SUMMARY OF CASELAW RELATING TO CHILDREN'S RIGHTS AND SECURE ACCOMMODATION

This paper looks in detail at the current legal position with regard to children's rights and secure accommodation and is divided into three parts as follows:

Section One

The Children (NI) Order 1995 and The Children (Secure Accommodation) Regulations 1996

Section Two

The Case law

a) The Implications of Article 5 1(d) ECHR as incorporated by The Human Rights Act 1998.

b) The Right to a Fair Hearing for Children - the concept of participation and understanding

Section Three

The United Nations Convention on the Rights of the Child.

SECTION ONE - THE CHILDREN (NI) ORDER 1995 AND THE CHILDREN (SECURE ACCOMMODATION) REGULATIONS 1996

ARTICLE 44 CHILDREN (NI) ORDER 1995 states:

1) Secure accommodation means accommodation provided for the purposes of restricting liberty
2) Subject to paragraphs 3 to 10, a child who is being looked after by an authority may not be placed, and if placed, may not be kept in 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

Importantly, in the context of ensuring a fair hearing for children, Article 44 (7) Children (NI) Order 1995 states as follows;

" No court shall exercise the powers conferred by this article in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for legal aid and having had the opportunity to do so, he refused or failed to apply"

THE CHILDREN (SECURE ACCOMMODATION) REGULATIONS 1996

Regulation 2, states that children under 13 cannot be placed in secure accommodation without the approval of the Department.

Regulation 3, prohibits the use of secure accommodation provisions for children and young people in certain circumstances as follows;

• children and young people who are detained under any provision of The Mental Health (NI) Order 1986;
  
• children and young people to whom Article 21(5) of The Children (NI) Order 1995 applies. This section applies to Trusts' exercise of their discretionary duties to young people who are over 16, but under 21 who are accommodated by them in order to safeguard and promote the young person's welfare;
  
• in relation to children and young people who are subject to a child assessment order under Article 62 Children (NI) Order.

Regulation 6, establishes that the maximum period of time a child/young person can be kept in secure accommodation without the authority of the court is 72 hours (whether or not consecutive) in any period of 28 consecutive days.

Regulation 7, establishes that subject to Regulation 8, the maximum period for which a court may authorise secure accommodation is three months.

Regulation 8, enables a court to authorise an extension of the period a child/young person can be held in secure accommodation for a further period but not exceeding six months.

Regulation 9, stipulates the range of persons who should be notified when a child is accommodated in a secure unit.

Regulation 10, requires the Trust to appoint three persons to review the keeping of the child in secure accommodation and one of these persons must be independent of the Trust. The first review must take place within 1 month of the inception of the placement and then at intervals not exceeding 3 months

Regulation 11, requires that the persons appointed to carry out the review must seek inter alia the views of the child before the review.

Regulation 12, stipulates the records, which must be kept

Regulation 13, prohibits the use of accommodation for restricting liberty in voluntary homes and private children's homes.

SECTION 2 - THE HUMAN RIGHTS ACT 1998

The Human Rights Act 1998 commenced in October 2000. It established in domestic law, most of the rights enshrined in The European Convention On Human Rights (ECHR).

The Human Rights Act 1998 requires all public authorities to act in a way which is compatible with the rights enshrined in the ECHR and the courts must consider the case law of The European Court Of Human Rights when determining cases.

The main debate about secure accommodation provisions after the incorporation of the ECHR by The Human Rights Act 1998, centred around their apparent incompatibility with Article 5 of the ECHR. Article 5 enshrines the right to liberty and security of the person, which, as with all ECHR rights applies to children as well as to adults. Issues have also arisen in relation to the right to a fair hearing for children under Article 6 ECHR in the context of secure accommodation applications and certainly in a broader sense the theme of participation of children has been increasingly evident in judgments of the European Court of Human Rights.

Article 5 ECHR is set out in its entirety for ease of reference below.

ARTICLE 5 ECHR

RIGHT TO LIBERTY AND SECURITY

1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following circumstances and in accordance with a procedure prescribed by law:

a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c) the lawful arrest or detention of a person for the purposes of bringing him before the competent legal authority…;
d) the detention of a minor by lawful order for the purposes of educational supervision;
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics, drug addicts or vagrants;
f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country….

The potential difficulty lay in the fact that Article 5 1 d) clearly states that the deprivation of liberty from a child/young person will only be justified in circumstances where the detention is for the purposes of educational supervision. Our Regulations, however, specifically define secure accommodation as accommodation for the purposes of restriction of liberty. The Regulations do not use the term "educational supervision".

The Court of Appeal has indicated that the use of secure accommodation is a deprivation of liberty under Article 5 and that to be justified it must fall within one of the categories a) - f) set out above. The only categories, which will be relevant to secure accommodation in a care setting, are d) and e), as it would not be possible to use the other categories. The focus has been on category 5 1d).

THE CASES RELATING TO ARTICLE 5 ECHR

BOUAMAR V BELGIUM (1)

The case concerned a young boy of 16 who was remanded on nine successive occasions to a remand prison, due to the lack of another suitable alternative placement. The government contended that it was "materially impossible" to find a more suitable placement for the child, due to a simple lack of appropriate accommodation and from the nature of the young person's personality and behaviour. The applicant challenged this in his submission to the European Court. The government stated in their submission to the European Court of Human Rights that the placements complained of were part of an overall educative programme initiated by the courts, and that the young person's behaviour during the relevant time enabled them to gain a clearer picture of his personality.

The European Court Of Human Rights did not share this view. They were of the opinion that "the detention of a young man in a remand prison in conditions of virtual isolation and without the assistance of staff with educational training cannot be regarded as furthering the educational aim"

"The Belgian state chose the system of educational supervision with a view to carrying out its policy on juvenile delinquency. Consequently, it was under an obligation to put in place appropriate institutional facilities which met the demands of security and educational objectives"

The Court found that the nine placement orders were incompatible with Article 5 1d) as the placements did not provide "educational supervision".

KONIARSKA V UK (2)

This was a decision by The European Court Of Human Rights as to the admissibility of a complaint by the applicant in relation to the use of secure accommodation. The decision is dated 12 October 2000 and can be found on the HUDOC website (www.coe.echr) by searching admissibility decisions.

The applicant was convicted of common assault, criminal damage and affray in March 1995 and in May 1995 she was detained under The Mental Health Act for assessment. One Consultant Psychiatrist took the view that the applicant suffered from a psychopathic disorder, which was not treatable, but an assessment by a Psychiatrist appointed by the applicant's solicitor did not reveal criteria for psychopathic disorder. The applicant was discharged from hospital to Glenthorne Centre in August 1995.

On 23 November 1995 an application was made by the local authority for the applicant to be kept in secure accommodation until her 18th birthday (July 1996). At the same time the applicant applied to revoke her care order. The application for secure accommodation was ultimately successful, although, on appeal, the length of detention was decreased.

On expiry of the secure accommodation order the applicant returned to live with her parents.

The applicant argued that her rights had been breached under Articles 5 (right to liberty and security of the person), 3 (freedom from inhuman and degrading treatment) and 8 (right to family life) of the ECHR.

1. She complained that she was beyond school leaving age and that she received no education while detained and therefore her detention was not compatible with Article 5 1 d).

2. She complained that her detention amounted to intense mental suffering amounting to inhuman and degrading treatment.

3. She complained that the further detention period was in breach of her right to family life, in that her ability to make home visits was limited.

The Findings of the European Court of Human Rights in Koniarska v UK

The Court was of the opinion that the applicant was deprived of her liberty within the meaning of Article 5 (1). Therefore her detention had to fall within one of the exceptions under Article 5(1) a)-f). The Court considered (although this was not argued by the Government) the relevance of the exception under Article 5 1e) and stated:

"The applicant has been diagnosed as suffering from a psychopathic disorder and there is no suggestion that at the time of the making of the secure accommodation orders that this condition did not exist any more. Further her detention was found to be needed as there was a danger that she would injure herself or others. There could thus be said to be medical and social reasons for her detention"

Unfortunately the court did not give a formal ruling under Article 5 1 e), but considered the 5 1 d) exception.

In considering the point raised that the applicant was over school leaving age, the Court stated that Article 5 1 d) applied to "minors" and not just those below official school age. They were of the view that detention could still be for the purposes of educational supervision.

The applicant argued that her detention was not for the purposes of educational supervision and that any education she received was incidental. The Court stated as follows:

"The Court considers that, in the context of the detention of minors, the words "educational supervision" must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned"

The Court was of the view that the secure accommodation orders made were capable of constituting part of educational supervision.

The Court, however, then looked in detail about the reality of the educational supervision provided at Glenthorne, which is described in the judgment as a specialist residential facility for disturbed young people. As part of its multi disciplinary approach Glenthorne provided an educational programme in which young people were taught in groups of three or four and sometimes on a one to one basis. Until January 1996, the applicant had attended a full range of classes until an incident occurred, which meant she could not attend all classes. The applicant continued to take part in some classes and in life skills and social skills programmes. The Court was of the view that extensive educational provision was made and that the fact that the applicant chose not to go to some of the classes did not alter this fact.

The Court distinguished the case of Bouamar v Belgium and found that the applicant's detention was justified under Article 5 1 d) on the grounds of educational supervision.

The Court found that although the applicant was very unhappy, there was nothing to indicate that her treatment had amounted to the threshold required for inhuman and degrading treatment.

The Court found that the interference with the applicant's family life was justified.

IN RE K (A CHILD) ( SECURE ACCOMMODATION ORDER; RIGHT TO LIBERTY) [2001] Fam 377

This case involved an appeal on behalf of a 15-year-old boy against the making of a secure accommodation order on 30 June 2000. The issue under determination was whether a secure accommodation order was a deprivation of liberty and, if so, whether such deprivation fell within the exceptions set out in Art 5 1a) -f) of the European Convention. The case of Koniarska v UK was decided prior to the judgement of The Court of Appeal in this case and was referred to.

The facts of this individual case were that the young person had displayed serious destructive, aggressive and sexualised behaviour from a young age. He was placed in secure accommodation at the age of 11, with the consent of The Secretary Of State in 1997 on grounds that he presented a serious risk to himself and others.

Between October and December 1998 there was a marked deterioration in his behaviour. He was charged with two offences of indecent assault and was involved in two incidents of fire setting. He assaulted members of staff.

He was placed in secure accommodation again and the principal of the Unit expressed concern in a letter about his sexualised and aggressive behaviour, stating that he was a very dangerous young man.

During the period August 1996 -April 1999 the applicant was convicted of indecent assault, criminal damage, burglary, common assault, arson and criminal damage caused by arson.

Findings of the Court of Appeal

1. Secure accommodation was a deprivation of liberty under Article 5. Therefore, it had to fall within one of the exceptions under Article 5 1 a) -f) to be justified.

2. On the facts of the appeal the young person was receiving education, which was carefully supervised, although there was criticism abut the lack of provision of appropriate therapy.

3. The duty of the English Court under The Human Rights Act is to try and find a compatible interpretation.

4. In each case where a secure accommodation order is applied for, the English Court, at any level, must have the requirements of Article 5 1 d) in mind when it is considering the relevant criteria, and thereby ensure the compatibility of the section with the Convention right.

5. The case of Koniarska was followed. In the context of minors, the words educational supervision must not be equated rigidly with notions of classroom teaching…educational provision embraced many aspects of the exercise of parental authority of parental rights.

DG V Ireland application 39474/98, judgment of European Court of Human Rights 16 May 2002

The minor applicant in this case challenged the legality of his detention without charge or conviction in a penal institution between 27 June and 28 July 1997. The facts of the case were that the young person concerned was released from St Patrick's Institution in March 1997. He slept rough on the first night of his release and thereafter resided on a temporary basis in a homeless hostel. The applicant's solicitor wrote five times to the Board asking for proper provision to be made. At a case conference it was agreed that the applicant needed to be placed in a high support therapeutic unit for 16- 18 year olds, but that no such unit existed in Ireland and could not be put in place in time to meet the applicant's assessed needs. It was decided that the Board would look into placements outside Ireland and into interim options in Ireland.

The applicant's solicitor applied for judicial review in April 1997 requesting the immediate provision of suitable care and accommodation for the applicant.

The High Court, on evidence presented to it, concluded that the applicant was not mentally ill but that he had a personality disorder; that he was a danger to himself and others, that he had a history of criminal activity, violence and arson, that he had absconded from non secure institutions, that he had failed to co operate with staff and with a psychiatric assessment and that it was "common case" that the young person needed to be placed in a secure unit where he could be looked after but that no such unit existed in Ireland.

The applicant was ultimately sent to St Patrick's (a penal institution) due to the lack of any other facility. On 27 June 1997 he was brought to St Patrick's and placed in a padded cell overnight. The High Court had ordered that he was to be subject to the normal discipline of the institution and was to have a full psychiatric evaluation. The High Court requested the fullest co operation between the institution and the Board in terms of allowing professionals already involved with the young person to continue to have an input and in particular the High Court recommended that normal visiting restrictions be waived as much as possible in the 24 hour period after his detention.
The wide range of services, which were available at St Patrick's were outlined in a booklet which was given to the applicant on admission. He was asked if he wished to attend education classes, but he made no request to do this and at no time took part in the educational programme available.

The applicant made submissions to the European Court of Human Rights that his detention at St Patrick's from 27 June 1997 to 28 July 1997 was not in accordance with the procedures prescribed by law, nor was it for the purposes of educational supervision within the meaning of Article 5 1 d). He contended that he was a minor in need of special care and protection but that he had been detained in a penal institution where his unique status caused other detainees to believe that he was a serious sexual offender pursuant to which he was threatened and abused. He argued that this was in contravention of Article 5 1) ECHR.

The European Court of Human Rights considered that the applicant who was 17 and therefore post the age of compulsory education was still a minor for the purposes of "educational supervision" in the context of Article 5 ECHR as he was under 18.

"The court does not consider …that St Patrick's penal institution itself constituted educational supervision. As noted above, it is a penal institution and the applicant was subject to its disciplinary regime. The education and other recreational services were entirely voluntary and the applicant's history was demonstrative of an unwillingness to co-operate with authorities; indeed the government itself accepts that the applicant did not avail of the educational facilities. There is no entry in the applicant's prison file, in the medical or psychiatric reports submitted or any specific submission by the government detailing any instruction received by the applicant during his detention at St Patrick's. The only indication of his participation in recreational facilities is a brief reference to playing football…Most importantly the High Court itself was convinced that St Patrick's could not guarantee his constitutional educational rights or provide the special care he required; even with the special conditions the High Court attached to his detention, the High Court considered St Patrick's to be the best of four inappropriate options and that his detention there should be temporary."

The Court recalled that the applicant's detention could be compatible if it was an interim custody measure for the purpose of putting in place an educational supervisory regime, which was followed speedily by implementation of this regime. The Court did not feel that this was such an interim measure.

The European Court of Human Rights found that there and been a violation of Article 5 1 d) in respect of the applicant's detention at St Patrick's from 27 June to 28 July 1997.The applicant was detained in breach of Article 5 1).

POINTS TO NOTE IN THE CASE LAW

• Both Koniarska and AK were extreme cases. AK was described by a professional as being the most dangerous young person he had come across in 23 years of experience.
• In both cases a range of other specialised provision and professional help had been implemented for the young people concerned and the use of secure accommodation was as a last resort.
• Lady Butler Sloss made it clear in her judgement in AK that all applications for secure accommodation orders should be considered carefully in light of the Article 5 requirements.
• We need to consider the nature of the service provided in secure accommodation, as this is likely to be under scrutiny in any future legal challenges.
• The cases of Koniarska and AK referred to above related to facilities where comprehensive education programmes were in place and accessible by the young people concerned.
• It is clear from the case of DG v Ireland and the case of Koniarska v UK that the notion of educational supervision and the duties this imposes can extend beyond official school leaving age.
• The European Court of Human Rights in the case of DG v Ireland was critical of the fact that no instruction, education or recreational activities were recorded in the young person's file for the duration of his detention in St Patrick's.
• The notion of educational supervision extends to the way in which parental responsibility is exercised by the Trust and the care given to the child. There could, therefore, potentially be an issue if, for example, a child is not receiving appropriate psychiatric/medical/therapeutic help whilst in secure accommodation.

CASE LAW RELEVANT TO ARTICLE 6 CONSIDERATIONS; A FAIR HEARING FOR CHILDREN

Bouamar v Belgium (3) 1988

It should be noted that the European Court of Human Rights in this case made reference to the importance of participation;

" The Court reiterates that the scope of the obligation under Article 5 4 is not identical in all circumstances or for every kind of deprivation of liberty. Nevertheless in a case of the present kind, it is essential not only that the individual concerned should have the opportunity to be heard in person but that he should have the effective assistance of his lawyer…"

T & V v UK (4) 1999

In order for children to be accorded a fair hearing pursuant to Article 6 ECHR they must be able to participate in, and understand the proceedings in which they are involved. The European Court of Human Rights stated in its judgment that it is essential that cases involving children are dealt with in a manner which takes full account of the child's age, level of maturity and intellectual and emotional capacities and that steps are taken to promote his/her ability to understand and participate in the proceedings.

In Re AS (Secure Accommodation Order) [1999] 1FLR 103

The High Court quashed a secure accommodation order, which had been made without notifying the young person concerned. Although a solicitor had been appointed, the solicitor had not had time to interview the young person and therefore had not been able to take instructions.

Re K, 2001 (5)

The Court of Appeal commended the provision of separate representation for K, which allowed him to participate to some degree in the secure accommodation proceedings;

"Having been assessed as having a mental age of 8, one might raise an eyebrow at his ability to give instructions and his separate representation at various proceedings including before this court. But there is no doubt that it has been very beneficial for him to be allowed to play a part and to have some understanding of the legal procedures which have the effect of depriving him of his liberty"

Re C (6) , 2001

An application for an interim care order and for a secure accommodation order were made in respect of a 15 year old girl. The child's parents and the guardian were served with notice of the secure accommodation application, but the child's solicitor was not. On the morning of hearing time was abridged allowing C's solicitor about two hours to take instructions. On appeal , the Court of Appeal dismissed the appeal , but importantly concluded that although an application fro a secure accommodation order was not classified as a criminal charge within the meaning of Arts 6 2) and 6 3) of the ECHR, a child facing such an application should be afforded the five specific minimum rights set out in Art 6 3) as a matter of procedural fairness i.e. the right to be informed promptly of the charge, have adequate time and facilities for preparation of his defence, have the right to defend himself in person or through legal assistance of his own choosing or be given free assistance when the interests of justice so require.

N&W HSST v DH, 27 June 2001 (7)

"It is clear that the legislation envisages the child being present and involved in the legal process in an application for a secure accommodation order"

"Article 6 ECHR is also relevant…to proceed in the absence of D, even though he has legal representation, does not provide him with a fair hearing. He is entitled to be present, to hear what is said and to have access to the written reports. This is a civil and not a criminal matter. Nonetheless, it does involve the child's liberty and requires close scrutiny and proper procedure"

Re D (Unreported) June 2002

The right of a child to be present at a case which may determine his future and his liberty should be specifically addressed on its merits in every case and should not be treated as a matter of casual consequence (8)

Sahin v Germany/ Sommerfeld v Germany (9)

Violations of Article 8, in which procedural fairness is inherent, were found in both these cases because of a failure to hear direct evidence from children. These cases are under appeal to the Grand Chamber, but are indicative of the importance which the Eur Ct HR attaches to the participation rights of children.

In the Sahin case, the European Court of Human Rights made particular reference to the fact that the child had not been heard in court at any stage in the proceedings;

" In the court's opinion, the German courts failure to hear the child reveals an insufficient involvement of the applicant in the access proceedings. It is essential that the competent courts give careful consideration to what lies in the best interests of the child after having had direct contact with the child. "
SECTION 3

THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

The key articles of The UNCRC are set out below.

Article 3

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 9

The child has a right to live with his or her parents unless this is deemed to be incompatible with the child's best interests. The child also has a right to maintain contact with both parents if separated from one or both.

Article 12

State parties shall assure to the child who is capable of forming his or her own views, the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or appropriate body, in a manner consistent with the procedural rules of law.

The UNCRC specifically deals with the aims of education under Article 29

ARTICLE 29 UNCRC

1. State Parties agree that the education of a child shall be directed to:

a) the development of the child's personality, talents and mental and physical abilities to their fullest potential;
b) the development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;
c) the development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilisations different from his or her own;
d) the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of the sexes and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
e) the development of respect for the natural environment.

The UNCRC states (Article 37) that no child should be deprived of his or her liberty unlawfully or arbitrarily and that imprisonment of a child should be in conformity with the law and be used only as a measure of last resort and for the shortest period of time possible. It is also stated that every child deprived of liberty should have access to prompt legal advice, should have contact with family and should be able to challenge the legality of their detention.

It is of note that the UNCRC addresses the issue of deprivation of liberty in an assumed criminal context and not in the context of providing care for a child. The provisions in relation to the protection of a child who is temporarily or permanently deprived of his/her family environment are found at Article 20 which mentions the need to provide special protection in these circumstances in the form of foster or residential placements. Secure accommodation is not mentioned at all in this context.

Tara Caul Head of Legal Unit, Children's Law Centre

Copyright @Children's Law Centre, September 2003. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the Director of the Children's Law Centre.

Disclaimer

The information provided in this document is for guidance only and should not be regarded as a complete or authoritative statement of the law. In all cases appropriate legal advice should be sought from a solicitor. The Children's Law Centre will not be held in any way responsible for the use of information in this pack by other individuals, organisations or agencies.