Council did not have reasonable system in place to respond to police requests for accommodation for detained juveniles: Court of Appeal

The case of AR (A Child), R (On the Application Of) v London Borough of Waltham Forest [2021] EWCA Civ 1185 was brought by Just for Kids Law as a ‘systemic challenge’. The children’s legal charity has said that while the challenge was brought against Waltham Forest, the issue affected all London local authorities. The London Councils group and the Association of Directors of Children’s Services were named as interested parties.

The background to the case was that the 16-year-old appellant had been arrested on suspicion of possession of a knife and robbery, and detained at Lewisham Police Station at around 14:30.

The police contacted Waltham Forest to request secure accommodation at around 17:00. The custody sergeant explained to the social worker, in this case the Manager of the Emergency Duty Team, that secure accommodation was required because of the risks that the appellant posed to the public. It was suggested that the appellant could return to his placement overnight, but it was reiterated that the risks to the public posed by the appellant were too high for him to return to non-secure accommodation.

The custody sergeant confirmed with the Team Manager that the council could not source secure accommodation for the appellant. The reasons given for this were that the notice given was too short, and that all the secure accommodation providers were located outside London. At 17:40, an inspector approved the decision that the appellant should therefore remain in police custody until his court appearance the next day.

In April 2020 a Divisional Court (Lord Justice Davis and Mrs Justice Andrews) rejected the claim brought against Waltham Forest.

Counsel for Just for Kids Law advanced four grounds of appeal:

The Divisional Court erred in concluding that the claim was really a complaint about the nationwide lack of secure accommodation due to the absence of funding by central government.
The Court failed to consider the London-wide failure to provide secure accommodation.
The Court erred, in all the circumstances, in concluding that the council's system was reasonable.
The Court erred in concluding that, in any event, it would be appropriate to refuse relief in its discretion.

On grounds 1 to 3, which overlapped, Lord Justice Singh reached the conclusion that the Divisional Court had misunderstood the true position.

The Court of Appeal judge said it was important to recall that the statutory duty to provide a reasonable system was imposed on each individual local authority, not on the central government.

“True it is that the local authority does not have to discharge that duty directly by providing the secure accommodation itself. It may do so by entering into arrangements with others, for example a charity. It may also discharge its duty by making arrangements for the "pooling" of secure accommodation with other local authorities. As Ms Gallagher [counsel for the claimant] submitted at the hearing before us, there is nothing inherently objectionable about that but what is essential is that the local authority cannot avoid the statutory duty imposed on it. The end result of the arrangements it chooses to make must be a reasonable system as set out in Gateshead.” [R (M) v Gateshead Metropolitan Borough Council [2006] EWCA Civ 221; [2006] QB 650]

Lord Justice Singh added that there was no evidence that the central government had caused the difficulties by not providing funding. “Indeed, there was no evidence that the Respondent authority had even applied for central funding. What is clear is that the Secretary of State has the power to make a grant to local authorities in this context under section 82(2) of the 1989 Act.”

The Court of Appeal also said this was a case where in practice there was no realistic prospect of secure accommodation being available for a child in response to a request from the police under section 38(6) of PACE, at least during the week. “There may be some prospect of it at the weekend but even the evidence about that is far from clear.”

At the hearing before the Court of Appeal, counsel for Waltham Forest accepted that there was no prospect in all probability of a place being available for overnight accommodation at short notice during the week.

“Accordingly, in my respectful judgement, this was not a case where something less than 'the ideal' was being achieved (as it was put at para. 82 in the judgment of Davis LJ). 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’,” Lord Justice Singh said.

“Having a reasonable system in place means more than simply having a telephone service or "negotiating" with the police to see if secure accommodation is really required in the circumstances of an individual case. It includes at least the reasonable prospect in practice of being able to provide such secure accommodation in a case where it is needed.”

The Court of Appeal judge said he had reached the conclusion that “this was truly a case where the duty to make reasonable provision as set out in the decision of this Court in Gateshead was not fulfilled. The system which the Respondent authority had in place was not reasonably capable of providing secure accommodation in response to a request under section 38(6) of PACE.”

Lord Justice Singh said he also bore in mind that the problem on the evidence before the Divisional Court and the Court of Appeal was London-wide.

“There simply are no units available which can realistically be used either within London or within a sufficiently close distance that a child could properly be produced in good time at a Magistrates' Court. The stark reality is therefore that children are having to be put into police cells overnight as the norm rather than the exception. This is contrary to the statutory purpose of the 1989 Act, as identified by this Court in Gateshead.”

In relation to ground 4 and relief, Lord Justice Singh said that all that was required was for the Court of Appeal to make a declaration as to the past. “What should happen in the future to take account of that declaration is a matter in the first instance for the Respondent. If anyone has a complaint in law to make about future action or inaction by the Respondent, that could in principle be the subject of new legal proceedings but that is not a matter for this Court in these proceedings.”

He therefore granted a declaration that Waltham Forest “was at the material date (December 2018) in breach of its duty under section 21(2)(b) of the 1989 Act to have a reasonable system in place to respond to requests by the police for secure accommodation under section 38(6) of PACE.”

Jennifer Twite, Head of Strategic Litigation at Just for Kids Law, said: “It is a national scandal that we do not provide proper accommodation for our most vulnerable children when they are denied bail. It has been known for a long time that there are insufficient secure children’s homes, and the fact that there are none in the London area is unbelievable. I hope that this case demonstrates the current position is both unlawful and unacceptable and will lead to serious improvement in this area.”

Caoilfhionn Gallagher QC and Sam Jacobs from Doughty Street Chambers acted for Just for Kids.