B e f o r e :
THE HONOURABLE MR JUSTICE MACDONALD ____________________
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Mr Peter Rothery and Mr Liam Kelly (instructed by the Local Authority) for the Applicant Ms Samantha Bowcock QC and Mr Christopher Blackburn (instructed by John Whittle Robinson) for the First Respondent Mr Michael Jones (instructed by Woodcocks Haworth and Nuttall) for the Second Respondent Mr Bansa Singh-Hayer (instructed by Watson Ramsbotton) for the Third Respondent Hearing dates: 7 October 2021 ____________________
HTML VERSION OF APPROVED JUDGMENT ____________________
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Mr Justice MacDonald:
INTRODUCTION
I am again concerned with the welfare of E, born in 2005 and now aged 16. E is represented by Ms Samantha Bowcock QC and Mr Christopher Blackburn on the instruction of her Children's Guardian. E's mother is B, represented by Mr Michael Jones of counsel. E's father is N, represented by Mr Bansa Singh-Hayer of counsel. The applications before the court are for a care order, an order under the inherent jurisdiction of the High Court authorising the deprivation of liberty and a secure accommodation order. The applications are brought by [a Borough Council], represented by Mr Peter Rothery of counsel and Mr Liam Kelly of counsel.
On 1 February 2021 I gave judgment authorising the deprivation of E's liberty in an unregulated placement. That judgment was published with the neutral citation [2021] EWHC 183 (Fam) . On 12 March 2021 the court made a secure accommodation order in respect of E pursuant to s.25 of the Children Act 1989 by consent. E has now been accommodated in a secure accommodation unit called X for a period of some seven months.
At this hearing the local authority submits that the criteria for an order pursuant to s.25 of the Children Act 1989 remain satisfied and that, accordingly, E should remain the subject of a secure accommodation order whilst work is completed to provide a bespoke therapeutic placement for her. The timetable for the completion of that work is, at best, unclear. All of the other parties before the court, including the Children's Guardian on behalf of E, submit that in line with the conclusion of the local authority's Secure Accommodation Review Panel following meetings on 22 September 2021 and 4 October 2021, the criteria under s.25 are no longer met and that, accordingly, E should be discharged from secure accommodation.
In determining the issue before the court I have had the benefit of reading the court bundle and the Position Statements prepared on behalf of each of the parties. I have also heard helpful and concise oral submissions from Mr Rothery, Mr Jones, Mr Singh-Hayer and Ms Bowcock QC. I also heard directly from E, who attended the hearing by video-link. E made clear that she strongly objects to remaining in secure accommodation in circumstances where she contends to the court that she has done everything that has been asked of her over the course of the past seven months in her secure placement.
BACKGROUND
The initial background to this difficult matter is set out in my previous judgment and I do not repeat it here. This judgment should be read with my previous judgment, which dealt with the history of this case from March 2020 to 25 January 2021. As I have noted, on 1 February 2021 I gave judgment authorising the deprivation of E's liberty in an unregulated placement.
With the endorsement of the court, E was discharged from hospital on 4 February 2021 to the unregistered placement identified. The local authority had agreed to fund the fees for the placement to be registered by Ofsted. The placement was a four-bedroomed house, where E was the only child in placement. During this time E initially settled well and felt that the new start would be good for her and liked the placement as she described this as being more homely. E returned to education on a part time basis.
Thereafter however, and sadly, E's behaviour again deteriorated. In particular, the following matters are highlighted in the statement of the social worker that was before the court in support of the local authority's application for a secure accommodation order in March 2021.
i) On the 10 February 2021, E became challenging within the placement and refused to turn off her TV and broke dishes in the kitchen;
ii) On 16 February 2021 E started to target a specific member of staff and called her names, E tried to take the lightbulbs out of the lights and couldn't reach, she also tried to flood the kitchen by blocking the drains and running water, E also broke a glass plant pot and ran upstairs with broken glass. E put the glass to her arm and checked for a reaction from staff, she also raised the glass towards the staff member who she had targeted, which resulted in restraint being used. E tried to pull staff member's hair and then punched and kicked the staff member whilst still in hold.
iii) On the 26 February 2021, Police were called to the placement because E was being violent towards staff and damaging property. The Police arrested E initially but then returned her as she was calm. When the Police left, E continued to be violent towards staff and assaulted two members of staff. E tried to choke a member of staff by pulling his hood/collar from behind.
iv) A further incident occurred on 28 February during which a member of staff was cut after E had swung a smashed jar. E attempted to run from the police whilst being escorted to the police van.
v) On 2 March 2021 E threw an object at the psychologist, prevented her leaving and threatened that "you'll be traumatised by the time you leave this house".
vi) On 3 March 2021 E bit a staff member on his arm and neck and pulled his hair.
vii) On 5 March 2021 there was an incident at St Thomas's PRU whereby E did not enter school but attempted to abscond from carers. E refused to sit in the car with carers, she threatened to harm the care staff and refused to put her seatbelt on
Within this context, the placement gave notice on 4 March 2021. On 8 March 2021 a referral for secure accommodation was made and at 3.30pm on the same day E was offered a placement at X. She arrived at X at 5pm on 9 March 2021, having been resistant to getting on the transport and having tried to kick the gear stick in the car in which she was being transported whilst on the motorway.
It is important to make clear that the behaviours I have detailed above were a function of E's inability to contain her emotional responses in light of her psychological needs, including Post Traumatic Stress Disorder. The strength of the emotional forces acting on E were perhaps best illustrated by fact that E was, as I have noted, initially enthusiastic about the unregulated placement. With respect to her own views, in a virtual meeting with Mr Blackburn E had expressed excitement about moving to the placement and was "proper happy", "well excited" and "can't wait". In a letter to me, E stated that "I'm really excited for [the placement] I've met most of the staff. I want to go to [the placement] until I can go home to my family. I love my family." Notwithstanding this, E was unable to prevent herself from behaving in the manner described.
Within the context of the recent history set out above and the history set out in my previous judgment, the social worker concluded as follows in March 2021:
In his helpful Position Statement on behalf of E at the hearing in March 2021, Mr Blackburn concluded as follows with respect to the application by the local authority for a secure accommodation order pursuant to s.25 of the Children Act 1989:
Within this context, in March 2021 the mother did not oppose the making of a secure accommodation order and, indeed, was supportive of the making of such an order as the only measure that could keep E safe. The position of the Father was not clear. Within this context, on 12 March 2021 I made a secure accommodation order until 23 April 2021. On 23 April 2021 I extended the secure accommodation order until 17 August 2021.
It is common ground between the parties that, until the incidents that occurred recently and to which I will come in more detail below, E has made significant progress with respect to her behaviour whilst accommodated at X, in line with her stated aim of putting things right. This progress by E was made notwithstanding the following description of life in secure accommodation provided by E on 26 July 2021, entitled "Life in Secure":
On 3 August 2021, just prior to a hearing before Cohen J, X emailed the local authority to inform it that X did not believe that the criteria under s.25 of the Children Act 1989 were any longer met in respect of E. On 13 August 2021, a Secure Accommodation Review Meeting concluded the criteria for maintaining E in s.25 accommodation remained satisfied and therefore the placement for E at X remained necessary. Within this context, the local authority made a fresh application for a secure accommodation order on 16 August 2021 and invited the Court to make an interim order until 5 October 2021, which was granted. At this time, the exit plan for E was for her to transition to a therapeutic placement. E wished to leave the placement. Whilst the Children's Guardian considered that the s.25 criteria were no longer met, she conceded that an interim order should be made until the matter could be listed for a contested hearing.
On 22 September 2021 a Secure Accommodation Review took place and determined that the s.25 criteria were no longer met and E should transition from secure accommodation to a further placement. At this time the local authority had identified an unregistered placement with Y and it was intended that E should begin transitioning to that placement. The local authority considered that notwithstanding the decision of its Secure Accommodation Review Panel and until such time a successful transition had taken place, the criteria for a secure accommodation order remained engaged.
Mr Rothery, on behalf of the local authority, now levels some criticism at the approach adopted by the local authority's Secure Accommodation Review Panel on 22 September 2021. In particular, Mr Rothery asserts that the reasons for the Panel's conclusion are not set out clearly, Mr Rothery submitting that it is accordingly hard to discern the rationale for their conclusion that the s.25 criteria are not met, and that the focus on the Panel was less on the criteria than on E's general welfare and needs, Mr Rothery submits to the exclusion of a rigorous analysis of the evidence about whether the s.25 criteria were met. In the circumstances, it is necessary to consider that meeting in a little more detail. In particular, it is important to note that the position of the local authority was recorded as follows:
And within this context, to note X's assessment of E's behaviour:
Notwithstanding the concerns summarised in the foregoing extracts, it is clear from the minutes of the Secure Accommodation Review Panel held on 22 September 2021 that the transition plan remained the subject of some confusion:
As I have noted, at the Secure Accommodation Review Panel on 22 September 2021 it was concluded that the s.25 criteria were no longer met and E should transition from secure accommodation to a further placement. The Panel expressed its conclusion as follows:
As part of the transition arrangements for the move to Y in [named city] E visited Y on 29 September 2021. During the return journey, E became heightened and became violent in the car resulting in the police being called to assist. E was transferred to a secure accommodation unit in [named city] whilst secure transport was arranged to return her to X. The incident is described in the statement of the allocated social worker dated 4 October 2021 as follows:
Within the context of this incident, it is clear that X initially took the view that a further secure accommodation order should be sought in respect of E. However, this position was subsequently reconsidered. Following her return to X on 29 September 2021, E authored a letter in which she reflected on her behaviour. The local authority made clear that it considered Y may remain a suitable placement and that E's behaviour may have been caused by her fear of rejection and the uncertainty around a change of placement. This reflected E's own understanding of her behaviour. In the circumstances, X decided it would be in E's best interested to move on to the placement in [named city] as originally planned.
In her letter written on 29 September 2021, E sought to explain in her own words why she behaved the way she did on that date when returning from the proposed placement:
Further, and in this context, I note that in her letter to the court on 5 October 2021 E expresses clearly her own view of why she behaved as she did on 29 September 2021. In that letter, E stated as follows:
On 30 September 2021 X notified the local authority of a conversation during which E made threats to abscond and to harm herself or others. The relevant recording notes as follows:
At this point, the local authority decided that the severity of the threats and E's recent behaviour meant that a transition to Y would no longer be suitable and a further secure accommodation order would be required to keep E safe until such time a therapeutic placement could be identified, which therapeutic placement would likely require an order authorising the deprivation of E's liberty order to keep her safe.
On 1 October X notified the local authority of further incidences of E threatening to injure staff and being verbally abusive toward them. Again, the relevant recording from X indicates as follows:
Within the foregoing context, on 4 October 2021 the local authority convened a further and urgent Secure Accommodation Review Panel to review whether, considering recent events, the s.25 criteria were now again met. The Panel, however, concluded that the criteria continued not to be met on the basis that E's troubling recent behaviour was likely a manifestation of her anxiety about moving on from secure accommodation.
Mr Rothery on behalf of the local authority also criticises the conduct of the local authority Secure Accommodation Review Panel on 4 October 2021. In addition to the criticisms levelled at the approach of the Panel on 22 September 2021, Mr Rothery submits that the Panel on 4 October 2021 did not place sufficient weight on what E said she would do by way of threats of harm and what she had done recently, and that the presence of E throughout the Panel meeting may have affected the professionals' approach during the meeting and the ability to freely discuss the behaviours and risks. Once again, in these circumstances it is necessary to consider that meeting in a little more detail.
At the meeting on 4 October 2021, E's allocated social worker expressed the reservations that are set out to her statement to this court, as detailed below. Against this, X informed the Secure Accommodation Review Panel that it considered that E's behaviour since 30 September 2021 was not uncommon for young people and would evidence the level of worry and anxiety E was feeling. X further highlighted that E had had her mobility time and it was positive that she had continued with this without any absconding or escalated behaviours. Within this context, the panel reached the following conclusion:
Notwithstanding the conclusions drawn by the Secure Accommodation Review Panel on 22 September 2021 and on 4 October 2021, E's allocated social worker is of the view that the criteria under s.25 of the Children Act 1989 remain satisfied. In a statement dated 4 October 2021, Miss T relies on the following matters in support of that conclusion:
i) The incident on 29 September 2021 demonstrates that E's ability to hurt others poses a risk to others and to herself. E caused a significant incident on a dual carriageway, whereby the police had to be called. E, staff members and members of the public could have been at risk during this incident, demonstrating that E risks are high at this time.
ii) The statements made by E at her placement on 30 September 2021 demonstrates a clear risk to both E, given her threats about a knife, but also to others. E clearly stated that she will burn her family home down, and that she will kidnap her siblings. There is also a risk to staff in any placement, of E holding them hostage with a knife.
iii) The statements made by E at her placement on 1 October 2021 and her conduct on that day likewise demonstrate the risks to E and others.
iv) Within this context, E's behaviour continues to escalate and she poses a risk to herself and others, E has made very clear threats to set her family home on fire and kidnap her siblings, posing a clear risk to her family members. E is an impulsive young person, who could carry out these acts, if in the frame of mind to do so.
v) Within this context, E being supported in any other provision at this time is not safe or suitable. E's behaviour has demonstrated that she is not ready to be discharged from X.
Within this context, the local authority propose the Court to make a further secure accommodation order until the 8 December 2021 to allow a plan for the provision of a bespoke placement to be advanced. However, at best, those plans remain vague. As at 4 October 2021 the social worker was only able to say in her statement that:
Even today the best that can be said by way of an updating statement from the allocated social worker is that there might be a transition plan in place (as distinct from implemented) in six weeks' time. Within this context, the furthest Mr Rothery was able to go with respect to an adjourned hearing on 8 December 2021 is that that hearing might function as a "review" of E's position. Mr Rothery properly conceded there remains scope for further delay. Within this context, it is important to note that during his oral submissions Mr Rothery further conceded, as the evidence before the court compelled him to, that X can no longer be said to be the right placement for E in terms of meeting effectively her needs.
Within the context of the foregoing matters, and as I have noted, notwithstanding the decisions of its Secure Accommodation Review Panel on 22 September 2021 and 4 October 2021, the local authority contends before the court that the s.25 criteria continue to be made out in respect of E. During his oral submissions, Mr Rothery made clear that, in support of this submission, the local authority relies primarily on the conduct it says has been exhibited by E between 29 September 2021 and the date of today's hearing. Mr Rothery submits that whilst the behaviours exhibited by E during this period have arisen in the difficult environment of uncertainty described above, in light of the history of this matter the court cannot be confident that this is the only context in which the behaviours will arise. As I have noted, were the court to grant a further secure accommodation order, the local authority intends that E remain at X whilst a bespoke placement that is able to meet her emotional and psychological needs is assembled.
Each of the other parties before the court, including the Children's Guardian on behalf of E, submit that her behaviour over recent days is simply a product of the anxiety that has been generated by being told that she is moving on, only to be told that she is not. Within this context, all parties save for the local authority submit that the incidents that have occurred since 29 September 2021 are not sufficient, whether by themselves or within the context of the history of this matter, to satisfy the s.25 criteria. In her letter of 5 October 2021, E stated to the court as follows:
In the Position Statement prepared on behalf of the Children's Guardian the position of the Guardian within the context of the matters set out above is set out as follows:
THE LAW
Parliament has enacted a statutory regime to regulate the use of secure accommodation in respect of children. That statutory regime provides, inter alia , as follows:
With respect to the first limb concerning a history of absconding and a likelihood of future absconding, in Re W (A Child) [2016] EWCA Civ 804 the Court of Appeal held that 'absconding' equates to an intention to permanently leave/escape indefinitely and not to return, with the Court of Appeal making the following observation in this regard:
Section 25(3) of the 1989 Act imposes a duty on the Court to determine whether the criteria for secure accommodation are met. The questions that the court must consider when determining whether to grant an application for a secure accommodation order under s.25 of the Children Act 1989 were set out by Baker LJ in Re B (Secure Accommodation) [2019] EWCA Civ 2025 at [98] as follows:
i) Is the subject child being "looked after" by a local authority, or, alternatively, does he or she fall within one of the other categories specified in regulation 7 of the Children (Secure Accommodation) Regulations 1991?
ii) Is the accommodation where the local authority proposes to place the child "secure accommodation", i.e. is it designed for or have as its primary purpose the restriction of liberty?
iii) Is the court satisfied (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons?
iv) If the local authority is proposing to place the child in a secure children's home in England, has the accommodation been approved by the Secretary of State for use as secure accommodation? If the local authority is proposing to place the child in a children's home in Scotland, is the accommodation provided by a service which has been approved by the Scottish Ministers?
v) Does the proposed order safeguard and promote the child's welfare?
vi) Is the order proportionate, i.e. do the benefits of the proposed placement outweigh the infringement of rights?
As Mr Jones points out on behalf of the mother, in Re B the Court of Appeal made clear that the child's welfare, although not paramount, is an important element in the Court's own independent analysis and that the Court must undertake a proportionality evaluation before granting an order under s.25 of the 1989 Act.
On behalf of E, Ms Bowcock submits that it is an unprecedented step for a local authority to ignore the outcome of its own Secure Accommodation Review Panel. The Secure Accommodation Review Panel is established under regulation 15 and 16 of the Secure Accommodation (Children) Regulations 1991:
The local authority submits that, whilst the court must take into account the views expressed by the Secure Accommodation Review Panel when determining whether to grant an order under s.25 of the 1989 Act, those views are advisory only, the local authority having the final say as to whether the criteria remain met or not. Mr Rothery submits that the decisions of the Panel must be treated accordingly in terms of their evidential weight.
In LM v Essex County Council [1999] 1 FLR 988. Holman J concluded as follows at 998 regarding the relationship between the local authority and the panel:
In the case of R (on the application of FD) v X MBC [2019] EWHC 3481 (Admin) at [19] Lieven J held as follows regarding the respective roles of the Secure Accommodation Review Panel and the local authority:
Within the foregoing context, statutory guidance to the Children Act 1989 at Chapter 4, para 50 makes clear that where the Secure Accommodation Review Panel concludes that the criteria under s.25 are no longer met:
As to the effect of the s.25 criteria no longer being met, the decision of Holman J in LM v Essex County Council is once more of importance. In that case, following the local authority Secure Accommodation Review Panel determining that the s.25 criteria were not longer made out, a local authority informed the child's solicitor that, as it was not possible to make alternative arrangements immediately following the expiry of the s.25 criteria, the local authority proposed to keep the subject child in secure accommodation. Holman J held that on a proper construction of s 25(1) of the 1989 Act, a local authority could only lawfully keep a child in secure accommodation for so long as it was within the maximum period permitted without the authority of the court, or the maximum period specified in an order under s 25(4) and it continued to appear to the local authority themselves that the criteria in s 25(1) were satisfied. Within this context, Holman J was satisfied that if it appeared to the local authority that the criteria were no longer satisfied, the local authority had to cease to keep the child in secure accommodation.
DISCUSSION
In this matter, I am satisfied on balance that the criteria for a secure accommodation order pursuant to s.25 of the Children Act 1989 are no longer met with respect to E. My reasons for so deciding are as follows.
As made clear by the Court of Appeal in Re B , the court must consider whether (a) that (i) the child has a history of absconding and is likely to abscond from any other description of accommodation, and (ii) if he/she absconds, he/she is likely to suffer significant harm, or (b) that if kept in any other description of accommodation, he/she is likely to injure himself or other persons.
Within this context, I bear in mind that the local authority's Secure Accommodation Review Panel has twice answered these questions in the negative. The panel members were aware on 4 October 2021 of the incidents between 29 September 2021 and 1 October 2021 in which E behaved, it is accepted on her behalf, in a dangerous way to herself and others and made threats in relation to her family. However, whilst mindful of the outcome of the Panel meetings on 22 September 2021 and 4 October 2021, I am satisfied that it falls to the court to undertake its own independent assessment of whether the s.25 criteria are met in respect of E, not least because the court is seised of that question at a date subsequent to the last decision of the Panel on 4 October 2021. In carrying out that exercise, the views of the panel will be a factor to be taken into account by the court but will not be determinative.
With respect to the first limb of the s.25 criteria, whilst I accept that it remains possible in this case to identify a history of absconding when the court surveys the totality of the background to this matter, I am not satisfied that it can any longer be said that E is likely to abscond from any other description of accommodation. As E herself points out, over the course of the seven months she has been in secure accommodation, which period has included periods of "mobility" once per week, E has not attempted to abscond. Further, she is correct in pointing out that whilst the incident on 29 September 2021 was difficult, it did not involve an attempt by her to abscond from the car. Further, and for reasons I expand on below, her stated threat to abscond from Y must be viewed in the context of the stress and anxiety caused to E by the uncertainty of her current situation. Within this context, and bearing in mind that the concept of absconding for the purposes of s.25 involves escaping indefinitely from an imposed regime as opposed to deliberately absenting herself for a limited period, I am not satisfied that it can be said on the evidence currently before the court that E is likely to abscond from any other description of accommodation.
With respect to whether the second limb of the s.25 criteria remains satisfied, this is a more finely balanced question.
I am satisfied that the question of whether the second limb of the criteria remains satisfied falls to be considered by reference to the incidents that have occurred between 29 September 2021 and the date of this hearing. Prior to that date, it is plain on the evidence that the local authority, in line with the decision of its Secure Accommodation Review Panel, considered that the criteria were no longer met and that it was appropriate for E to 'step down' to semi-independent accommodation at Y. On the evidence then available, that was plainly the correct analysis, E having done extremely well in secure accommodation over the course of the previous seven months. Within this context, the evidence that must be considered when asking whether, if kept in any other description of accommodation, E is likely to injure herself or other persons, is that of the incident of 29 September 2021, and E's subsequent statements and conduct at X prior to this hearing.
It is important to start by acknowledging the context in which the incident on 29 September 2021 occurred and in which E made the statements she did, and conducted herself in the way that she did thereafter. It is plain on the evidence before the court that E had been given an expectation that she would be moving on from X, an expectation that had been confirmed, at least in her mind, by the decision of the Secure Accommodation Review Panel on 22 September 2021. It is equally clear from the evidence before the court that a degree of confusion and potential contradiction existed amongst the positions of the various professionals as to the plan for stepping E down to semi-independent accommodation. For E herself, it is clear from her writing at this time that the foregoing circumstances generated considerable anxiety in E as she faced the reality of far reaching change in where she would live and who would care for her, in the context of her already considerable emotional and psychological needs. Within this context, I accept the analysis of the Children's Guardian that:
Given the history of this matter, the concerns of the allocated social worker regarding E's behaviour and what it may signal in terms of likely future conduct are understandable. It is however, always important to ask why a child or young person behaves in the way that they do in a given situation. To do otherwise risks the long litany of difficult behaviour that is often seen in the cases of this nature becoming too blunt an instrument for determining whether the s.25 criteria are met. Within this context, I am satisfied that there is force in the argument of the Children's Guardian, and the view taken by the Secure Accommodation Review Panel, that the recent behavioural difficulties exhibited by E are explained by the anxiety and uncertainty that E is faced with in relation to her transition from secure accommodation to a less restrictive environment. E has herself repeatedly made this clear in her writing. In the experience of the court, whilst alarming on their face, the conduct of, and statements made by E since 29 September 2021 are not unusual in the context of significant change and transition.
In the foregoing circumstances, I am satisfied that the weight to be attached to E's recent conduct when considering whether if kept in any other description of accommodation E is likely to injure herself or other persons is not as great as the local authority contend. Placed in the wider context of the progress E has made in placement over the course of the past seven months, and in the context of the uncertainty and anxiety generated in E during a period of change, I am not satisfied that a straight line can be drawn between the incident on 29 September 2021, and E's subsequent statements and conduct, and the second limb of the s.25 criteria.
In deciding whether to accede to the application of the local authority, I am further required to consider whether the order sought by the local authority will safeguard and promote E's welfare. I am not satisfied that it would. The secure unit is clear that E is no longer benefiting from that provision and that the unit is not able to meet the needs E now has. In particular, the urgent requirement for E to undergo an assessment with respect to autism cannot be achieved whilst she remains in X. In attaching weight to this evidence, I bear in mind that the professionals from X not only care for E on a daily basis but are also highly experienced in meeting the needs of children in a secure setting. Further, in circumstances where E is aware that the Secure Accommodation Review Panel and the Children's Guardian consider that the criteria are no longer met, and that E's welfare requires an alternative placement, there is a real risk that E will become trapped in a cycle of behaviour generated by anxiety, frustration and uncertainty, which behaviour will then be argued to justify the continuation of the restrictions that are placed upon by a secure accommodation order.
I am of course mindful that there remains a question as to whether Y remains the correct placement for E following her discharge from X or whether a bespoke placement supplemented by an order authorising the deprivation of her liberty is the proper course. However, the authorities are clear that it is not lawful to keep a child in secure accommodation once the criteria for the same are no longer met. Within this context, and as made clear in LM v Essex County Council , it is not open for the local authority (or indeed the court) to keep a child in secure accommodation simply because there is a delay in procuring or implementing an alternative placement. That this is the position also emphasises the importance of exit planning for children in secure accommodation to begin from the moment it is determined that secure accommodation is the appropriate course to take in respect of the child.
Finally, within the foregoing context, I am further unable to conclude that the benefits of the placement at X continue to outweigh the infringement of E's rights constituted by the secure accommodation regime that applies in that placement. Once again, X has made clear that that E is no longer benefiting from that provision and that the unit is not able to meet the needs E now has. Within this context, I am satisfied that it can no longer be said that secure accommodation is proportionate in E's case.
CONCLUSION
In the circumstances, I am on balance not satisfied that the criteria for a secure accommodation order pursuant to s.25 of the Children Act 1989 are met in respect of E.
I accept that the concerns articulated by the social worker with respect to E's recent behaviour are not without foundation. Within this context, I recognise that there is a risk that the trust that will be reposed in E by stepping her down from secure accommodation will not be repaid by her. In those circumstances, E will not be able to complain if she finds herself once again the subject of a more restrictive regime, the burdens of which she so eloquently described in her letter of July 2021, should she fail to live up to the promises she has made in the context of her wish to make a new start outside the confines of a secure unit.
However, for the reasons I have given, I am not satisfied that the recent difficulties related in this judgment are capable of continuing to meet criteria for making an order under s.25. In the circumstances, I refuse the application of the local authority for a further secure accommodation order.
That is my judgment.