SECURE ACCOMMODATION: Birmingham City Council v M [2008] EWHC 1085 (Fam)

03 JUN 2008

(Family Division; McFarlane J; 3 June 2008)

It was not possible to make a free standing application for an interim secure accommodation order; the power to make an interim order under Children Act 1989, s 25(5), arose only if the court adjourned the hearing of the local authority's application. Accordingly, the preliminary procedural question for the court on any application for a secure accommodation order was whether to proceed to determine the application or whether to adjourn it. If the court were satisfied that it had all the information needed to determine the issues raised by the application and that it would be procedurally fair to proceed, then it was likely that there would be no grounds upon which the court could properly adjourn the substantive application. As a matter of principle, if the court decided to adjourn the application the period of adjournment should be the minimum necessary to ensure that the factors justifying an adjournment were addressed. The function and role of the children's guardian within secure accommodation proceedings was to provide assistance to the court with the issues raised by the application, not to oversee the exercise by the local authority of its statutory duties, nor to perform some free-standing welfare role for the benefit of the child. Accordingly, it was not a proper use of the court's power to prolong secure accommodation proceedings simply in order to keep a child's guardian involved for the purposes of assisting the child or overseeing the performance of the local authority's statutory duties.

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