ANNEX B: Additional Information for Secure Children's Homes

Secure children's homes, like other children's homes, must comply with:

• The Children's Homes Regulations 2015; and
• Children (Secure Accommodation) Regulations 1991 ("the 1991 Regulations").

Children may be placed in secure children's homes if they:

• Receive a custodial sentence and the Youth Justice Board makes a decision to place them there;
• Are remanded [15] to youth detention accommodation; or
• Are subject to a welfare placement under Section 25 (Children Act 1989)

This annex is primarily concerned with 'welfare placements' made under section 25 of the 1989 Act. [16]

A children's home can provide secure accommodation only if it has been approved by the Secretary of State. In granting approval, the Secretary of State may impose any terms and conditions that are considered appropriate. [17]

_{[15] As a result of the coming into effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA), children in criminal proceedings who are refused bail by the court and are remanded, either to local authority accommodation or to youth detention accommodation, which could be a secure children’s homes, will become looked after.
[16] For further information on looked after children and youth justice, see Guidance on looked after children and youth justice (April 2014)
[17] Regulation 3 of the 1991 Regulations.}

The role of secure children's homes

Local authorities have a duty under the 1989 Act to take reasonable steps to avoid the need for their children to be placed in secure accommodation and consideration should be given to the range of alternative facilities and services available locally, identifying any gaps in such provision and how these might best be met. Decisions to place a child in a secure accommodation should be authorised by a nominated senior manager of the local authority's children's services department.

Restricting the liberty of a child is a serious step which should only be taken where it is necessary and where other alternatives have been considered. This does not mean that all other alternatives must have been tried. But in order to apply to the Court for an order to restrict a child’s liberty under section 25 of the 1989 Act, it is vital that the local authority has made a careful assessment that this is the most appropriate option to meet their particular needs. The placement of a child in a secure children’s home should, wherever practicable, arise as part of the local authority’s overall plan for the child’s welfare.

Secure placements should only continue for as long as they remain appropriate to meet the needs of the child. The plan for the child should be kept under careful monitoring and review from the outset of the secure placement to ensure that there will be continuity of care and education and where necessary, any specialist intervention or support once the child is no longer detained.

Criteria on welfare grounds: section 25 of the Children Act 1989

Section 25(1) of the 1989 Act provides that a child may not be placed in secure accommodation unless:

• He has a history of absconding and is likely to abscond from any other description of accommodation; and
• If he absconds he is likely to suffer significant harm; or
• That if he is kept in any other description of accommodation he is likely to injure himself or other persons.

In this context "harm" has the same meaning as in section 31(9) of the 1989 Act and the question of whether harm is significant shall be determined in accordance with section 31(2) of the 1989 Act.

It is unlawful to restrict the liberty of a child in a secure children’s home unless one of the criteria in section 25(1) is met, no matter how short the period of restriction.

The purpose of the statutory framework governing the placing of looked after children being looked after by local authorities or accommodated by other agencies in secure children's homes is to:

• Protect them from unnecessary and inappropriate placement in secure children's homes;
• Ensure that administrative decisions taken by local authorities or other agencies are scrutinised and endorsed by the court; and
• Ensure that any placements are only for so long as is necessary and appropriate.

When an application is made to the court for a secure accommodation order, it is the responsibility of that court to safeguard the rights of the child by satisfying itself that the criteria for keeping a child in secure accommodation are met. The court is required to make an order for such maximum duration (within the terms of the 1991 Regulations) as it considers appropriate.

The welfare of the child is not the paramount consideration in a secure accommodation application and, although it remains relevant, section 1 of the 1989 Act does not apply. The guardian must adapt their general duties to the specific requirements of the court application, recommending what she or he believes to be in the best interests of the child. [18]

_{[18] Re M (Secure Accommodation Order) [1995] 1 FLR CA 418}

Placements of children aged under 13

Local authorities must obtain the approval of the Secretary of State before placing a child under the age of 13 in a secure children's home. [19]

_{[19] See regulation 4 of the Children (Secure Accommodation) Regulations 1991 (SI 1191/1505), amended by SIs 1992/2117 and 1995/1398).}

Once a child's secure placement ends, if a new secure placement is to be made while that child remains under the age of 13, the local authority must again seek the approval of the Secretary of State for that placement. However, if the local authority wish to extend the original secure placement (i.e. where there is no break in the secure placement) further Secretary of State approval is not necessary.

Secretary of State approval process for under 13s

The process for seeking this approval can be found here: GOV.UK website [20]

_{[20] GOV.UK, Secure children’s homes: how to place a child aged under 13}

Maximum period in secure accommodation without court authority

The 1991 Regulations limit the maximum period that a child, to whom section 25 of the Act applies, may be kept in secure accommodation without the authority of the court. This maximum period is 72 hours, either consecutively or in aggregate, in any period of 28 consecutive days. [21]

_{[21] Whilst a local authority can detain a child in secure accommodation for 72 hours without the authority of the court, they will still first need to obtain approval from the Secretary of State to make the placement for a child under the age of thirteen.}

Some relaxation of this provision is provided 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 he was placed in secure accommodation, 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.

This limited extension of the 72 hour rule is intended to cater for the emergency placement of a child in secure accommodation at a time when both the major proportion of that 72 hours has already been used up and it is unlikely to be possible to arrange for an application to be heard by a court before the 72 hours limit expires. An application must be brought before the court within the 72 hour period if it is intended the placement should continue beyond that period. It will be especially important to bring forward applications in those cases where the 72 hour period would expire on a day when courts do not normally sit.

Where a court has authorised a child to be kept in secure accommodation, any time during which that child was kept in such accommodation before the court's authorisation was given shall be disregarded for the purposes of calculating the maximum period of any subsequent occasion in which the child is placed in such accommodation after the period authorised by the court has expired. The practical effect of this regulation is that the 28 day period [22] will restart on the expiry of any court order. This is intended to meet the case of a child who may need to be re-admitted to secure accommodation as an emergency, and where:

• During the previous 28 days the child has had his liberty restricted for up to 72 hours; and
• A court has authorised such a placement for a period of less than 28 days.

_{[22] The Children (Secure Accommodation) Regulations 1991 – Regulation 10(1)}

Applications to court

Staff working in a secure children's home, social workers and youth justice staff should be aware of the need to prepare children adequately for the court hearing, giving careful consideration to the age and understanding of the child. It will also be necessary to explain to the child and, if appropriate, their parents, the entitlement to funding for legal proceedings (see para 1.22).

Local authority staff presenting applications for children to be detained on welfare grounds may benefit from additional supervision to support them in preparing and presenting evidence to the court in the required format, so the court has all the information it requires to determine whether the child’s circumstances meet the statutory criteria for placing or keeping them in secure accommodation.

A court is unable to exercise its powers to authorise a period of secure accommodation under section 25 of the 1989 Act if the child is not legally represented in court unless the child, having been informed of his right to apply for representation and having had an opportunity to do so, has refused or failed to apply. Children should be encouraged to appoint a legal representative in such proceedings and given every assistance to make such arrangements. The provision of funding for such proceedings is set out in paragraph 1 of Part 1, Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Appointment of a Children's Guardian

The court must appoint a CAFCASS officer as children's guardian for the child unless it is of the opinion that it is unnecessary to do so in order to safeguard the child's interests. [23] The officer shall be appointed according to the rules of the court and be under a duty to safeguard the interests of the child in the manner prescribed in such rules. This is an important provision designed to ensure that the welfare of the child being provided with secure accommodation is protected adequately.

_{[23] Section 41(1) of the 1989 Act}

Duration of secure accommodation orders

The maximum period a court may authorise a child to be kept in secure accommodation is three months.

Where the local authority looking after the child, or other authority or person as appropriate, believes the child's placement in secure accommodation should continue beyond the period specified in the initial court order, a further application must be made to the court.

A court can authorise a child to whom section 25 of the 1989 Act applies to be kept in secure accommodation for a further period of up to six months at any one time.

Where the court adjourns consideration of an application, it may make an interim order authorising the child to be kept in secure accommodation during the period of the adjournment. An interim order will be made only where the court is not in a position to decide whether the criteria in section 25(1), have been met. If the court adjourns consideration of an application and does not make an interim order, the child cannot be placed in secure accommodation during the period of the adjournment unless his circumstances subsequently change, when the normal procedures will apply.

Where the local authority proposes to make an application for an order under Section 25 after the first 72 hour period of detention; or where it is planned to make an application to extend the child's detention in secure accommodation beyond the period initially authorised by a court, the people below must be notified:

• The child's parents;
• Any person who is not a parent of his but who has parental responsibility for him;
• The child’s independent visitor, if one has been appointed; and
• Any other person who that local authority considers should be informed.

The maximum period for which a court may authorise a child's remand to a secure children's home, as youth detention accommodation [24], shall not exceed 28 days on any one occasion without further court authorisation.

_{[24] Refer to section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act}

Appeals

In relation to appeals [25] to the Court against decisions to authorise, or refusal to authorise, applications for secure accommodation: where an appeal is against an authorisation, a child's placement in secure accommodation may continue during consideration of the appeal.

_{[25] Appeals are under section 31K of the Matrimonial and Family Proceedings Act 1984 subject to any order made under section 56(1) of the Access to Justice Act 1999.}

Where a court has refused to authorise a placement in secure accommodation, and the local authority looking after the child, or other authority or appropriate person is appealing against that decision, the child must not be detained or placed in secure accommodation during consideration of the appeal.

Secure accommodation provided by health and local authorities for education purposes

The section 25 safeguards have also been extended to children, other than those looked after by local authorities, who are accommodated, in particular, by health authorities, or in independent hospitals or care homes (regulation 7(1)(a) and (b) of the 1991 Regulations).

Under section 85 of the 1989 Act, where a child is provided with accommodation by any health or local authorities for at least three months, there is a requirement to notify the appropriate officer in the responsible authority of the case. It is recommended that the local authority should be notified about the use of such accommodation in relation to a child, irrespective of whether or not the child has been accommodated for three months or more.

Children to whom section 25 does not apply

Regulation 5 of the 1991 Regulations describes various groups of children to whom section 25 of the 1989 Act does not apply. Two categories of children are excluded from these provisions:

• Children detained under any provision of the Mental Health Act 1983 or in respect of whom an order has been made under section 90 or 91 of the Powers of the Criminal Courts (Sentencing) Act 2000;
• Children aged 16 or over but under 21 provided with accommodation in a community home under section 20(5) of the 1989 Act, and children subject to a child assessment order under section 43 of the 1989 Act.

Children detained under section 38(6) Police and Criminal Evidence Act 1984

Regulation 6 of the 1991 Regulations provides that section 25 of the 1989 Act applies with modifications to:

• Children detained under section 38(6) of the Police and Criminal Evidence Act 1984 (detained children).

For these children, the criteria in section 25(1) of the 1989 Act are modified so that the children may not be placed, and if placed, may not be kept in secure accommodation unless it appears that any accommodation other than that provided for the purpose of restricting liberty is inappropriate because:

• The child is likely to abscond from such other accommodation; or
• The child is likely to injure himself or other people if he is kept in any such other accommodation.

Notifications of placement [26]

Notifications of placement should preferably be made by telephone as soon as possible after placement and it is essential that secure children’s homes providers are aware of how to contact responsible authorities out of normal office hours (e.g. weekends and public holidays). Where notification is made by email, then the provider must make sure that they receive acknowledgement of this from a senior representative of the responsible authority within 12 hours.

_{[26] Regulation 9 of the 1991 Regulations.}

Secure accommodation reviews

Each local authority responsible for the placement of a child in secure accommodation is required to appoint at least three people, at least one of whom is neither a member nor an officer of the local authority, to review whether there is a continuing need for the child to remain in secure accommodation. The initial secure accommodation review meeting must be held within one month of the start of the placement and thereafter reviews must take place at intervals not exceeding three months.

The responsibility for undertaking the reviews rests solely with the local authority looking after the child and not with the local authority managing the secure children's home, where different.

The persons appointed must satisfy themselves, with regard to each case they review, as to whether or not:

• The criteria for keeping the child in secure accommodation continue to apply;
• The placement in the secure children’s home continues to be necessary; and
• Any other description of accommodation would be appropriate for him; and
• In doing so they must have regard to the welfare of the child whose case is being reviewed.

The persons appointed to undertake the review must also ascertain and take account of, as far as is practicable, the wishes and feelings of:

• The child;
• The child's parents;
• Any person who is not a parent but who has parental responsibility for the child;
• Any other person who has had the care of the child, whose views the persons appointed consider should be taken into account;
• The child's independent visitor if one has been appointed; and
• Provider of the secure accommodation in which the child is placed if this is not the authority looking after the child. [27]

_{[27] The Children (Secure Accommodation) Regulations 1991 – Regulation 16}

The purpose of these meetings is only to review the issue of whether or not the conditions for detaining the child in secure accommodation still apply. The secure accommodation review is not a substitute for and does not replace the statutory review of the child's overall care plan, which must be chaired by the child's IRO.

Forward planning for children detained on welfare grounds is essential. Whilst the child is detained, the placing authority will need to consider how placement in an "open" setting might meet the child's needs in future. This should mean that, where there is the possibility of a review panel recommending that the criteria for detaining the child no longer apply, contingencies are already in place. Clearly, there are potentially damaging consequences if a child who has recently met the section 25 criteria is released into unsuitable accommodation unable to provide the necessary support for them to manage the transition back into the community.

The decision as to whether the criteria are no longer met is for the local authority to make giving careful consideration to the recommendations of the panel.

If the review panel recommends that the criteria for restricting the child's liberty no longer apply, or that the placement is no longer necessary, or another type of placement would be appropriate, then the local authority must urgently convene a statutory review of the child's care plan, chaired by their IRO. [28] The review should consider how the child's needs will be met in a non-secure setting and plan how this move will be managed so that it takes place in a way that is least disruptive to the child concerned.

_{[28] The IRO Handbook Paragraphs 4.13-4.15}

All the parties should be informed, if practicable, of the outcome of the secure accommodation review, the reasons for the outcome, and what actions, if any, the local authority proposes to take to carry forward the plan for the child's care.

Records

In addition to the records required through regulations 37, 38, and 39 in the Children's Homes Regulations 2015, Regulation 17 of the 1991 Regulations requires each person, organisation, or local authority responsible for the management of the secure children's home to keep records giving details of:

• The name, date of birth, and sex of the child;
• Details of the care order or other statutory provision under which the child is in the home and details of any local authority involved with the placement;
• The date and time of the placement, the reason for the placement, and the name of the offer authorising the placement and where the child was living before the placement;
• Persons informed under regulations 9, 14, or 16(3);
• Court orders made under section 25 of the 1989 Act;
• "Secure accommodation reviews" undertaken under regulation 15;
• The date and time of any occasion when the child is locked in his own room in the children's home other than during his usual bedtime hours, the name of the person authorising this action, the reason for it, and the date and time on which the child ceases to be locked in that room; and
• The date and time of his discharge and his address following the discharge from the secure children's home.

The Secretary of State may require copies of these records to be sent at any time.