FD25C40107 - [2025] EWHC 1264 (Fam)

There are statutory provisions which specifically provide for a legal framework that local authorities can use in a case where a child in care absconds from a placement. Section 25 of the Children Act 1989 contains provisions which enable a local authority to apply to place a child in secure accommodation. S25(1) provides:

“Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in 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”

If a Local Authority wishes to place a child in secure accommodation, it can make an application to the court under s25(2) for an order permitting such a placement and the court can authorise the placement for a period of up to 3 months: see Regulation 11 of the Children (Secure Accommodation) Regulations 1991, and thereafter periods of up to 6 months. In this case it does not appear that any consideration was given by the Local Authority as to whether (a) they could make a case that LB met the criteria under s25 or (b) if they did so, whether there was secure accommodation that might be available for LB. Instead, it appears that the Local Authority made an application under the inherent jurisdiction of the High Court to permit the placement provider to impose restrictions on LB which had the effect of depriving her of her liberty. Thus, instead of exploring the statutory framework applied to children who abscond from care and provides protections for the child, this Local Authority appears to have bypassed that statutory framework by applying for an order under the inherent jurisdiction.

The question as to whether and if so, in what circumstances children in the care of a local authority can lawfully be deprived of their liberty in placements which are not classified as “secure accommodation” under s25 was considered by the Supreme Court in Re T (A Child) [2021] UKSC 35. In that case Lady Black, who gave the leading judgment said at para 1:

“The background to the litigation is the shortage of provision for children and young people (hereafter generally referred to simply as “children”) whose needs are such that they require special limitations on their liberty. Some of these children need to be placed in a secure children’s home but no place can be found for them in one of the small number of approved secure children’s homes that there are in England and Wales. Some would be likely to meet the criteria for placement in a secure children’s home, but would be better served by highly specialised therapeutic care of a different kind, albeit still with their liberty strictly limited”

I fully accept that there is a desperate shortage of appropriate placements for children who need highly specialised therapeutic care and that there is also, separately, a shortage of placements for children who need secure accommodation for other reasons, notably because they repeatedly abscond from local authority care. Hence, in many DOLS cases, there local authority provide evidence that it believes that a child would meet the criteria for s25 accommodation but, despite conducting a search, the local authority has not been able to locate any appropriate placement for such a child. Equally, in other cases I have dealt with in recent years the local authority case is that it needs a DOLS order to bridge a gap in time until s25 accommodation becomes available or even that a child has such specialist therapeutic needs that s25 accommodation is unsuitable because such specialist therapeutic interventions cannot be provided within s25 secure accommodation. However, none of those factors apply to this case because, as far as I can determine, no steps have been taken by the Local Authority to consider whether LB meets the criteria for s25 accommodation and, if it is thought that she does meet the criteria, whether any appropriate s25 accommodation is available for her. Thus, as a starting point, it does not appear to me that the factual circumstances set out by Lady Black apply in this case.

I consider that, consistent with the approach taken by the Supreme Court in Re T, s25 accommodation and DOLS orders should not be seen as alternatives to be used by local authorities at their option. Where a child could be accommodated in secure accommodation under the s25 route, that option should be used where available. Use of the inherent jurisdiction should thus be limited to cases where a local authority provides clear evidence to explain why the s25 statutory framework, with its protections for the child, has not been used.