Children’s rights legal digest – November 2020

In late October, a High Court judge granted permission for a judicial review concerning the duties of local authorities towards children who are awaiting an age assessment. The case, brought on behalf of three children, centres on whether the local authority in question was trying to “side-step their duties” by failing to accommodate them under Section 20 of the Children Act 1989 because the children had been placed in (adult) accommodation managed by the Home Office. The case won’t be heard until January 2021 and, until the outcome of the hearing is known, the Court has ordered the local authority to accommodate the three children as looked after children.

The case raises similar issues to a different case from 2017 which will be useful for advocates supporting unaccompanied children. We summarise it below.  

Local authority duties towards unaccompanied migrant children whose ages have been disputed

In 2017, the High Court ruled that it was unlawful for the London Borough of Croydon not to adhere to statutory guidanceCare of unaccompanied migrant children and child victims of modern slavery: Statutory guidance for local authorities (2017)and to fail to treat a child whose age had been disputed as a child while age assessment was being carried out.

Many unaccompanied children arrive in the UK unable to show how old they are, because, for example, they lack the requisite identification documents. The 2017 case concerned a young person who arrived in the UK from Iraq in September 2016. Within 24 hours from his arrival, he was placed in Home Office administered accommodation in Croydon (a hostel for adult asylum seekers) because, despite the young person’s claim to be 15 years old, the Home Office believed that “he was significantly over 18 years of age”.

With the support of the Refugee Council, the young person approached the local authority, Croydon, and requested accommodation and support. The local authority agreed to conduct an age assessment but refused to accommodate the young person under Section 20 of the Children Act 1989 pending the outcome of the assessment. The young person remained in the adult hostel and described being physically attacked by another resident, sharing a room with adults who were frequently changing and whom he could not communicate with because they spoke different languages. The young person described feeling “scared and intimidated” when other residents would get angry and aggressive towards him.

The Children Act 1989 and statutory guidance on the care of unaccompanied children is clear that  “anyone who has not yet reached their 18th birthday” is a child. Furthermore, the guidance states that “where the person’s age is in doubt, they must be treated as a child unless, and until, a case-law compliant [lawful] age assessment shows the person to be an adult”.

The court also referenced various sections of a guidance document produced by the Association of Directors of Children’s Services (ADCS) – Age assessment guidance: Guidance to assist social workers and their managers in undertaking age assessments in England (2015). While this guidance is non-statutory, the judge pointed out that it “reinforces” statutory guidance and the duty to treat a person as a child where their age is in doubt.

The ADCS guidance for social workers and their managers says:

“You will need to plan for suitable accommodation before, during and after the assessment. See the Department for Education statutory guidance on the ‘Care of unaccompanied and trafficked children’ for more help and information with regard to this. Other than in exceptional circumstances, children and young people will be looked after under Section 20 of the Children Act 1989 whilst the age assessment process continues [..] Bed and breakfast accommodation is not suitable for any child under the age of 18, even on an emergency basis.” (pp.10-11).

You can read the full judgment here: S, R (on the application of) v London Borough of Croydon & Anor [2017] EWHC 265 (Admin) (24 February 2017)  

The role and status of statutory guidance in England
In broad terms, the purpose of government guidance is to provide further details and direction to facilitate the effective implementation of legal obligations. Guidance issued by the relevant government department can supplement both primary legislation (Acts of Parliament) and secondary legislation (statutory instruments, eg. Regulations)
There are two key types of guidance – statutory and non-statutory guidance.
Statutory guidance should be followed unless there are very good reasons not to. In a well-known case – Rixon v London Borough of Islingtonthe High Court considered the extent to which a local authority is required to follow statutory guidance. The Court concluded that there must be very good reason for a public authority not to follow statutory guidance.
Non-statutory guidance does not have the same weight and is effectively good practice advice from the government or other public bodies. It does not carry the same legal weight, though public authorities are expected to take it into account when discharging their duties. As illustrated earlier on in this issue of the legal digest, non-statutory guidance can reinforce statutory guidance and offer useful details on how to meet legal duties.