated to provide AK with the therapy that he required. However I note that Dr Jasper is a consultant adolescent forensic psychiatrist and Dr Eps a consultant clinical psychologist. In any event although Dr D's report of 12 October stated that their work had commenced on 10 October, during the hearing we were told that there had been some continuing delay. Mr Ryder told us two other things. First, although an art therapist had been identified in the locality since 14 June, no arrangements had yet been made for her to meet AK. Second I understood Mr Ryder to say that in the area there is only one consultant child psychotherapist in an NHS post with an existing case load that renders further referrals impossible.
79. From this review I draw the following conclusions:

i. There is an unresolved professional disagreement as to AK's therapeutic needs. On the one hand Alix Brown advised the immediate commencement of long-term psychotherapy. On the other hand Dr D favoured art or play therapy and/or the expertise of colleagues in forensic psychiatry. Dr D's additional view set out by Mr Ryder in his written response submitted to the court on the third day of the appeal:
"In Dr Daly's view psychotherapy commenced after A was expelled from nursery and has continued thereafter."
Whilst I understand that view in the sense that AK has received extraordinary professional commitment in an endeavour to correct his behavioural problems, it was clearly not what Alix Brown contemplated in her advice to the court in May.
ii. Both in the locality of the secure unit and in the local authority's own area there is a dearth of consultant child psychotherapy appointments within the NHS. Therefore what AK ideally requires may have to yield to what is available given that there is no other realistic placement for him at the present time.
iii. At least in this case there is no financial impediment to meeting AK's needs. To their great credit the `W' NHS Trust has agreed to bear the cost of whatever services have to be bought in to meet AK's needs.
iv. This is as complex and as worrying a case as any that I have ever met. For AK time is of the essence if he is to continue this year's progress to achieve any sort of adult independence. Every month within the formative years between his current age and his majority is a month of opportunity, the loss or waste of which may prove very damaging to his longer term prospects.
v. It is a matter of concern that AK has never been referred to a consultant child and adolescent psychiatrist for assessment and referral for treatment.
iv. It is imperative that AK's case be referred to a national resource of ultimate expertise. During the course of argument it was agreed that the Tavistock and Portman NHS Trust was best qualified to advise as to what could be done as well as to what should be done. It does not seem to me necessary to direct such a referral since Mr Ryder on instructions confirmed his client's readiness to refer the case to the Tavistock/Portman. Whereas I was concerned to hear from Mr Ryder that Dr D is adamantly opposed to any further referral, I was relieved to hear that she herself regards the Portman Clinic as the centre of excellence in the treatment of perverted and aggressive sexual urges and fantasies. I would very much hope that the expertise of the Tavistock/Portman Clinic will foster collaboration between all the mental health professionals, particularly in the interests of a good outcome for AK. In my opinion a letter of instruction to Dr Trowell at the Tavistock/Portman should be agreed by all parties and should be expedited. Whether the Tavistock/Portman will wish to assess AK at the secure unit is entirely a matter for their discretion. Though the guardian and Dr D have expressed reservations at intrusive professional involvement, the court can be confidant of Tavistock/Portman sensitivity in this area. Until their assessment is available the re-involvement of Dr Jasper and Dr Eps could be deferred as should the introduction of an art therapist. Equally there would be little point in a further meeting of professionals already involved to address therapy issues unless that meeting flowed from a request from the Tavistock/Portman.
80. The second major area of concern arising out of a review of the past nine months is the cessation of mobility visits. The records show that in May AK had three days out from the secure unit, in June he had four days out, and in July he had six days out. On 5 August he visited the American working farm. However on the following day AK at the invitation of two members of staff spoke of his sexual thoughts and fantasies. What he then said caused understandable professional concern. The view of staff was that mobility visits must be suspended and Dr D's views should be sought on the implication of these disclosures. On 10 August KD discussed AK's position with Dr D's team at Hospital P. They did not feel that they possessed the necessary level of expertise to undertake therapeutic work with AK. So throughout the remainder of the school holidays AK was deprived of either home visits or day trips. His mother understandably felt that he was being punished for his openness.
81. I note that a visit to Birmingham's Sea World Centre on 15 April had raised concerns as a result of remarks made by AK to his social worker after the visit. That led to an internal assessment of future mobility visits involving direct work with AK during the course of which AK made a variety of statements about his past exposure to or involvement in sexual activity. Despite these revelations in April, thereafter the mobility visits had not only continued but increased in frequency without any mishap.
82. Furthermore I note that on 26 September, during the course of a conversation with the guardian AK said:
"I think the fantasies in sexualised behaviour are in the past .... as I am growing up I am learning to grow out of it. I've said A you need to grow out of these things and you'll get somewhere with your life if you do."
83. Equally in interview with Dr D on 12 October AK said that as far as his sexual behaviour is concerned he feels that this is resolved because he has written it all down in a book and all he is thinking about now is schoolwork. I have not heard any explicit evaluation from the guardian or Dr D of these reassurances. However Dr D records that when she checked with the staff on 12 October they did not accept AK's assertions although they accepted that he had learned to recognise when his behaviour is becoming sexualised and to seek their help to contain the onset.
84. From this review I conclude, of course with the advantage of hindsight, that there should have been greater urgency in the determination of whether and for how long AK's words on 6 August required the suspension of outside visits. At least Mr Ryder was able to inform us that AK had enjoyed a home visit on 8 October and that a further visit had been fixed for 29 October. There needs to be a firm foundation for any continuing withdrawal of occasional trips, to the shops and to the cinema for example, such as AK enjoyed in July.
85. In reviewing the written reports covering the recent past I had an additional concern that genetic and hormone testing recommended by Dr D on 29 February had still not been carried out. However that concern was answered at the hearing by Mr Ryder's written response.
86. In summary, whilst I am completely persuaded that this court has no alternative but to make the secure accommodation order which my lady proposes it is incumbent upon all who hold professional responsibility for AK during its course to ensure that as well as protective it is also enhancing in order to ensure that it could not be interpreted by AK or by anyone else as either punitive or stunting his potential for continuing progress. I am relieved that my lady has made arrangements to ensure that at the end of the period prescribed by our order there will be a review by Wall J who will review with hindsight the months that we view prospectively and will with that advantage make such further orders under Parts III and IV of the Act as are best calculated to direct AK's future progress.
JUDGE LJ
87. The circumstances in which a secure accommodation order may be made under s25 of the Children Act 1989 are prescribed by statute. Therefore to evaluate the sustained submission by Miss de Haas QC that such an order is incompatible with Article 5 of the European Convention of Human Rights, the starting point is the relevant statutory framework.
88. Part III of the Act imposes substantial obligations on Local Authorities to provide support for children and their families. There is a duty
".........(a) to safeguard and promote the welfare of their children within their area who are in need; and
(c) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs." (s17(1))"
A child is "in need" if
"..... (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority......;
(c) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services ......"
In this context "health" refers both to physical and mental health, and "development" is concerned with the child's "physical, intellectual, emotional, social or behavioural development".
89. The child "in need" must be provided with accommodation if he has been lost or abandoned, or there is no-one with parental responsibility for him, or when the person caring for him has been prevented from providing suitable accommodation or care (s20). The provision of such accommodation is not sustainable in the face of objection from a person with parental responsibility who is willing and able to provide accommodation, or arrange for it, and, unless a residence order or care order is made, the child may be removed from the accommodation. Provision must also be made by the local authority for the child who has been put under police protection or detained by the police. In such cases, too, the parental wishes cannot supervene.
90. Where the child is being "looked after" by the local authority, (s22, that is in the care of the local authority under s31, or provided with accommodation) the focus remains the child's welfare, which must be safeguarded and promoted. Moreover the authority must "advise, assist and befriend (him) with a view to promoting his welfare when he ceases to be looked after by them". (s24(i)). Unfortunately as the public needs to be protected from some of the children who are being looked after by the local authority, for that purpose only, the welfare of the child may have to yield its priority to the need to protect the public from serious injury (s22(6)).
91. In addition to children who are being "looked after" by the local authority, there are those for whom there is a responsibility much more akin to that of a parent. No doubt to reflect this increased responsibility, and the corresponding degree of interference in the life of a child, and perhaps also his parents, care and supervision orders under s31 are not imposed on a child by the local authority Any order is made by the court, which must be satisfied that:
".......(a) the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to
(i) the care given to the child, or likely to be given to him if the order were not made, not what it would be reasonable to expect a parent to give to him; or
(ii) the child's being beyond parental control."
S31(10) defines "harm" as "ill-treatment or the impairment of health or development" and health and development are defined in precisely the same wide terms as before.
92. In the present case AK is subject to an interim care order.
93. These various strands in the arrangements for children who are being looked after by and subject to a care order culminates, where necessary, in the provision of secure accommodation under s25. For present purposes, the significant feature of such an order is that the liberty of the child will be restricted. That indeed is its express purpose, repeated in the Children (Secure Accommodation) Regulations 1991, and confirmed in Guidance to Secure Accommodation Orders. This is quite unequivocal in its advice, emphasising as it does that a secure accommodation order is "a serious step which must be taken only when there is no genuine alternative which would be appropriate. It 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 relevant time, because of inadequacies in staffing, because the child is simply being a nuisance or runs away from his accommodation and is not likely to suffer significant harm in doing so, and never as a form of punishment". The order creates additional control over the child, and extends both to the child who is absconding, that is leaving accommodation as and when he wants to and so putting himself at risk of serious harm, and to the child in care because he is beyond parental control.
94. Even if it is faithfully applying the Guidance to Secure Accommodation Orders, the local authority, again, cannot impose such an order on its own initiative. The child's liberty may only be curtailed if the order is authorised by the court. The jurisdiction to make it depends on the local authority satisfying the court
".....(a) that
(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
(ii) if he absconds, he is likely to suffer significant harm; or
(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons."
In Koniarska's Application (12 October 2000), the language used in its judgment by the Commission suggests a misapprehension of this statutory position. The local authority's "custodial rights" over the child continued throughout, and the order made by the court authorised the use of secure accommodation. The court's involvement represented not an interference with the liberty of the child, but rather a safeguard against unacceptable and unjustified interference with it.
95. It is worth re-emphasising that it is a pre-requisite to the order that the child is being "looked after" by the local authority. There is therefore a continuing duty to safeguard and promote the welfare of the child. This point was emphasised by Hoffmann LJ in Re M (Secure Accommodation Order) [1995] 1 FLR 418 at 427 where he said,
"The duty of the court is to itself in the position of a reasonable local authority and to ask, first, whether the conditions in subs (1) are satisfied and secondly, whether it would be in accordance with the authority's duty to safeguard and promote the welfare of the child (but subject to the qualification in s22(6)) for the child to be kept in secure accommodation and if so, for how long."
The final consideration is that the child also needs, and must continue to be provided with education, in the formal sense. Where the local authority "propose to provide accommodation.... in an establishment at which education is provided for children who are accommodated there", they must embark on a sensible consultation process with the appropriate local education authority. The statutory obligation to ensure that formal education continues (s7 of the Education Act 1996), at any rate until the child reaches the age of sixteen, survives the making of a secure accommodation order.
96. The order cannot be made in respect of a child subject to "punishment" imposed on conviction of major crimes (s53 of the Children & Young Persons Act 1933), or detained under formal procedures for the purposes of the Mental Health Act. Unfortunately there is no avoiding the harsh reality that some children who have neither been convicted of very serious offences nor made subject to orders under the Mental Health Act, are likely to injure themselves, or others, unless they are accommodated in secure premises.
97. In summary s25 therefore forms part of the overall framework for the support and welfare of children who present particular difficulties and who for their own protection and that of others, and to ensure their continuing education, require that the accommodation in which they are being looked after should be secure. The necessary authorisation in domestic law, enabling the local authority to restrict the liberty of such children is provided by the court order. Although the maximum length of any order must be specified, the question whether this authorisation should be used, and if so for how long and in what degree, remains with the local authority. If and when the statutory conditions cease to apply, the order may no longer be enforced. (LM v Essex County Council [1999] 1 FLR 988.
98. Miss de Haas argued that the order purporting to provide the legal justification for the restriction on AK's liberty was deficient for this purpose, not because the statutory criteria were not established, nor the appropriate procedure followed, but because such an order, even when the statutory criteria are established, and proper procedures followed, contravenes Article 5 of the ECHR, or more particularly, that the order falls outside the narrow ambit of the prescribed circumstances in which an individual may be deprived of his liberty. In short therefore the use of secure accommodation for the purposes of restricting liberty under s25 is incompatible with Article 5. S25, which purported to provide the justification for the restriction on AK's liberty, should therefore be declared "incompatible" with a Convention right in accordance with s4(2) of the Human Rights Act 1998, and indeed damages should be awarded for AK's detention, in accordance with Article 5.5. Article 5 provides:
"1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by the law:
a the lawful detention of a person after conviction by a competent court;
b the lawful arrest or detention of a person for non-compliance with the lawful order of a court or an order to secure the fulfilment of any obligation prescribed by law;
c the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."
99. Mr Garnham's first submission on behalf of the Secretary of State was that AK had not been deprived of his liberty for the purposes of Article 5. The local authority had simply exercised parental responsibility for him in his own best interests. There was some interesting discussion about the way in which parents restrict the movements of their children from time to time, by, for example, putting young children into bed when they would rather be up, or "grounding" teenagers when they would prefer to be partying with their friends, or sending children to boarding schools, entrusting the schools with authority to restrict their movements. All this reflects the normal working of family life, in which parents are responsible for bringing up, teaching, enlightening and disciplining their children as necessary and appropriate, and into which the law and local authorities should only intervene when the parents' behaviour can fairly be stigmatised as cruel or abusive.
100. It is not necessary to deal with any argument that such parental behaviour might constitute an interference with a child's liberty or contravene his "human rights". No such absurdity was advanced. What however does arise for decision is whether what I have described as normal family life goes anywhere near what the local authority is empowered to do by a secure accommodation order.
101. By definition, the making of the order means that if accommodation less than adequate for the purpose of restricting liberty is provided, the child is likely to suffer significant harm because there is a history and continuing risk of absconding with a likelihood of significant harm or injury to himself or others. This means that he requires far more supervision and attention than any normal parent could reasonably provide or be expected to provide, and in accommodation which none of them have, that is accommodation provided for the very purpose of restricting a child's freedom. This is miles away from "grounding" a teenager, or ensuring that a group of teenagers at a boarding school are all back within school bounds by a certain time each evening, or any other manifestation of normal parental control. If the restrictions necessarily imposed on AK for his own safety and that of others were imposed on an ordinary boy of fifteen, who did not pose the problems requiring a secure accommodation order, in my view, there would be a strong case that his parents were ill-treating him. As it is, the local authority have been obliged, as a "last resort", to seek authorisation to impose restrictions on the boy's liberty which would otherwise be unacceptable, whether imposed by his parents or anyone else. That, as it seems to me, is the point of the unequivocal statutory language. The purpose is to restrict liberty, and there would be no point in such a restriction or the need for it to be authorised by the court, if it were not anticipated that much more was involved than ordinary parental control. It would have been enough to leave the local authority to exercise its parental responsibilities under s33(3)(a) in relation to care, or to provide that the local authority should exercise such parental responsibilities in relation to children it was looking after, or to re-enact s10(2) of the Child Care Act 1980, in a modified form, so that it would read something like "a local authority shall ..... have the same powers and duties with respect to a person who is being looked after by it .... as his parents or guardian would have and may ...... restrict his liberty to such extent as the authority considers appropriate".
102. In short, although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order does not represent normal parental control.
103. This conclusion is reinforced by the further consideration that an order under s25 may be made in respect of a child who is not subject to a care order under s31. As already indicated, it is enough that the local authority is "looking after" the child, and if it is doing so under s22(1)(b) (provision of accommodation) rather than s22(1)(a) (care) parental responsibilities are not in issue. In other words the secure accommodation order with its restrictions on liberty may be granted to the local authority in respect of children who are not in care and in relation to whom the local authority has no parental responsibility. This tends to confirm that s25 is intended to reflect far wider restrictions on liberty than those which arise in a normal family situation.
104. In this case the evidence of the regime adopted for AK demonstrates that after the order under s25(4) was made he was deprived of his liberty.
105. Miss de Haas submitted that the purported justification, that is the order of the court under s25, was outwith Article 5.1(a)-(f). For all the understandable emphasis she placed on the thrust of decisions of the European Court of Human Rights that Article 5 itself provides a "comprehensive" or an "exhaustive" definition of the circumstances in which an individual may be deprived of his liberty (see for example Ireland v UK [1978] 2 EHRR 25), there is at least one critical respect in which the court itself accepted that the principle is not absolute.
"The care and upbringing of children normally and necessarily require the parents or an only parent to decide where the child must reside and also impose, or authorise others to impose, various restrictions on the child's liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects ...... Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognised and protected by the Convention." (Neilsen v Denmark [1988] 11 EHRR 175 at 191).
106. It is therefore clear that, notwithstanding the absence of any express reference to the position of a parent in Article 5, for the purposes of the Convention the liberty of a child may be constrained by anyone with parental responsibilities for him, properly exercising "custodial rights". Paragraph (d) is exclusively concerned with and limited to minors and although loosely described in conversation, or in oral argument as "education", the permitted restriction is in much wider language, "for the purpose of educational supervision".
107. This goes far beyond school. It is not just about the restriction on liberty involved in requiring a reluctant child to remain at school for the school day. It arises in the context of the responsibilities of parents which extend well beyond ensuring the child's attendance at school. So it involves education in the broad sense, similar, I would respectfully suggest, to the general development of the child's physical, intellectual, emotional, social and behavioural abilities, all of which have to be encouraged by responsible parents, as part of his upbringing and education, and for this purpose, an appropriate level of supervision of the child to enhance his development, where necessary, by restricting his liberty is permitted. If less were involved than this, there would be no purpose in including "educational supervision" as an express restriction on the right of a minor to liberty: the recognition of "custodial rights" and parental responsibilities would have sufficed. It is, of course, quite unreal for anyone to decide in theory, or for rigid guidelines to be laid down in advance, about the appropriate level of educational supervision which may be required by an individual child. The purpose of this order, and its implementation by the local authority, is to provide the best available environment to enable AK's education, both in the narrow and broad senses, under the degree of supervision and control necessary to avoid harm or injury to himself, and to improve his prospects of avoiding both in the long term as well as the immediate future. I should add, that if AK were to cause injury to others which in the remotest degree corresponded to his fantasies, apart from any injury to them, the end result would be significant harm to him, with the major risk of conviction for a desperately serious crime, and a correspondingly severe sentence.
108. In summary, the normal standards of acceptable parental control are undiminished by, indeed consistent with the Convention. Therefore the restriction in Article 5(1)(d) is specifically directed to the situation of those minors who are beyond such normal control. Prosecution and punishment do not invariably present the most efficacious solution to the behavioural problems of children and young persons, and their long term development, whether viewed entirely as a matter of their own self-interest or the general benefit of the community as a whole. There is much to be gained if the underlying causes of the misbehaviour of a child or young person can be examined and addressed. Hence the need to allow restrictions on the liberty of minors with such problems, which goes beyond normal parental control and allows for the educational supervision. The Convention is not an appropriate instrument for spelling out precisely what form this may take or its limits. As Mr Garnham's helpful analysis of the differing procedures adopted in many of the countries adherent to the Convention demonstrates, there are different traditions and regimes for dealing with troublesome as well as the criminal young. All these command respect, and the Convention is not an appropriate instrument for spelling out precisely what form this should take, and which particular regime is acceptable.
109. I have examined these conclusions by taking account of decisions from the European Court. Two features are of immediate significance. The first is that although the problems posed by children like AK are plainly anticipated in most, and I would assume every other, European country, there are so few cases involving juveniles or minors in which these issues have been examined, and the second is that where they have, they tend to confirm that the European Court would follow the same process of reasoning which I have endeavoured to explain.
110. In Bouamar v Belgium [1987] 11 EHRR 1 the European Court of Human Rights was considering statutory provisions for the judicial protection of juveniles. The orders available to the domestic court culminated in the power to place the juvenile in a State reformatory. Such reformatories are divided between "open" institutions, where the inmates live "under a regime of semi-liberty", and "closed" institutions - "for highly disturbed young people -" which presumably are entirely secure, certainly no less secure than the accommodation provided under a secure accommodation order.
111. The judgment of the court included the following passage, at p16:
"The court notes that the confinement of a juvenile in a remand prison does not necessarily contravene sub-paragraph (d), even if it is not in itself such as to provide for the persons' educational supervision.
As is apparent from the words `for the purpose of' (`pour'), the "detention" referred to ..... is a means of ensuring that the person concerned is placed under `educational supervision' but the placement does not necessarily have to be an immediate one.... However the imprisonment must be speedily followed by an actual application of such a regime in a setting (open or closed) designed and with sufficient resources for the purpose."
112. In short therefore, provided the inmate was receiving supervised education, the provision and use of closed institutions for very disturbed young people was not struck down.
113. In the very recent decision of the Commission in Koniarska, s25 itself was directly under consideration. The application was declared inadmissible. Significantly the Commission did not question or impugn the principle of a secure accommodation order. Moreover although Article 5(1)(e) might well have provided a proper justification for the restrictions on Koniarska's liberty, the Commission proceeded on the basis that the order fell within Article 5(1)(d).
114. The case was dismissed, in effect, as unarguable. The Court observed that,
"........ In the context of the detention of minors, the words `educational supervision' must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned. The court has no doubt that the orders made ..... on the application of the local authority, were capable of constituting part of the "educational supervision" of the applicant."
115. So far as this part of the judgment is concerned, I can see no sensible ground for distinguishing the decision in Koniarska from the present case.
116. Accordingly, in my judgment the principle is simply expressed: the concept of "educational supervision" goes well beyond either normal parental control or academic lessons taught in the classroom, but, to the extent that the arrangements for the welfare of the child interfere with his liberty beyond the interference envisaged in normal parental control, and to avoid any arbitrary exercise of power by a local authority, judicial authorisation is required. That is provided by s25(4). In this case the secure accommodation order was properly made. I can find no inconsistency or incompatibility between such an order under s25 and the practical application of the Convention rights under Article 5. A declaration of incompatibility should be refused.
117. I should briefly note that in the papers prepared before the hearing it was suggested on behalf of AK that his rights under Articles 3,6, and 8 had also been infringed. The arguments were not pursued at the oral hearing, in my view, rightly. Beyond that I shall make no further observation, save to add that, again, at the hearing no argument was addressed to the question whether the restrictions on AK's liberty may not have been justified under paragraph (c) (reasonably ..... necessary to prevent his committing an offence) or (e) (detention ..... of persons of unsound mind).
118. This conclusion means that it is no longer essential to consider the consequences which would have arisen if s25 had been declared incompatible with the Convention. Miss de Haas suggested that the consequence of any such declaration would have been that AK was entitled to damages in accordance with Article 5.5. This provides:
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation"
119. During the course of the argument I described the submission as "stunning". The time we have taken to reflect on our judgments has not diminished my sense of astonishment. In fairness to Miss de Haas, I must briefly explain why.
120. If the argument were correct the implementation of the Human Rights Act 1998, on 2 October 2000, would have produced a constitutional earthquake. Parliament would have undermined the principle of Parliamentary sovereignty, and revived Sir Edward Coke CJ's dictum in Bonham's case [1610] 8 Co 118a that ".......... the common law will controul acts of parliament and sometimes adjudge them to be utterly void.....", a principle identified by Coke in order to impose some fetter on the extravagant royal concept of the prerogative, a controversy eventually settled in this country by the Revolution of 1688. And it would effectively "set the judicial power above that of the legislature.....", emphatically described in 1765 by Blackstone in the 1st edition of his Commentaries, some 150 years before universal adult suffrage was established, as "subversive of all government". (For a still vivid analysis of Bonham's Case in its historical context, the relationship of the legislature and the judiciary, and the development of divergent constitutional routes in this country and the United States of America, see TFT Plunknett's article, first published in 1926, Bonham's Case and Judicial Review, Studies in English Legal History XIV.)
121. It may on another occasion be appropriate to examine whether the sovereignty of Parliament empowers it to dispense with or divert itself of its own or any part of its sovereignty, but so far as the Human Rights Act 1998 is concerned, this question simply does not arise. Neither this nor any other court is empowered to repeal or amend, ignore or act contrary to any single statute, or any part of any statute. To the contrary: the Act is carefully drafted to ensure that the court cannot and must not strike down or dispense with any single item of primary legislation.
122. The reason is simple. If satisfied that a statute is indeed incompatible with a Convention right, the most that the Human Rights Act 1998 empowers this court to do is to make an appropriate declaration. The declaration gives no right by way of compensation. S4(6) is quite unequivocal.
"A declaration under this section (`a declaration of incompatibility') -
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made."
123. The effect of a declaration of incompatibility is that remedial action may be taken by a Minister of the Crown to make whatever amendments to the primary legislation are thought necessary to remove the incompatibility. So, notwithstanding the declaration, the statutory provision continues in force until such time as it is amended, if indeed that ever happens. And until it does, the law which judges must apply includes the statutory provision which has been declared to be incompatible.
124. In R v DPP, ex parte Kebeline [1998] 3 WLR 972, at 981, Lord Steyn encapsulated the principle in unambiguous language:
"It is crystal clear that the carefully and subtlety drafted Human Rights Act 1998 preserves the principle of Parliamentary Sovereignty. In a case of incompatibility ..... the courts may not disapply the legislation. The court may merely issue a declaration of incompatibility which then gives rise to a power to take remedial action."
125. Miss de Haas suggested that on the basis that AK's detention under the secure accommodation order was incompatible with the Convention, then Article 5.5. created an enforceable right to damages, certainly with effect from 2 October. From that date there would remain no sufficient justification for the regime in to which the local authority had detained AK, or for the order itself. She referred to s9(3):
"In proceedings under this Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention."
126. From there she worked backwards through s7(1) to s6(1) which makes it
".....unlawful for a public authority to act in a way which is incompatible with a Convention right."
127. The simple answer to this submission is that s6(1) is expressly made subject to s6(2), and any subsequent reference to s6(1) in the Act is itself also subject to s6(2). This provides:
"Subsection (1) does not apply to an Act if
(a) as a result of one or more provisions of primary legislation, the authority could not have acted different; or
(b) in the case of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with Convention rights, the authority was acting so as to give effect to or enforce those provisions."
128. So far as domestic courts are concerned, even if s25 were incompatible with AK's Convention rights, it would continue to protect both the Court and the local authority from any claim under Article 5.5.
129. It may just be worth touching on the practical consequences of Miss de Haas' submission in the day to day running of the judicial system. On this basis this court would have seen fit to make a declaration of incompatibility. Nevertheless s25 would continue in force. Yet the right to damages under Article 5.5 would arise every time such an order was made, while simultaneously, judges up and down the country, when satisfied that the conditions leading to a secure accommodation order were established, would remain under a continuing obligation to apply s25. In some court buildings, one judge would be making an award of damages to a minor who had been deprived of his liberty on the basis of an s25 order: in the court next door, another judge would continue to make s25 orders in relation to different children. Indeed it is not too fanciful in some of the smaller courts to foresee the same judge making an order under s25 in relation to the first case in his list, and if Miss de Haas were right, in the afternoon case to assess damages for a child which had been made subject to an s25 order on an earlier occasion. It would be nonsense for the local authority, or the court, properly fulfilling the duties imposed on it by an unrepealed, unamended statute simultaneously to render itself liable to an order for damages in another domestic court on the basis of this Convention right. The end result would be that the court, and the local authorities, would abdicate their statutory responsibilities and in practice dispense with or fail to apply s25, while s25 remained on the statute book as the statutory scheme intended by Parliament to provide protection for children from injury and harm. The result would be, at best a constitutional mess, and at worst something of a constitutional crisis.
130. The Human Rights Act does not create a system of justice which leaves the domestic court floundering between primary legislation and the Convention and electing which is to be applied. Where incompatibility is found, generally speaking at any rate, the court is required to declare it. Nevertheless the law which the court must enforce is the law as it is, even if it is incompatible with the Convention.
131. Miss de Haas did not direct any argument to the consequences of a finding of incompatibility on the continued "detention" of AK in secure accommodation. I have not examined the potential difficulties which would arise, if Miss de Haas were right, in the context of Article 5.4. It is enough to record that they would be extreme. And, in view of the fact that a declaration of incompatibility would not be appropriate in this case, it has also been unnecessary to examine the additional arguments deployed by Mr Phillip Sales on this part of the case.
132. I agree both that the appeal should be dismissed, and that the application for a secure accommodation order should be granted.
Order: Appeal dismissed; no secure accommodation order until 16^th February 2001 and detailed assessment of the Appellant's costs.