Secure accommodation order – right to liberty – European Convention on Human Rights
A secure accommodation order was not incompatible with the right to liberty enshrined in the European Convention on Human Rights.
The purpose of section 25 Children Act 1989 was to restrict the liberty of the child. A secure accommodation order made under s25 was therefore a deprivation of liberty. It followed that a secure accommodation order would be incompatible with the right to liberty under article 5 of the European Convention on Human Rights unless such an order came within one of the exceptions in art 5(1).
A secure accommodation order fell within the exception in art 5(1)(d) which permits the detention of a minor by lawful order for the purpose of educational supervision. It was not necessary for s25 to refer to education since, by the provisions of the Education Act 1996, education was compulsory for any child under 16.
The concept of ‘educational supervision’ went well beyond academic lessons in the classroom. In theory, there might be circumstances in which a s25 order was made in respect of a child under the age of 18 where the words ‘for the purpose of educational supervision’ did not cover the facts of the particular case. However, that possibility did not render the section incompatible with art 5. A distinction had to be drawn between a complaint that a step taken by a local authority pursuant to a statutory power was in breach of an article of the convention, and a complaint that a statutory provision was itself incompatible with the article.