M, R (on the application of) v Gateshead Council

These proceedings are concerned with the question of what duty (if any) is owed by local authorities to provide “secure accommodation” for arrested juveniles whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984 (“PACE”). “Secure accommodation” is “accommodation provided for the purpose of restricting liberty”: see section 25(1) of the Children Act 1969 (“the Children Act”) and section 38(6)(A) of PACE.

M was born on 16 August 1988. The respondent authority (the Council”) has never had parental responsibility for her. At one time, she lived with her mother in Gateshead. Then at the request of her mother, she was voluntarily accommodated by the Council for periods during 2004 until her 16^th birthday when, as she was entitled to do, she discharged herself from council accommodation and began to live independently. She was living at the TZ Hostel in Sunderland when, on the night of 10/11 November 2004, she was arrested for alleged wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and detained at Gillbridge Avenue Police Station, Sunderland. A social worker employed by Sunderland Youth Offending Team (Sunderland Social Services), David Cabe, was called by the police to act as the appellant’s appropriate adult for the purposes of the interviews that were to take place. At 19.30 hrs on 11 November, Mr Cabe made a telephone call from the police station to the Council’s Emergency Duty Team to seek assistance in finding an address to which M could be bailed. He spoke to Kenneth Daglish, a social worker who had already been told by the TZ Hostel that M’s placement in that hostel had been terminated.

M was charged with the offence of wounding with intent at 23.40 hrs on 11 November. Having received no communication from the police or Mr Cabe, at 00.20 hrs on 12 November, Mr Daglish telephoned the police station to inform the police and/or Mr Cabe that the Council was able to provide a bail address if necessary. It was during this conversation that Police Sergeant Smart of Northumbria Police enquired whether the Council could provide secure accommodation until M was produced before the Sunderland magistrates at 10.00 hrs later that morning. At para 6 of his witness statement, Mr Daglish says that he told Police that:

“Taking the nature and timing of the request into account, I did not consider that Gateshead could reasonably arrange secure accommodation for [M] for the duration required, even if deemed appropriate and advised Sergeant accordingly. Sergeant Smart did not enquire about the possibility of a non-secure “PACE” bed provided by the local authority, presumably taking into account the seriousness of events and the need for protection of the public. If requested by the police, it is probable that this could have been provided in the form of a placement in a foster or children’s home.”

Since he was of the view that nothing less than secure accommodation would suffice, Police Sergeant Smart certified in writing pursuant to section 38(6) of PACE that he had been informed by Mr Dalglish that:

“no secure accommodation is available to protect persons from serious harm from [M]. No other accommodation is secure enough for this purpose. Her detention is necessary to prevent interference with witnesses/investigation, to prevent further offending and ensure she surrenders to custody. Enquiries are still ongoing and the identity of the complainant and witnesses are known to [M]. The offence is serious and a custodial sentence is likely if convicted. The strength of the evidence is substantial and [M] is now of no fixed abode having [been] evicted from her accommodation.”

In consequence, M was detained overnight at the police station before being produced at court on the morning of 12 November.

On 9 December, M’s solicitors wrote to the Council asking why no secure accommodation was available. In their reply the following day, the Council said that they did not have any secure units. They said that they could access secure accommodation in other parts of the country, but a full assessment would have been required before they were satisfied that the criteria of section 25 of the Children Act were met. M’s solicitors wrote again on 28 January 2004 saying that they had learnt that there were two secure units for children in Morpeth and Newton Aycliffe. They asked whether Mr Daglish had attempted to make contact with these establishments in an attempt to secure accommodation for M there. They also asked whether Mr Daglish had contacted the Youth Justice Board Placements Team to find out whether any secure accommodation was available.

The Council replied on 4 February. They said that Mr Daglish did not contact either of the two secure units mentioned “for the simple reason that neither will accept young people detained under [PACE]”. Nor had he contacted the Youth Justice Board Placements Department “as the next nearest secure unit which accepts girls is Hull and had that unit agreed to accommodate your client, you will appreciate that it would have been totally impracticable to transport her to the unit and return her for 10 am the following morning.”

As explained by Frances Powell, Head of Service, Children and Families, for the Council:

“11.

Gateshead Council does not have any secure children’s homes. The Authority, without a change in national funding, does not and will never have the resources to be able to build/adapt and staff a secure unit. This is the situation for the vast majority of local authorities within the United Kingdom. No other local authority within the North East of England has its own secure unit. Although I have no personal knowledge of the situation I know from the statement of Mr Tim Bateman that there is only one local authority within London that has its own secure beds, the only other having closed in 2004.

12.

Gateshead, in satisfying its statutory responsibility to place children in secure accommodation on a welfare or youth justice basis, has to purchase beds in privately managed secure units. The nearest regional facilities are Kyloe House in Northumberland and Aycliffe Young People’s Unit in County Durham. If neither of these units is willing or able to offer a bed, the authority approaches other units in Yorkshire or nationally by making a request through the Youth Justice Board who operate a form of clearing on a national basis.

13.

Unfortunately neither Kyloe House nor Aycliffe Young People’s Unit are currently licensed by the Commission for Social Care Inspection to provide secure beds pursuant to PACE. When Kyloe opened it did have available one bed for PACE. However when inspected in 1999 I am informed that the inspectors held that it was not appropriate for its use as a PACE bed. Following consultations with Aycliffe and the Youth Justice Board, Aycliffe is reviewing its policy on PACE beds and it is hoped that it will seek a licence to provide PACE beds. However, even if this occurs there can be no guarantee that on any particular evening a bed will be available given the chronic national shortage of secure beds; it would be unlikely that a bed that was otherwise required would be left unoccupied in case a PACE bed was required.

14.

Gateshead Council takes very seriously its obligations to accommodate children under Section 38(6) of PACE. Within its borough the authority works closely with local police stations to try to ensure that suitable accommodation will be provided which will both meet the needs of the young person and protect the public. There are a small number of foster carers who can take remand placements and also the Council is able to commission remand placements from an independent fostering agency.

15.

In reality in Gateshead it is rare that the police seek to assert that the accommodation offered by the authority is not adequate to protect the public from serious harm. Out of 217 PACE interviews attended by Gateshead EDT during the last 12 months, in only 5 cases (2%) did the police request a secure PACE bed as an alternative to other accommodation. Whatever the national statistics or even the situation in adjoining local authorities, these figures emphasise the level of co-operation with the police and level of service provided to young people within the borough of Gateshead. The figures also illustrate that in reality it would not be proportional for the authority to have to provide and maintain a secure bed for the rare occasion it would be required.

16.

Given the current resources available in the North East of England, when required there may be occasions when it is impractical for young people to be transported to secure units outside of the area. This, of course is particularly the case when the request is not made until late at night and the young person is required to be produced at a local court first thing in the morning. If a request is made early evening or during the day on a Saturday or Sunday the situation may be different and each case has to be considered on its merits. In any event a placement is still subject to a bed being available and the unit being prepared to accept that particular young person for admission. The current situation and that which pertained in 2004 is that the nearest secure unit that is able to provide PACE beds for girls is located in Hull.”

Section 21 of the Children Act provides:

“(1)

Every local authority shall make provision for the reception and accommodation of children who are removed or kept away from home under Part V.

(2)

Every local authority shall receive, and provide accommodation for, children-

(a)

in police protection whom they are requested to receive under section 46(3)(f);

(b)

whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984;

(c)

who are-

(i)

on remand under paragraph 7(5) of Schedule 7 to the Powers of Criminal Courts (Sentencing) Act 2000 or section 23(1) of the Children and Young Persons Act 1969;

(ii)

the subject of a supervision order imposing a local authority residence requirement under paragraph 5 of Schedule 6 to that Act of 2000,

and with respect to whom they are the designated authority.

(3)

Where a child has been-

(a)

Removed under Part V; or

(b)

detained under section 38 of the Police and Criminal Evidence Act 1984,

and he is not being provided with accommodation by a local authority or in a hospital vested in the Secretary of State or a Primary Care Trust, or otherwise made available pursuant to arrangements made by a Health Authority or a Primary Care Trust, any reasonable expenses of accommodating him shall be recoverable from the local authority in whose area he is ordinarily resident.”

Section 38(6) of PACE provides:

“Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies-

(a)

that, by reason of such circumstances as are specified in the certificate, it is impracticable for him to do so; or

(b)

in the case of an arrested juvenile who has attained the age of 12 years, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him,

secure that the arrested juvenile is moved to local authority accommodation.”

Section 38(6A) defines “local authority accommodation” as “accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989)” and (as I have already stated) “secure accommodation” as “accommodation provided for the purpose of restricting liberty”.

On 10 February 2005, M started judicial review proceedings. The decision she sought to challenge was the failure of the Council on 12 November 2004 to provide her with secure accommodation when requested by the police to do so. It was said that this was a breach of the duty imposed by section 21(2)(b) of the Children Act. In its acknowledgement of service, the Council set out in some detail its reasons for contesting the claim. The application for permission to apply for judicial review was refused on the papers by Hodge J. He said that the application was academic and that M had no real interest in the issue sought to be litigated (because her detention in police custody had long since come to an end). He added that he found the case argued by the Council against the existence of the alleged duty to be “compelling”.

The renewed application was heard by Calvert-Smith J. He refused permission on the grounds that the application was “wholly academic”. But he also said that he “would not want to say that it was unarguable at some future date to say that the accommodation should actually include secure accommodation”.

The appellant sought permission to appeal. Wall LJ granted permission pursuant to CPR 52.15(3) and directed that the case should proceed in the Court of Appeal pursuant to CPR 52.15(3) as an application for judicial review. He said that the application raised a point of some considerable public interest. It was not an academic point, since on that argument it would never be capable of being decided by the court.

The first issue is whether the section 21(2)(b) duty falls on any local authority which receives a request to receive and provide accommodation for a child, or only on a local authority which receives such a request in respect of a child who is within its area at the time of the request. The second issue concerns the question whether there is any duty under section 21(2)(b) on a local authority to provide secure accommodation if such accommodation is requested by a custody officer when discharging his or her duty under section 38(6) of PACE, and if so, what is the nature of that duty. The final issue is whether there was a breach of duty by the Council in this case.

It is submitted by Mr Cragg that the section 21(2)(b) duty is imposed on any local authority requested by a police custody officer to provide accommodation under section 38(6) of PACE, provided that the request is reasonable in the Wednesbury sense. On the facts of this case, he says that it was reasonable for Police Sergeant Smart to ask the Council to provide the accommodation, since M had been in its care until about 3 months before the date of her arrest. It was, therefore, reasonable to direct the request to the Council, rather than a different local authority.

Mr Kennerley submits that the duty is imposed on the local authority within whose area the police station where the child is detained is located. He says that it would be unworkable if the duty to provide accommodation were to be that of the authority for the area where the child is ordinarily resident, or if the police had an untrammelled right to choose the authority to which they may direct their request. He submits that his interpretation is consistent with section 21(3) (which provides that any reasonable expense of accommodating the child is recoverable from the local authority in whose area the child is ordinarily resident). Further, it makes practical sense and provides certainty for local authorities and police forces for such duty to lie with the authority within whose area the police station is located, since this enables local protocols and good practice to be established.

In my judgment, it is relevant to note that there are a number of provisions in the Children Act which impose a duty on a local authority in respect of children “within their area”. Section 17 imposes a general duty on every local authority “to safeguard and promote the welfare of children within their area”. Section 18 requires every local authority to provide day care “for children in need within their area”. Section 20 imposes a number of duties on every local authority “to provide accommodation for any child in need within their area”. These obligations are all placed on an authority to provide services for children who are within their area, and not for children within the area of the local authority where they are ordinarily resident, and the obligations are not placed on any other authority. The policy which underlies these provisions must be that the local authority for the area where the child is at the time when the request is made is best equipped to discharge these obligations.

The reasons why I would reject Mr Kennerley’s submissions are as follows. First, it is striking that the duties in sections 17, 18 and 20 are all owed by local authorities to children “within their area”, but that this qualifying phrase is absent from section 21. It would be surprising if this omission were not deliberate.

Secondly, the reference in section 21(2)(c) to “the designated authority” is of significance. The duty in section 21(2)(c) is to receive and provide accommodation for children who are on remand under para 7(5) of Schedule 7 to the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) or section 23(1) of the Children and Young Persons Act 1969 (“the 1969 Act”), or who are the subject of a supervision order imposing a local authority residence requirement under para 5 of Schedule 6 to the 2000 Act “and with respect to whom they are the designated authority”. Each of the provisions mentioned in section 21(2)(c) gives the court the power to remand a child to local authority accommodation of a designated authority.

Thirdly, section 46(3)(f) of the Children Act provides that, where a police constable takes a child into police protection by being removed to accommodation which is not provided by or on behalf of a local authority or as a refuge in compliance with the requirements of section 51, he or she shall as soon as is reasonably practicable secure that the child is moved to accommodation which is so provided. Section 46(3)(f) does not specify from which authority the constable must secure such accommodation.

This is a detailed and most carefully worked out statutory scheme. In my view, Parliament has deliberately made different arrangements as to which local authority has the duty to provide accommodation in different circumstances. It has decided that the duty to provide accommodation where any of the criteria specified in section 20(1) are satisfied falls on the authority for the area in which the children are at the time when the need for accommodation arises. For children who are subject to orders for remand made under the 1969 Act or the 2000 Act, the duty falls on the authority designated by the court to provide the accommodation. For children who are the subject of police requests under section 46(3)(f) of the Children Act or section 38(6) of PACE, Parliament has identified the local authority that is subject to the duty as the local authority that is the recipient of a request to receive and provide accommodation.

Section 21(1)(a) mirrors section 46(3)(f) in this respect, since section 46(3)(f) does not identify the local authority from which the police constable shall secure accommodation: it is left to the constable to choose the authority from which to request the provision of accommodation. Similarly, section 21(2)(b) mirrors section 38(6) of PACE, since section 38(6) does not specify the local authority from which the custody officer shall secure accommodation: the duty is simply to secure that the arrested juvenile is moved to “local authority accommodation”, which is defined in section 38(6A) as accommodation provided by or on behalf of a local authority”.

In my view, the language of section 21(2)(b) is clear. The words can and should be given their plain and ordinary meaning. On Mr Kennerely’s interpretation, one has to read into section 21(2)(a) and (b) the words “within their area” after “children”. This could only be done by necessary implication. In my judgment, there is no warrant for this. The fact that Parliament has defined the duty of a local authority in section 17, 18 and 20 by reference to children within their area, but not done so in section 21, seems to me to be fatal to any such necessary implication. The express reference to “the designated authority” in section 21(2)(c) is a further reason why it is not permissible to add words to qualify the section 21(2)(b) duty.

In my view, therefore, the language of section 21(2)(b) compels the conclusion that the duty to provide accommodation in response to the custody officer’s request falls on the authority which receives the request. At one stage, I thought that this might have been an unreasonable interpretation, and therefore one which Parliament was not likely to have intended. But on further reflection, it seems to me that Parliament might well have wished to give the police some flexibility in their choice of local authority from which to request accommodation, when discharging their duties whether under section 46(3)(f) of the Children Act or section 38(6) of PACE.

The local authority for the area in which the police station is located may not be the most suitable authority to provide accommodation under section 21(2)(a) or (b). Suppose that a child is living in a hostel provided by local authority A and that she goes across the border to a pub which is situated in local authority B, where she commits and is arrested for a serious criminal offence. She is taken to a police station in the area of local authority B. Suppose further that the custody officer does not consider that this is a case for secure accommodation and is content that she be accommodated in local authority A’s hostel overnight, pending her appearance in court the following morning. In such circumstances, the custody officer would almost certainly take the view that local authority A was the most suitable authority from which to seek to secure accommodation under section 38(6). It is difficult to see why Parliament should have intended that the custody officer should not be permitted to request accommodation from local authority A in such a situation, but that is the effect of Mr Kennerley’s interpretation. Or suppose that the authority for the area in which the police station lies cannot provide suitable accommodation, but a neighbouring authority can. That would be particularly important if secure accommodation were required (although no doubt authorities have reciprocal arrangements). There could also be other factors to consider, such as preventing the child from having contact with particular persons. The unqualified language of s.38(6) is apt to give the police a wide discretion in deciding which authority to approach. Although one would expect the police to approach the local authority for their own area first, I can on reflection see no reason for construing s.38(6) as requiring them to do so, much less as requiring them to secure the child’s removal to local authority accommodation in that area. In some cases they might think it sensible to ask around before making any formal request under s.21(2)(b). It is true that, on a literal interpretation of section 38(6) of PACE and section 21(2)(b) of the Children Act, there is the theoretical possibility that a custody officer who is detaining a child in a police station in Newcastle could take leave of his senses and seek to secure overnight accommodation in Bristol. But the existence of such a possibility is not a sufficient reason for introducing into section 38(6) and section 21(2)(b) a qualification which the words of the sections do not admit.

Although he did not formally abandon his submission that section 21(2)(b) imposes an absolute obligation to provide secure accommodation when requested to do so by the police pursuant to section 38(6) of PACE, Mr Cragg’s primary submission is that the local authority’s duty is to use its best or reasonable endeavours to provide such accommodation. He submits that, on a proper analysis of the evidence, the Council’ s case is that it has no duty at all to provide secure accommodation in response to a request under section 38(6). That, he contends, is unlawful. Mr Cragg submits that section 21(2)(b) of the Children Act, when read with section 38(6) of PACE, is intended to provide a framework whereby children are not held at police stations unless that is unavoidable. He referred to R v Chief Constable of Cambridgeshire, ex p M [1991] 2 QB 499. That was a decision in relation to an earlier version of section 38(6) of PACE which provided that where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1), he shall “unless he certifies that it is impracticable to do so, make arrangements for the arrested person to be taken into the care of a local authority and detained by the authority...” Nevertheless, Mr Cragg submits that certain observations of Watkins LJ are equally applicable to the current version of section 38(6). At page 504C, he said: “There are, obviously, sound reasons why such detention of a juvenile should, if possible, be avoided.” At page 506F, he said:

“In our judgment, the wording of section 38(6) is clear. The custody officer who has made the decision to detain the juvenile must do everything practicable to see that the place of detention for that juvenile is in local authority accommodation and not at the police station. This is so whether or not the juvenile in question was previously in the care of the local authority. The local authority is equally obliged to do what it can to provide accommodation which will enable the juvenile to be accommodated outside to police station.”

Mr Cragg further submits that the duty to receive and provide accommodation for children must include a duty to provide secure accommodation where that is requested by the police. Secure accommodation is no more than a “subset” of accommodation. If in practice a local authority has no such accommodation and has no access to such accommodation locally (whether from another local authority or from the private sector), then it is in breach of section 21(2)(b) when it is unable to respond to a request by the police for secure accommodation.

When asked how he derived a duty to use best or reasonable endeavours to provide accommodation from the language of section 21(2)(b), Mr Cragg drew our attention to the decision of this court in R(K)v Camden and Islington Health Authority [2001] EWCA Civ 240, [2002] QB 198. K’s case was concerned with an alleged breach of the duty in section 117(2) of the Mental Health Act 1983 “to provide… after-care services for any person to whom this section applies …..”. The after-care services in that case were those specified by the Mental Health Review Tribunal. They included a duty to provide psychiatric supervision in the community. The authority were unable to find a forensic psychiatrist willing to supervise the applicant in the community. It was held by Burton J (whose decision was upheld on appeal) that there was no breach of duty. He adopted the reasoning in R v Ealing District Health Authority, ex p Fox [1993] 1 WLR 373 and R v Mental Health Review Tribunal, ex p Hall [2000] 1 WLR 1323 that it will be a breach of the section 117(2) duty if the authority has “failed to seek to make practical arrangements for aftercare” or failed to attempt with all reasonable expedition and diligence to make such arrangements: see para 21 of Burton J’s judgment. At para 30 of his judgment, Lord Phillips of Worth Matravers MR said:

“Putting on one side the question of compliance with article 5 of the Convention, I can see no justification for interpreting section 117 so as to impose on health authorities an absolute obligation to satisfy any conditions that a tribunal may specify as prerequisites to the discharge of a patient. The section does not expressly impose any such requirement, nor is it reasonable to imply such a requirement. The applicant’s suggested interpretation would place upon health authorities a duty which, on occasion, would be impossible to perform. The applicant’s skeleton argument suggested that there was more that the health authority could have done to persuade a forensic psychiatrist to provide the aftercare required by the tribunal. The decision of the judge was to the contrary, and there is no basis upon which that decision can be challenged. An interpretation of section 117 which imposed on health authorities absolute duties which they would not necessarily be able to perform would be manifestly unreasonable.”

As I understand it, the proposition that Mr Cragg would seek to derive from this decision is that a statutory duty which it may be impossible to perform for reasons outside an authority’s control should not be construed as being an absolute duty. Parliament cannot have intended to impose such an unreasonable obligation on an authority. In such a case, an apparently absolute duty should be construed as being no more than a duty to use best or reasonable endeavours to discharge the obligation.

On behalf of the Council, Mr Kennerley submits that section 21 (like section 20) imposes an absolute duty on a local authority, but it is a duty limited to the provision of non-secure accommodation. Section 21 has nothing to do with secure accommodation. Secure accommodation is dealt with in section 25 which is intended to provide what Mr Kennerley describes as “an encompassing overriding framework in respect of the use of accommodation for restricting liberty.” In so far as there is an obligation to provide secure accommodation, he submits that it is to be found in section 17 as part of the general duty of every local authority to “safeguard and promote the welfare of children within their area….by providing a range and level of services appropriate to those children’s needs”. This is a general duty as to which the local authority has some discretion and is to be contrasted with more specific and precise duties such as those contained in sections 20 and 21. Mr Kennerley drew our attention to the speech of Lord Nicholls of Birkenhead in R(G)v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208, para 13:

“…..As a general proposition, the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area. In such cases the local authority may have a wide measure of freedom over what steps to take in pursuance of its duty.”

I find it helpful to start with section 20. Section 20(1) provides:

“(1)

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –

(a)

there being no person who has parental responsibility for him;

(b)

his being lost or having been abandoned; or

(c)

the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”

It is common ground that this imposes on every local authority an absolute duty to provide accommodation for any child in need where one of the specified circumstances exists. It is a precise and specific duty. There is no scope for discretion as to whether or not to provide accommodation at all. Thus where it appears to the local authority that there is a child in need, for example, as a result of there being no person who has parental responsibility, the local authority has an absolute obligation to provide some accommodation for that child. Section 20 says nothing about the type of accommodation that must be provided: that is left to the discretion of the local authority. But the exercise of that discretion is subject to at least one important restriction. A child who is being looked after by a local authority may not be placed or kept in secure accommodation (as defined in section 25) unless it appears to the authority that the conditions in section 25(1)(a) or (b) are satisfied. These are “(a) that (i) he has a history of absconding and is likely to abscond from any 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.”

In relation to children who “are being looked after by a local authority and are….(a) children detained under section 38(6) of [PACE]” (see regulation 6 of the Children (Secure Accommodation) Regulations 1991), section 25(1) of the Children Act provides:

“(1)

Subject to the following provisions of this section, a child who is being looked after by a local authority 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)

the child is likely to abscond from such other accommodation, or

(b)

the child is likely to injure himself or other people if he is kept in any such other accommodation.”

In other words, the section 20(1) duty is to provide accommodation which, subject to section 25, may be secure accommodation. I do not accept the submission of Mr Kennerley that secure accommodation is outside the scope of section 20. Secure accommodation is a type of accommodation. The purpose of section 25 is not to create a separate duty in relation to the provision of secure accommodation. It is to restrict the manner in which a local authority may discharge its duty to provide accommodation.

Section 21(1) requires every local authority to make provision for the reception and accommodation of children who are removed or kept away from home under Part V. Part V contains elaborate provisions for the protection of children by means inter alia of emergency protection orders in respect of children who are likely to suffer significant harm if not removed from their homes (section 44) and recovery orders in respect of abducted children (section 50). In my view, what I have just said in relation to section 20 applies with equal force to section 21(1). There is an absolute duty to make provision for the reception and accommodation of children who are removed or kept away from home under Part V, but the local authority has a discretion as to the type of accommodation that it will provide and, in particular, subject to section 25, as to whether to provide secure accommodation.

Section 21(2)(a) imposes a duty on local authorities to receive and provide accommodation for children in police protection whom they are requested to receive under section 46(3)(f). In my view, section 21(2)(a) too imposes an absolute duty on the local authority to provide accommodation, and, in discharging that obligation, it has a discretion, subject to section 25, whether or not to provide secure accommodation.

Against that background, it would be surprising if Parliament had intended by section 21(2)(b) to impose an absolute obligation on a local authority to provide secure accommodation if requested to do so under section 38(6) of PACE. It is, however, necessary to examine the wording of section 21(2)(b) in conjunction with that of section 38(6) to see what obligation is imposed by section 21(2)(b).

It is clear that section 21(2)(b) imposes a duty to receive and provide accommodation for children whom they are requested to receive under section 38(6). Section 21(2)(b) says no more about the type of accommodation that is to be provided than do sections 20, 21(1), 21(2)(a) or, indeed, 21(2)(c). Does the reference to section 38(6) require one to interpret section 21(2)(b) as imposing by necessary implication a duty to provide secure accommodation where such accommodation is requested by a custody officer? Such necessary implication could only arise from the fact that, if secure accommodation is not provided when requested by the custody officer, the officer may issue a certificate under section 38(6) which will have the effect of keeping the child in police detention. The argument would be that, it cannot have been the intention of Parliament that, by not providing secure accommodation when requested to do so by a custody officer, a local authority should cause children to be detained in police cells.

In my judgment, no such duty arises by necessary implication from section 38(6) of PACE. It is to be noted that the only obligation on the custody officer under section 38(6) is to “secure [ie by request] that the arrested juvenile is moved to local authority accommodation”. There is no obligation to secure, or use best endeavours to secure accommodation that is secure in those cases where the custody officer is of the opinion that keeping the juvenile in non-secure accommodation “would not be adequate to protect the public from serious harm from him”. Section 38(6) is structured differently. It exempts the custody officer from the duty to secure accommodation where he or she certifies that no secure accommodation is available and that secure accommodation is necessary in order to protect the public from serious harm. The section, therefore, expressly contemplates that the custody officer may not be able to secure accommodation that is secure. That is not at all surprising. Parliament must be taken to have been aware of the fact that local authorities have limited resources and that a decision to place a child in secure accommodation should not be taken lightly. As was said in at para 8.5 of Volume 4 (“Residential Care”) of the “Children Act Guidance and Regulations” issued by the Department of Health in 1991, secure accommodation has an important role to play amongst the range of residential services and facilities provided by local authorities, but:

“…..restricting the liberty of children is a serious step which must be taken only when there is no appropriate alternative. It must be a ‘last resort’ in the sense that all else must first have been comprehensively considered and rejected – never because no other placement was available at the relevant time, because of inadequacies in staffing, because the child is simply being a nuisance or runs away from his accommodation and is not likely to suffer significant harm in doing so, and never as a form of punishment. It is important, in considering the possibility of a secure placement, that there is a clear view of the aims and objectives of such a placement and that those providing the accommodation can fully meet those aims and objectives. Secure placements, once made, should be only for so long as is necessary and unavoidable.”

Ms Powell points out in her witness statement, that requests for secure beds under section 38(6) of PACE are comparatively rare.

In these circumstances, I find it impossible to spell out of section 21(2)(b) an absolute duty to provide secure accommodation when it is requested. The absolute duty is to provide accommodation. This corresponds with the custody officer’s duty under section 38(6) to secure accommodation (not accommodation that is secure).

That is not to say that, when it receives a request for secure accommodation under section 38(6), a local authority may simply ignore it. In my judgment, when performing its duty under section 21(2)(b), the local authority has a discretionary power to provide secure accommodation where that is requested. It is trite law that discretionary statutory powers must be exercised to promote the policy and objects of the statute: see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, 1030C. The broad policy and objects of Part III of the Children Act are that local authorities should provide support for children and families. More particularly, the object of section 21(2)(b) when read with section 38(6) is, as Watkins LJ said in M’s case, that children should not be detained in police cells if that is at all possible. In a compelling statement dated 7 March 2005, Tim Bateman of NACRO, who has experience of acting as an appropriate adult, says that in his opinion:

“….in order to ensure that due regard is given to the safeguarding and welfare of such young people, it is imperative that they should spend as little time in police custody as the proper process of the criminal case allows. In particular, it is always preferable that a young person should not, other than in exceptional circumstances, be held at a police station overnight.”

In my judgment, therefore, it is incumbent on all local authorities to have in place a reasonable system to enable them to respond to requests under section 38(6) for secure accommodation. But section 21(2)(b) of the Children Act does not impose an absolute duty on a local authority to provide secure accommodation whenever it is requested by a custody officer under section 38(6) of PACE. Having regard to (i) the urgency with which such requests will usually have to be dealt with (well illustrated by the facts of the present case); (ii) the comparative rarity of such requests; and (iii) the resource implications of maintaining a stock of such accommodation, it would be manifestly unreasonable to impose such a duty on local authorities. I do not believe that the language of section 21(2)(b) when read with section 38(6) compels such an unreasonable interpretation. I derive further support for my conclusion from the fact that section 38(6) shows that Parliament expressly contemplated that there might be circumstances where secure accommodation would not be available.

Before leaving section 21(2)(b), I need to deal with Mr Cragg’s submission that the way to avoid such an unreasonable interpretation is to construe the statute as imposing on the local authority no more than a duty to use its best or reasonable endeavours to provide secure accommodation when requested to do so by a custody officer. I would reject this submission for the following reasons. First, as I have already said, the language of section 21(2)(b) clearly refers to accommodation, not secure accommodation. Secondly, I can see no reason for construing the duty in section 21(2)(a) as being a duty to use best or reasonable endeavours to discharge that obligation. Section 21(2)(a) and (b) are expressed to be the subject to the same duty, namely to “receive and provide accommodation”. In these circumstances, it is difficult to see how the nature of the duty in section 21(2)(b) differs from that in section 21(2)(a).

For the reasons that I have given earlier, therefore, section 21(2)(b) can and should be construed as creating an absolute duty to provide accommodation. Subject to section 25, local authorities have a discretion to provide secure accommodation which may be exercised generally and which should be exercised when they receive requests for secure accommodation under section 38(6) of PACE in so far as it is practicable for them to do so to further the policy objective of preventing children from being detained in police cells.

I have already set out what Frances Powell says about the arrangements that the Council has in place for the provision of secure PACE accommodation. In summary, like most local authorities, the Council does not have any secure units of its own. It procures secure accommodation “on a welfare and youth justice basis” from privately managed units, but these are not currently licensed to provide secure PACE accommodation. The nearest secure unit that is able to provide PACE accommodation for girls is in Hull, which is approximately 110 miles and at least 2 hours’ drive away from Gateshead. As Ms Powell explains, there are some occasions when, subject to availability of beds, it is practicable for the Council to accommodate girls in Hull. On other occasions, the request for accommodation is made so late that such accommodation, even if available, is not practicable.

In assessing the system that the Council has in place for dealing with requests by the police for secure accommodation under section 38(6), I consider that it is necessary to have regard to (i) the comparative rarity of requests for secure accommodation for girls under section 38(6), (ii) the resource implications of maintaining its own stock of secure PACE accommodation (as evidenced by the fact that most local authorities do not have their own secure units), and (iii) the fact that secure accommodation can be provided in Hull in certain circumstances.

Taking these factors into account, I consider that the Council’s system cannot be characterised as unlawful. It is a matter for the discretion of the Council to decide what system to introduce to deal with requests for secure accommodation by the police under section 38(6). It is wholly unrealistic to expect local authorities to be able to guarantee that they will provide secure accommodation for children whenever a request is received from the police for such accommodation. It is a matter for the judgment of the local authority, taking full account of the need to avoid having children detained in police cells if at all possible, to decide what arrangements to make to provide secure accommodation when it is requested by the police. The court should be slow to strike down as unlawful arrangements that have been made by local authorities. In my view, they should do so only if satisfied that an authority has made no arrangements at all, so that they can never provide secure accommodation when it is requested, or where the arrangements that have been made are ones that could not have been made by a reasonable authority, mindful of the need to avoid having children detained in police cells if at all possible.

In my view, the evidence of Ms Powell shows that the Council takes its duties seriously and that it has in place arrangements which cannot be said to be unreasonable in all the circumstances. In an ideal world, it would have access to accommodation closer than in Hull. But there will be situations when girls can be accommodated by the Council in Hull. In the present case, the request for secure accommodation was made by Police Sergeant Smart at 00.20 hrs on 12 November on the basis that M would have to be produced at court at 10.00 hrs the same day. It was wholly impracticable in those circumstances to consider providing accommodation at Hull, even if any were available at that time. It might have been difficult to find secure accommodation for M at that time of the night, even if such accommodation were closer at hand.

In my view, therefore, the Council was not in breach of duty in failing to provide secure accommodation for M on 12 November 2004. I would dismiss this application for judicial review. It was right that the important points of law raised by the first two issues should be decided by the court. But I do not consider that it is necessary to grant any declaratory relief to reflect this decision.

I agree.

I have had the advantage of reading in draft the judgment of my lord Dyson LJ. I agree his conclusion and reasoning. In particular I adopt his erudite analysis and construction of the relevant statutory provisions.

However I would be perhaps more robust in expressing my views on the merits of this application. Gateshead Council can justly consider themselves unfortunate and undeserving respondents to this thoroughly unmeritorious application: still more unfortunate in finding themselves respondents in the Court of Appeal essentially to enable the court to express a judgment on the interaction of the relevant statutory provisions.

Beneath the level of the legal argument, Mr Kennerley explained that there are three classes of secure accommodation placements: welfare placements, justice placements and PACE placements. For welfare and justice placements Gateshead Council has access to local facilities in Northumberland and Durham. In particular Kyloe House in Northumberland had been able to offer both justice and PACE places until, following an inspection, the PACE designation was withdrawn. The result was that the Hull institution became the nearest provider of PACE places, (why a PACE placement requires something more than or different to a justice placement was unexplained). Thus unless the PACE request were received on a Saturday or a Sunday prior to a bank holiday the length of the return journey effectively precludes Gateshead’s use of Hull.

The policy of ensuring that young persons are not held in police stations when other accommodation could be made available is obviously laudable. However where that other accommodation must in the circumstances of the case be secure, the distinction between a night in the police station and a night in secure accommodation is not so stark, since both involve a deprivation of liberty.

In my judgment the evidence marshalled by Gateshead in response to this application demonstrates both that their officers behaved with conspicuous responsibility and also that the policies and systems which the council had put in place fully complied with their statutory obligations