SCOPE OF THIS CHAPTER
This procedure applies to the placements of Looked After children in secure accommodation under Section 25 Children Act 1989 - often referred to as being 'on welfare grounds'.
See also Remands to Local Authority Accommodation or to Youth Detention Accommodation Procedure which deals with Remands to Youth Detention Accommodation (which includes Secure Children's Homes, Secure Training Centres and Young Offender Institutions) in criminal proceedings.
In September 2022 Section 10, Use of Inherent Jurisdiction to Authorise a Placement Involving a Deprivation of Liberty was updated in line with case-law.
Derby City Council uses a Strengths Based Approach for all work with children and families.
- Secure Accommodation Criteria
- Children to Whom Section 25 Applies
- Period of Secure Accommodation
- Looked After Children Who May Not be Placed in Secure Accommodation on Welfare Grounds
- Decision to Place in Secure Accommodation
- Placements of Children under the Age of 13 Years
- Planned Placements
- Applying for a Secure Accommodation Order
- Support, Monitoring and Ending of Placements
- Use of Inherent Jurisdiction to Authorise a Placement Involving a Deprivation of Liberty
1. Secure Accommodation Criteria
Section 25 of the Children Act 1989 sets out the 'welfare' criteria which must be met before a Looked After Child may be placed in secure accommodation.
The 'welfare' criteria are that:
- The child has a history of absconding and is likely to abscond from any other description of accommodation; and
- If the child absconds, (s)he is likely to suffer Significant Harm; or
- If the child is kept in any other description of accommodation (s)he is likely to injure her/himself or others.
N.B: only one of these two criteria above need be established. The welfare principle (established in Section 1 the Children Act 1989), although it remains relevant, is not of paramount consideration under Section 25.
2. Children to Whom Section 25 Applies
Section 25 only applies to 'Looked After' children, i.e. those children:
- Who are accommodated (for at least 24 hours) under Section 20 Children Act 1989 (excluding those over 16 and accommodated in a community home under Section 20(5)); or
- Who are subject to a Care Order.
In exceptional circumstances, if a child is not 'Looked After' or the placement of the child is thought to constitute a deprivation of the child's liberty, (even though it is not its primary purpose), an application would need to be made to the High Court to exercise its inherent jurisdiction. Such an approach would require careful consideration and include a full review of the placement and the child's circumstances together with the Children's Services Legal Team.
2.1 Children Who Are 16 -17 Years of Age and Section 20 Accommodated
Children Act 1989 Section 20 provides:
- Section 20 (3) - Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him/her with accommodation.
- Section 20 (5) - A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote their welfare.
Re P (Application for Secure Accommodation Order)  EWHC 2971 (Fam) clarified the situation with regard to a child reaching the age of 16 years and Section 20 Accommodation:
- A child provided with accommodation under Section 20(3) Children Act 1989 may be made subject to a Secure Accommodation Order;
- However, a child provided with accommodation under Section 20(5) Children Act 1989 cannot be made subject to a Secure Accommodation Order.
Young people aged 16 or 17 years have the right to discharge themselves from Section 20(5) accommodation and, consequently, from Secure Accommodation. Nevertheless, where the local authority continues to have concerns about the safety of the young person, a decision should be made as to whether to commence care proceedings and seek an Interim Care Order and Secure Accommodation Order.
3. Period of Secure Accommodation
The use of secure accommodation should be for the minimum period necessary, following an assessment of likely risk to the child, others and public safety.
A child must not continue to have their liberty restricted once the criteria cease to apply, even if there is a Secure Accommodation Order still in existence. (See Secure Accommodation (Criteria) Review Procedure).
3.1 Without A Court Order
The Designated Manager (Secure Accommodation) can approve such placements for up to 72 hours in an emergency. Only a Court can grant permission for placements beyond 72 hours.
A Looked After Child who meets the above criteria may be placed in secure accommodation for a maximum period of 72 hours in any 28 days period without a Secure Accommodation Order.
Note: Where a young person is under13 the prior approval of the Secretary of State is required (see Section 6, Placements of Children under the Age of 13 Years).
The provisions are relaxed to cover the situation where the 72 hour period expires late on Saturday, a Sunday or public holiday.
The Regulations provide that, where a child is placed in secure accommodation at any time between 12 midday on the day before and 12 midday on the day after a public holiday or a Sunday, and:
- During that period the maximum period of 72 hours expires; and
- In the 27 days before the day on which s/he was placed in secure accommodation, s/he has been placed and kept in secure accommodation for an aggregate of more than 48 hours,
then, the maximum period (of 72 hours) shall be treated as if it did not expire until 12 midday on the first working day after the public holiday or Sunday.
3.2 With A Court Order
A Court may authorise a child to be kept in Secure Accommodation for a maximum period of:
- 3 months on the first application to the Court;
- 6 months on subsequent applications to the Court.
N.B. Any time spent in Secure Accommodation prior to the Court Order is disregarded in respect of the above time limits.
4. Looked After Children Who May Not be Placed in Secure Accommodation on Welfare Grounds
A Looked After child may not be placed in Secure Accommodation on Welfare Grounds where they:
- Are under the age of 13 years, unless the Secretary of State gives prior specific approval (see Section 6, Placements of Children under the Age of 13 Years);
- Are Accommodated and a parent/carer with Parental Responsibility objects to a secure placement. A secure placement can then only be made via the Court;
- Are detained under any provision of the Mental Health Act 1983;
- Are being kept in Police protection;
- Are subject to a Child Assessment Order or Emergency Protection Order and who is being kept away from home.
5. Decision to Place in Secure Accommodation
At the point that it is determined that a placement in Secure Accommodation may be required, and throughout the subsequent process of identification, planning and placement, the social worker must consult and take account of the views of the following people:
- The child;
- The child's parents and those with Parental Responsibility;
- Anyone who is not a parent but has been caring for the child;
- Other members of the child's family who are significant to the child;
- The child's school and/or the Education Service;
- The Youth Offending Service, if the child is known to them;
- The child's Independent Visitor if appointed;
- The local authority managing the secure accommodation in which the child is placed if this is not the local authority with responsibility for looking after the child.
Where a secure placement is being considered, the social worker must contact Legal Services as a matter of urgency regarding advice in respect of any application to Court for a Secure Accommodation Order.
Any decision to place a child in a secure placement on welfare grounds can only be made with the specific approval of the Director of Children's Services and, if made, must be notified to those consulted and the child's Independent Visitor. Where the child does not have an Independent Visitor, arrangements must be made for such an appointment as soon as practicable.
To seek the approval of the Director, the child's social worker must prepare a written report with the following information:
- The child's name, address, date of birth, ethnicity, school and names of those with Parental Responsibility;
- The grounds/concerns/criteria/aims of the proposed secure placement;
- The evidence that the criteria are met;
- What alternatives have been tried/considered and the outcomes;
- The view of the child and the parents/others who have Parental Responsibility;
- The comments of the Team Manager;
The Director of Children's Services will only approve a request to place a child in secure accommodation where the following have been considered in a Secure Panel:
- The Criteria for Secure Placements as set out in Section 1, Secure Accommodation Criteria are met;
- Secure accommodation is the only appropriate method of dealing with the child;
- Alternatives have been comprehensively considered and rejected;
- There is a clear view of the aims and objectives of such a placement.
In relation to a child under 13 years, the approval of the Secretary of State will also be required and, after the approval of the Director of Children's Services has been obtained, a written request should immediately be sent to the Secretary of State - see Section 6, Placements of Children under the Age of 13 Years.
The social worker should also book a secure escort for the hearing.
Where the placement is required before there is time to obtain a Secure Accommodation Order, the Designated Manager (Secure Accommodation) can authorise the placement for up to a maximum of 72 hours.
6. Placements of Children under the Age of 13 Years
A placement of a child under the age of 13 years in a secure children's home can only be made with the approval of the Secretary of State. Legal advice must be sought immediately. The section below summarises the procedures for obtaining approval, to be carried out by Head of Service and should be read alongside Department for Education Guidance - Secure Children's Homes: How to Place a Child aged under 13.
6.1 Telephone Discussion with the Department for Education Children in Care Team
The following information should be gathered and shared initially with DfE by telephone: - 0208 142 5218 (24 hours a day / 7 days a week):
- The name and date of birth of the child concerned;
- The reasons why a secure placement is required;
- Confirmation of whether an available bed in a SCH has been identified;
- Details of what alternatives to a secure placement have been considered and why it is thought a secure placement is necessary;
- Confirmation of whether the child is with you or whether they are missing from care (having run away);
- Details of when the local authority will go to court to seek a Secure Accommodation Order for the child;
- Confirmation of whether you have approached the Secure Children's Homes to submit your referral.
6.2 E-mail Documentation will then be Requested
During your initial phone call the DfE will provide a contact email address. After the call, you must email the following documents:
- A letter signed at assistant director level or above explaining why you are applying, which should include:
- Confirmation that they have reviewed the application and in their view the section 25 criteria are met;
- Confirmation that they have taken advice from their legal department.
- A full written history/chronology including interactions with Children's Social Care; this should include a record of recent incidents, covering at least the last 3 months, which gives evidence of how the section 25 criteria are met;
- A detailed Care Plan that covers the period the child will be in secure accommodation, which as a minimum should include:
- Confirmation that the section 25 criteria are met;
- The alternatives to a secure placement that have been tried or considered;
- Explanation of why the local authority thinks a secure placement is the best option for the child;
- What the aims of the secure placement are;
- What the young person's needs and challenges are and how these will be addressed during the secure placement, including expectations of the secure provider;
- What the exit strategy is for the young person's return back into the community or another placement;
- Confirmation of the intended initial length of the secure accommodation order or placement;
- A list of assessments, for example psychiatric, psychological or health, that have been or will be carried out during the secure placement;
- Identification of any therapeutic provision that will be required;
- The intended outcomes from the secure placement or preparation for transition.
The DfE will review the documentation provided, assess the application and advise you of their decision as soon as possible. They will provide a certificate via email to confirm that the Secretary of State approves the secure placement.
6.3 Out of Hours
When an application is made outside office hours, the care duty officer may be able to give verbal approval on behalf of the Secretary of State. They will only do this if the placement meets the criteria in section 25 of the Children Act 1989 and is deemed appropriate.
Approval from assistant director level or above will have to be provided and supporting documents sent by email the following working day. After having assessed the documents, the DfE will send the certificate that confirms the Secretary of State's approval.
7. Planned Placements
7.1 Placement Request, Identification and Approval
Where the child's social worker considers that a Looked After Child requires a secure placement, and following agreement with the Agency Decision Maker, the Commissioning Team should contact the Secure Children's Homes (Referrals) in order to identify a suitable placement.
Each secure unit contacted will require basic information, including legal status, reasons why a secure placement is needed and details of any specific behavioural concerns or offences e.g. arson / criminal damage, or violent behaviour, harmful sexual behaviour and criminal exploitation or sexual exploitation.
The terms and conditions of the placement must be approved by the Designated Manager (Secure Accommodation) and included in the contract with the provider in relation to the placement.
If a placement is offered, the home is likely to need written confirmation of an undertaking to pay the stated fee and, where relevant, written confirmation of authorisation for a 72 hours placement, together with copies of the Interim Care or full Care Order and the DfE 'Certificate' for Children under 13 years. A copy of the Secure Order (when such an application has been made) will also be required in all cases.
Section 25 Children Act 1989 applies to all placements in England, Scotland and Wales.
7.2 Placement Planning
Each secure unit will have its own Placement Planning Procedure and therefore, once a placement has been identified, the social worker should liaise directly with the provider to establish this.
Before the child is placed, the child's social worker will liaise with the manager of the home to arrange a Placement Planning Meeting. If this is not possible prior to the placement, it must be held in order that the Placement Plan is completed within 5 working days of the start of the placement.
The child, parents, and any other significant family members and relevant professionals should be invited to attend.
The purpose of the meeting is to share information about the child and the Care Plan, complete/update the necessary documentation about the child, plan the timing of the placement and ensure that a Placement Plan/Placement Information Record is drawn up.
The Placement Plan and associated arrangements should cover the same issues as those listed in Placements in Residential Care Procedure.
Following the meeting, the child's social worker will complete and arrange for the circulation of the Care Plan to the child, parents, IRO and manager of the Unit. The child's social worker and manager of the Unit will arrange for the Placement Plan/Placement Information Record to be drawn up and circulated to the child and parents.
The child's social worker must provide the child and parents with written information about the Looked After Service. The social worker must also ensure that the child is provided with information on using the authority's Complaints Procedure (see Complaints and Representations Procedure).
The social worker should ensure that any Children's Guide or other information about the placement that is available for the child is obtained and given to them.
In all cases, the child should be accompanied to the placement by the social worker and helped to settle in.
7.3 Notification of Placement
The Commissioning Team must ensure that the relevant finance officer of the placement is notified of the placement within 1 working day (so that the appropriate arrangements to pay the provider are in place) and update the child's electronic records.
The social worker must also ensure that notification of the placement is sent to the Independent Reviewing Officer, the health clinical commissioning group (CCG) and education services (including the Virtual Head), the child's GP and Children's Services for the area where the child is placed.
The notifications must advise of the placement decision, the name and address of the new carers, details relating to the child's contact with parents and the arrangements related to the care and welfare of the child.
Notification of the placement must also be sent by the child's social worker to all family members consulted and involved in the decision-making process.
The social worker must also ensure that the child is registered with a GP, Dentist and Optician; the child's home Clinical Commissioning Group (CCG), and the CCG for the area where the child is placed (as this is likely to be different from the child's home CCG) should be informed also. The social worker should also ensure that a Health Assessment takes place as necessary. (Note: where a child moves into another CCG area, any treatment or service should be continued uninterrupted).
The notification should be before the start of the placement or within 5 working days.
The social worker must also confirm the placement within 24 hours by e-mail to the Designated Manager (Secure Accommodation).
The social worker must also notify the child's Independent Reviewing Officer, and make arrangements for a review meeting within 28 days - see Secure Accommodation (Criteria) Reviews Procedure.
Note: The child's Secure Accommodation (Criteria) Review is distinct and separate from the Looked After Review.
8. Applying for a Secure Accommodation Order
Before lodging an application for secure accommodation suitable provision must be identified. The child's social worker must liaise with Legal Services regarding the preparation of evidence to support the application, including a Care Plan with the aims and objectives of the placement set out and details of the intended plan to return the child to open conditions.
The social worker should prepare the child for the Court hearing, by explaining the procedure and the possible outcomes, and by advising him or her of the right to be legally represented at the hearing.
8.1 The Application
- Must be made on Form C1, with supplement C20;
- Served on the appropriate respondents;
- On notice to all respondents and relevant parties, (and their legal representatives if those are known at the time of the Secure Application). These are:
- Every person who is believed to have Parental Responsibility for the child;
- Where the child is subject to a Care Order, every person whom it is believed had Parental Responsibility immediately prior to the making of a Care Order;
- Any person with whom the child is living at the time the proceedings commenced;
- The child;
- Any person providing refuge, e.g. Voluntary Home or Children's Home certified under Section 51(1) and Section 52(2) Children Act 1989;
- The local authority providing accommodation for the child, (if this is not the responsible authority).
Once made, an application can only be withdrawn with the permission of the court.
7 days before the date of the hearing (unless the court has directed a shorter period), respondents should be served with:
- A copy of the application with the hearing date endorsed;
- A notice of the proceedings with the date and place of the hearing;
- The evidence which is relied upon in support of the application for a secure order; via:
- The written statement relied on in support of the application;
- Other relevant reports from specialists or experts or other documents;
- A detailed copy of the Care Plan.
The Care Plan should detail, as far as possible, the care arrangements for the child, education provision and any other professional support, both within the Secure Accommodation and after the placement ends.
8.2 Interim Orders
An adjournment may be justified either for reasons of procedural fairness or in order to obtain further information. Otherwise, the court should proceed to consider the substantive application.
Where a court adjourns an application for a secure accommodation order, it may make an interim order permitting the child to be kept in secure accommodation during the period of adjournment.
The child/local authority may appeal to the High Court against the making, or refusal to make, an order.
9. Support, Monitoring and Ending of Placements
9.1 Support and Monitoring of Placements
The child's social worker must visit the child in the placement within 1 week of the placement and then every 6 weeks; see procedures in Social Worker Visits to Children in Care Procedure.
Once the Secure Accommodation Criteria Review establishes that the child no longer meets the criteria for Section 25 Secure Accommodation, it will be important that the exit plan/Care Plan is expedited, (see Section 3, Period of Secure Accommodation).
It is therefore important that the placement is carefully monitored with regard to the child's progress, both in terms of any additional specialist assessments that may be required and commissioned, and also in respect of the 'exit plan' that will have been established at the point of admission and subsequent Looked After Reviews.
Where children are Section 20 Accommodated, then it will be particularly important to maintain visits and communication with the parents and others who have Parental Responsibility.
If the parent does not agree with the nature of the exit placement required which is being, or has been, assessed and considered as meeting the child's needs, then urgent consideration must be made as to whether Care Proceedings are required (see Care and Supervision Proceedings and the Public Law Outline Procedure).
Many children's placements in Secure Accommodation go well in the light of the clear structure and regime that such Units offer and feedback from staff / specialist reports should seek to focus on: the child's insight into their behaviour; development of confidence and self esteem; relationships with other residents, staff and family; progress in areas such as education and health/emotional health, (which may well have been of concern previously) etc.
A sign of progress will be when the child achieves 'mobility' and is allowed out of the Unit albeit on an escorted basis and in a planned way.
The Secure Accommodation Unit will seek permission from the social worker for mobility and this should be responded to promptly. The Unit should provide details of the activity to be undertaken, together with the support and management of that to ensure the young person continues to be safeguarded and does not abscond.
Written agreement for mobility should be provided by Team Manager, who should have all the necessary information, including a report on the child's progress, to make the decision.
9.2 Ending of Placements
'Timing' for the next, exit placement is often not easy but is clearly important. Planning for the exit placement should not be left until before the next Secure Accommodation Order Hearing, or when the Order lapses, given that the criteria for Secure Accommodation may no longer be met before either of these events. Progressing the exit placement should begin significantly before it is thought the child will be ready and will start by researching possible options and exchanging some information etc.
Identifying a specific placement should therefore be made in a timely way so as to ensure the proposed placement has all the relevant and most up to date information, as well as positively being able to reflect on the progress the child may have made.
Irrespective of the child's legal status, the parents/those with Parental Responsibility, should be involved and consulted about the exit placement.
Clearly, if the child is Section 20 Accommodated, then agreement with the parent is required.
Transferring to the Exit placement should be undertaken as for any Looked After Child. The Placement Plan and associated arrangements should cover the same issues as those identified in Placements in Residential Care Procedure or Placements in Foster Care Procedure.
When leaving the secure accommodation begins to emerge as a possibility, a discussion with the child about transition from the secure accommodation should be undertaken and the future carers or staff should visit the child in the secure accommodation placement to ensure a full exchange of information as well as an introduction.
A visit by the child to the next placement should be undertaken where possible.
When the child has transferred from the Secure Accommodation Unit, the Commissioning Team should notify the relevant finance officer within 1 working day of the placement ending (so that the arrangements to pay the provider will be terminated) and update the child's electronic record.
The social worker should also inform all those notified of the placement (including the IRO) that the placement has ended.
10. Use of Inherent Jurisdiction to Authorise a Placement Involving a Deprivation of Liberty
The Supreme Court has held that the inherent jurisdiction of the High Court can be used to authorise the placement of a child where the prescribed statutory requirements cannot be met and there is no practical alternative but to place the child in other accommodation.
In this situation, legal advice must be sought as a matter of urgency.
Where a local authority cannot apply for a Secure Accommodation Order under section 25 Children Act 1989 because one or more of the relevant criteria are not satisfied, it may be able to apply for leave to apply for an order depriving the child of liberty under the inherent jurisdiction of the High Court if there is reasonable cause to believe that the child is likely to suffer significant harm if the order is not granted (s.100 (4)) Children Act 1989).
It may be that section 25 does not apply because the criteria set out in section 25(1)(a) and (b) are not met. For example, a child who has no history, so far, of absconding, and who is not likely actually to injure themselves or anyone else, so does not satisfy section 25(1)(a) or (b), but who, for other good reasons to do with their own welfare, needs to be kept in confined circumstances.
Section 25 may not apply where the application is to place a child into accommodation which is not classed as 'secure accommodation' for the purposes of section 25, not being registered as such.
When considering an application under its inherent jurisdiction, the High Court must have the child's welfare as the paramount consideration and undertake a welfare evaluation to determine whether the deprivation of liberty proposed by the local authority is in the child's best interests, always having firmly in mind that the intervention must be both a necessary and proportionate response to the need to protect the child from the harm to which they would be exposed were the declaration not made.
Additional information to be taken into account by a court asked to authorise the confinement of a child in an unregulated placement, when the circumstances would meet the terms of section 25 Children Act 1989 were it not for the absence of an authorised registered placement, is set out in Practice Guidance: Placements in Unregistered Children's Homes in England or Unregistered Care Home Services in Wales.
This guidance sets out 'best practice' to be followed:
- When making an application to the court for an order under its inherent jurisdiction to authorise the deprivation of the liberty of a child, the applicant should make the court explicitly aware of the registration status of those providing or seeking to provide, the care and accommodation for the child.
- If not registered, the Court should be made aware of the reasons why registration is not required or the reasons for the delay in seeking registration.
- If registration is not required, the applicant must make the court aware of the steps it is taking to ensure that the premises and support being provided are safe and suitable for the child accommodated. If care rather than support is being provided, then the provision is likely to require registration as a children's home.
- If registration is required but has not yet been obtained, the court will need to be satisfied that steps are being taken to apply for the necessary registration. The court will wish to assure itself that the provider of the service has confirmed that they can meet the needs of the child. In addition, the court will need to be informed by the local authority of the steps the local authority is taking in the meantime to assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child. Where an application for registration has been submitted to Ofsted (CIW in Wales), the court should be made aware of the exact status of that application.
The High Court held in MBC v AM & Ors (DOL Orders for Children Under 16)  EWHC 2472 (Fam) that it remained open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 in ‘other arrangements’ such as unregulated accommodation notwithstanding the ban on placement of children under the age of 16 in such accommodation under the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021. The Court stressed the requirement for rigorous application of the President’s Guidance.
The High Court subsequently held (Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1)  EWHC 2931 (Fam)) that the court should not ordinarily countenance the exercise of its inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law.
The High Court stated in the case of In the Matter of Child J  EWHC 2395 (Fam).
'The secure accommodation procedures provide important protections for children confined in such institutions. In my judgment, a placement that does not provide those same protections should only be authorised when absolutely necessary. Sadly, at the current time when there is a significant gap between registered secure accommodation provision and registered secure accommodation need, unregistered placements are often absolutely necessary'.
In that case, the local authority applied under the inherent jurisdiction for leave to apply for an order depriving a 16 year old boy of his liberty because it was not able to apply under s 25 of the Children Act 1989 – the relevant criteria not being satisfied because the placement identified and proposed was an unregistered children's home. The boy was beyond parental control and due to his involvement with criminal activity and gang violence was at high risk of significant harm or even death. The order was granted, with the following restrictions being imposed:
- Restrictions on the child's use of phone, internet and correspondence;
- Restrictions on his use of windows and doors;
- Not to be allowed to go out without permission and being accompanied by staff members from his placement and/or other professionals;
- Two to one supervision;
- Restraint to be used if required;
- Not to be permitted to access social media without supervision;
- Permission given for the doors of the property to be secured if deemed necessary for security reasons and to prevent him from leaving;
- To have restricted access to personal allowance;
- His possessions are to be searched and permission is granted to remove belongings, knives or makeshift weapons.