High Court finds council acted in breach of its duties to unaccompanied children

The High Court has found that Kent County Council acted in breach of its Children Act 1989 duties by failing to accommodate and look after all unaccompanied children seeking asylum when notified of their arrival.

The High Court has also found the Secretary of State for the Home Department to have acted unlawfully in routinely and systematically accommodating newly arrived unaccompanied children in hotels, denying them the protection of a local authority corporate parent.

The findings, set out in a judgment handed down today by Mr. Justice Chamberlain, followed an application for judicial review by anti-trafficking charity ECPAT UK.

ECPAT UK says the judgement confirms its repeated belief that the practice of housing unaccompanied children who arrive in the UK outside any statutory child protection safeguards is unlawful and cannot be described as an emergency response two years on.

“This judgement powerfully reaffirms the primacy of the Children Act 1989 and our child welfare statutory framework which does not allow for children to treated differently because of their immigration status,” Patricia Durr, CEO of ECPAT UK said. “It remains a child protection scandal that so many of the most vulnerable children remain missing at risk of significant harm as a consequence of these unlawful actions by the Secretary of State and Kent County Council.”

“Despite the recent passing of the Illegal Migration Act 2023, which will deny unaccompanied children the right to claim asylum, amongst other hugely damaging provisions, this judgement serves as a clear and timely reminder that neither central nor local government departments can depart from the statutory child welfare framework and the duties towards all children under The Children Act 1989.”

Mr Justice Chamberlain reasserted the importance of duties owed by local authorities to all children who require looking after, irrespective of their immigration status, in his judgment, emphasising that “ensuring the safety and welfare of children with no adult to look after them is among the most fundamental duties of any civilised state. In the United Kingdom, this duty is imposed on local authorities.”

In so finding, the judge unequivocally restated the legal obligations that local authorities owe to children housed in hotels in their areas, including the obligation to take all necessary steps to safeguard their welfare and safety by exercising their duties under Part 3 of The Children Act 1989, to assess their needs and to provide them with suitable accommodation and other support and protection measures.

The collective and individual failures committed by Kent County Council and the Secretary of State resulted in hundreds of children going missing and many trafficked for criminal exploitation.

Ali Sallaway and Chris Pugh, leading the Freshfields Bruckhaus Deringer LLP team, which represented ECPAT UK in bringing the case, said the onus is now on the Home Office and Kent County Council to put in place a system ‘at speed’ to ensure that their respective legal obligations towards UASC children are now met going forwards.