November 27th, 2019 by James Goudie KC

B (Secure Accommodation Order) (2019) EWCA Civ 2025 is an appeal by a local authority against the refusal of its application for a secure accommodation order under Section 25 of the Children Act 1989. The appeal raised important and overlapping questions on the interpretation of Section 25, including whether, when considering such an application, the Court is obliged to carry out an evaluation of “proportionality”, pursuant to Articles 5 and 8 of the ECHR. Baker LJ addressed the HRA and proportionality from paragraph 74.  On the meaning of “deprivation of liberty” in Article 5 he referred to Guzzardi v Italy (1980) 3EHRR 332 at paragraphs 92-93 and  P v Cheshire West and Cheshire Council (2014) UKSC 19, to the “degree and intensity of control” that amounts to “a deprivation of liberty”, and to in practice an Order under Section 25 involving a “deprivation of liberty” under Article 5, and an interference with the child’s right to respect for private and family life under Article 8.

Section 25 is compatible with Article 5, but (paragraph 81) that does not absolve a Court from considering the human rights involved in an application.  On the contrary, the local authority and the Court must comply with the ECHR and the jurisprudence under it. The test of review adopted by the Courts (paragraph 82) is “the principle of proportionality”. That applies both to Article 8 and to Article 5.

Baker J then referred (paragraph 83-87 inclusive) to “substantial jurisprudence” on “the concept of proportionality”.  He continued (emphasis added):-

“88. In my judgment, an evaluation of proportionality must be carried out by the local authority before applying for an order under s.25 and by the court before granting such an order. Proportionality is one of the “relevant criteria” which must be satisfied before an order is made.

89. The ECHR, in particular Article 8, is part of the bedrock of the Children Act… Since the principle of proportionality is integral to Convention rights, it is incumbent on local authorities and courts not to apply for, or grant, orders under s.25 where … the impact of infringement of the rights is “disproportionate to the likely benefit”. Secure accommodation is (paragraph 90) a “measure of last resort.”. To deprive a child of liberty in circumstances which were not a last resort would be disproportionate.”

At paragraph 94, Baker LJ said that so long as there continues to be a shortage of approved secure children’s homes to accommodate young people requiring secure accommodation, there is “greater likelihood” that applications under Section 25 will be refused on grounds of proportionality.

Green J agreed, adding observations on the application of the proportionality test at paragraph 116-121 inclusive; and Floyd LJ agreed with both Judgments.

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