Legal challenge launched against Kent County Council and the Home Office

A leading children's rights charity is launching a legal challenge to the Home Office and Kent County Council who have been placing unaccompanied children in hotels.

ECPAT UK (Every Child Protected Against Trafficking) is launching the challenge following a ruling from the family court which states that that unaccompanied children are the responsibility of local authorities.

Handing down the ruling, senior family court judge, Mrs Justice Lieven, said that unaccompanied children housed in Home Office-run hotels are likely to be children in need and are therefore entitled to the full protection of the Children Act 1989.

It is expected that the ruling means any failure by a local authority to meet their duties towards unaccompanied children whom the Home Office has decided to house outside the care system will expose them to judicial review.

Since July 2021, the Home Office has been housing unaccompanied children in hotels after the Department for Education gave its approval for an emergency measure due to the number arriving in small boats.

As of January 2023, more than 4,600 children had been put into these Home Office-run hotels. Media reports alleged that children had gone missing on more than 440 occasions, as well as concerns children had been emotionally abused by hotel staff. ECPAT UK estimates that more than 150 children remain missing and that, of those known to have gone missing, some were subjected to human trafficking.

The case was brought after Brighton and Hove Safeguarding Children Partnership published a report which said that the status of unaccompanied asylum-seeking children remains “in limbo”.

“[Unaccompanied asylum-seeking children] do not have looked after children or child in need status with the Local Authority and the Home Office has no statutory responsibility for their care. This creates a significant statutory gap in provision and leaves the child with no corporate parent,” the report said.

Children’s rights charities argued this highlighted a ‘lacuna’ or gap in provision since individual missing children have no corporate parent responsible for their safety and welfare.

The judgment from the family court now confirms that unaccompanied asylum-seeking children (UASC) have the same right to protection under the Children Act 1989 as other children who are without parents and carers. It also states that the Home Office housing children in hotels does not diminish the legal responsibilities and duties of local authorities.

“The [Children Act 1989] sets out a comprehensive scheme for the protection of children in need in a local authority area,” the judgement read.

“The provisions that I have set out above show the breadth of that statutory scheme. If the children were present in Brighton and Hove and met the statutory criteria then they would be the responsibility of a local authority, in all probability Brighton and Hove.”

Carolyne Willow, Director of Article 39 which brought the case, said the judgement brought “vital clarity to a wholly unacceptable situation where extremely vulnerable children have been treated as being in ‘legal limbo’, outside the protection of the Children Act 1989.”

“As conceded by government itself during these proceedings, the court has affirmed that it is the legal responsibility of local authorities to ensure children’s safety and security, and to look after children when this is required.

“The Home Office has no power to house children outside the care system, and government should be properly funding and supporting local authorities to meet their comprehensive duties.”

Responding to the ruling, a Government spokesperson said it agreed that a local authority is the right body to provide support to an unaccompanied child and that it encourages all local authorities to care for children entering the UK.

“The wellbeing of children and minors in our care is an absolute priority,” the spokesperson said, pointing to “24/7 security at every hotel used to accommodate UASCs”. They added that the Home Office follows the MARS (Missing After Reasonable Steps) protocol, which is widely used across children’s homes and supported accommodation for minors, to help support safeguarding planning and prevention.

As a result of the judgement, ECPAT UK is launching a legal challenge asserting that there is no legal basis for Kent County Council to derogate from their obligations to children in need and that the Home Office has no authority to place them in hotels.

Furthermore, the charity alleges that there since September 2021 there has been a secret agreement in place between Kent County Council, the Department for Education and the Home Office which sanctions the abdication of responsibility by Kent County Council to perform their mandatory duties to unaccompanied children.

Patricia Durr, CEO of ECPAT UK said the charity has been left with no choice but to bring legal action.

“This is a national child protection scandal that we cannot allow to continue.

“Children have been harmed, children are missing, and children have been exploited.

“It is the shocking but inevitable consequence of Kent County Council abdicating their obligations with the sanction of the Home Office, which itself is operating outside of the law. It is clear the Home Office has no authority, power, or expertise to accommodate vulnerable children.”

When asked for comment on the latest legal action, a Home Office spokesperson reiterated its response to last week’s family court ruling.

Kent County Council did not respond to a request for comment.