Council cannot refuse responsibility for asylum-seeking children, court rules

A High Court has issued its final ruling in the case brought on the use of hotels to accommodate unaccompanied children.

The judgment is the fourth ruling in a long legal battle, and emphasises that Kent County Council cannot derogate from its duties under the Children Act 1989 and that both the Home Office and Kent County Council should take all steps to ensure that the unlawful situation never arises again.

In this new decision, the court highlighted the use by the council of what it calls ‘section 11 notices’ to indicate that it can no longer safely accommodate children. Mr Justice Chamberlain, however, stated these notices have “no apparent statutory basis”, saying: “Section 11 of the Children Act 2004 does not attenuate or qualify the s. 20 duty. Rather, it imposes an obligation to make arrangements for ensuring that Kent CC’s ‘functions’ are discharged having regard to the need to safeguard and promote the welfare of children. ‘Functions’ here means Kent CC’s functions in respect of all UAS children. Nothing in s. 11 of the Children Act 2004 cuts down, or otherwise affects, what those functions are.”

Kent County Council said it welcomed the judgement as it highlighted their own challenge against the Government and the Home Office with regards to the National Transfer Scheme (NTS).

Roger Gough, Leader of Kent County Council, said: “Throughout the legal action, and to all stakeholders long before this, KCC accepted that it was struggling to comply with some of its duties under the Children’s Act 1989. KCC did not seek to excuse but instead lobbied the Home Office and Department for Education for many years for a solution to the failure of the National Transfer Scheme (NTS).”

“It remains Kent’s position that the [National Transfer Scheme] must be managed efficiently and effectively to transfer UAS children swiftly and safely to another UK local authority. This will ensure that these vulnerable children are looked after safely, that Kent’s Children’s Services are never unfairly overwhelmed again and stop the unequitable burden on Kent.

The use of hotels for unaccompanied children was found unlawful in a previous judgment handed down last Summer. A subsequent judgment found the Home Secretary’s decision-making in relation to the NTS ‘irrational’ because it failed to accept and take account of its responsibility in Kent CC’s failure to discharge its duties to take all unaccompanied children into care.

Following a previous order of the court for the Home Office and Kent CC to submit an Action Plan setting out what they will each do to ensure the situation does not arise again, the latest decision also addressed some remaining conflicts between the two defendants, in particular the action required of the Home Secretary when the final trigger point is reached in the Emergency Response Plan (itself, a feature of the Action Plan). In particular, the judge highlighted that personal engagement by Ministers may not be enough on its own and was encouraged to see reference to inclusion of additional urgent incentivised funding for Kent CC. The decision is clear that both parties will have to keep the plan under constant review because of their joint responsibility.

Regarding the plan to improve the NTS, the judge suggests some refinements could be made, however the specifics of the NTS are outside of the court’s competency for the purposes of granting relief, and therefore no additional order was made on these matters.

Mr Gough, Leader of Kent County Council, said that the latest ruling was positive as it highlighted the “skewed” way in which the Home Office measures the performance and success of the NTS.

“We have long argued that, under the rules of the NTS the ten-day timescale for a successful transfer should begin when a UAS Child is referred by KCC to the National Transfer scheme which takes place within a maximum of 48 hours of the child’s arrival. The Home Office, however, records the start of this deadline from when a placement elsewhere in the UK is found. As placements have often been hard to find, UAS Children could potentially remain in KCC care indefinitely whilst the performance record of the NTS would show that the scheme was working, even when KCC Children’s services became overwhelmed.

“Today, the Court has made clear that the 10-day timescale must begin from a referral by KCC into the NTS, so future NTS performance records will be a true measure of the efficiency of the scheme.

“Disappointingly, although this legal action has now ended, there remain outstanding issues with the sustainability of the NTS that must be resolved urgently, particularly as we have now moved into the period of heightened small boat crossings prior to our new accommodations and increased capacity becoming available later this year.

“We are now reviewing our options to ensure a sustainable and fit for purpose NTS and will continue to do everything we can to support and ensure the safety of all children arriving into our care.”

The lengthy litigation has produced a number of outcomes important for the future, including: the end of the Home Office’s practice of accommodating children in hotels outside of the care system; and confirmation that all children in need, regardless of their immigration status, must be looked after by local authority children’s services with no exceptions.

Patricia Durr, CEO of Every Child Protected Against Trafficking (ECPAT UK), said she was grateful for the oversight that the Court provided to ensure that “the unlawful actions of the defendants were brought to an end and that the situation never happens again”.

“The Judge’s recognition of the serious consequences of a local authority disregarding the Children Act 1989 and failing to care for children and the prolonged intransigence of both Kent County Council and the Home Office in rectifying a situation they both knew to be unlawful has been both welcome and necessary. Throughout proceedings we have remained steadfastly committed to upholding the rights and needs of some of the most vulnerable children and we will continue to do so should this or a similar situation happen again.

“No child should be left without the protection of the law and a legal parental authority in place. The risks to children are too great and the consequences far reaching. Over 5000 children passed through hotels since July 2021 – many children went missing, were trafficked and abused and denied rights and entitlements that would have otherwise safeguarded them. It remains a national shame that many of the children that went missing have never been found and we will continue to call for a national inquiry to find out what happened and why.”