Court of Appeal rules the London-wide lack of secure accommodation for children is unlawful

AR (A Child), R (On the Application Of) v London Borough of Waltham Forest [2021] EWCA Civ 1185

This was an appeal against the dismissal of a claim for judicial review, which was brought on the grounds that the Local Borough of Waltham Forest does not have a reasonable system in place for the provision of secure accommodation to meet requests for such accommodation made by the police pursuant to section 38(6) of PACE 1984. The Court of Appeal granted leave and upheld the appeal, ruling that the failure by local authorities in London to provide appropriate alternative accommodation for children arrested and held by the police is unlawful.

Details

The underlying claim for judicial review in this case was brought as a “systemic challenge” to the arrangements which the London Borough of Waltham Forest has in place for the provision of secure accommodation for children who were otherwise to be detained in police cells. Briefly, the case was brought following an incident where the Appellant (AR) who was 16 years old at the relevant time was arrested on suspicion of possession of a knife and robbery and detained at Lewisham Police Station. According to s.38(6) PACE 1984 custody officers must ensure that any arrested juvenile who has been authorised to remain in police detention must be transferred to local authority accommodation unless the officer certifies either that it is impracticable to do so or that no secure accommodation is available and that keeping the child in other local authority accommodation would not be adequate to protect the public from serious harm from that child. When the police contacted the Respondent local authority to request secure accommodation, the Respondent said that they could not source such accommodation because the notice given was too short, and all the secure accommodation providers were located outside London. As a result, the Appellant remained in police custody until his court appearance the next day.

The Court of Appeal, emphasising that “the local authority cannot avoid the statutory duty imposed on it” to provide a reasonable system (at para 62), ruled that the lack of secure accommodation meant that Waltham Forest did not have such a system in place to meet requests by the police, stating at para 64: “The system was inherently likely to fail in the sense that, as a matter of routine, the answer to a police request would be ‘No.’”

The Court of Appeal went a step further, defining what having a system reasonably capable of providing secure accommodation in response to a request under section 38(6) of PACE is. According to the Court, this includes “at least the reasonable prospect in practice of being able to provide such secure accommodation in a case where it is needed”, something which was lacking in this case (para 65 and 66).

Subsequently, the Court found that the London-wide lack of secure accommodation leads to children having to be put into police cells overnight, which is contrary to the statutory purpose of the 1989 Act, as identified in Gateshead (para 67). Lastly, and having considered other remedies, the Court found that the “just and proper course is for the Court to grant a declaration that the Respondent was at the material date in breach of its duty under section 21(2)(b) of the 1989 Act” (Referring to The Children Act 1989 ((para 71)).

Commentary

Although this present challenge was brought against one local authority, Waltham Forest, it sheds light on a deeper structural problem shared amongst all London local authorities, namely the lack of alternative accommodation. There are only 15 secure children’s homes in England and Wales, and none in the London area. As a result, children are held overnight in a police cells every year, despite clear guidance from government that police cells are designed for adults and are an inappropriate place for children to be held.

This case clearly acknowledges the unlawfulness of this practice and will hopefully serve as a call to action for local authorities to adjust their practices to accord with the national guidelines.

Anyone representing a child at the police station should request that any child denied bail should be transferred to local authority accommodation under section 38(6) Police and Criminal Evidence Act 1984. Where bail is not possible, in the majority of cases police should be requesting non-secure accommodation from the local authority. The local authority has an absolute duty to accommodate such children. As this case sadly highlights where police request secure accommodation there often is no available places for that child. However, it is important to bear in mind that the threshold for secure accommodation is very high and is only justified where the police believe that the child will cause serious harm to others before they are brought to court. Non-secure local authority accommodation should present less difficulties and can include a family home if the local authority approve this.

In practice police station representatives dealing with a child being detained must be prepared to make robust representations to custody officers to ensure that the test set out in s.38(6) PACE is properly applied. A copy of the officer’s notes as to why a child cannot be transferred into local authority accommodation (including the required certificate of detention) should be obtained wherever a child is kept in police custody and the client referred for legal challenge if the representative is concerned.

Written by
Niki Hadjivasiliou, Trainee Solicitor, Just for Kids Law