In this issue, we focus on a recent High Court judgment relating to local authorities’ duties under Section 20 of the Children Act 1989 towards children and young people awaiting the outcome of an age assessment. The High Court found the local authority’s refusal to accommodate three putative children unlawful, dismissing the local authority’s claim that exceptional circumstances justified departure from statutory guidance.
High Court declares local authority’s failure to accommodate putative children awaiting age assessments unlawful
The judgment concerns three judicial review claims made on behalf of three individuals referred to as AB, NLK and AD. All three claims related to one local authority and its refusal to accommodate AB, NLK and AD as putative children under Section 20 of the Children Act 1989 pending the outcome of their age assessments.
While the local authority accepted that the ages of AB, NLK and AD were in doubt, effectively recognising them as putative children, it claimed that exceptional circumstances justified departure from guidance and that it was within its rights to refuse to accommodate them. The exceptional circumstances cited were that AB, NLK and AD had all been accommodated (by the Home Office) in a hotel and that “their age assessments would be short-form assessments that would soon be completed”.
In September 2020, some 180-200 people seeking asylum in the UK were accommodated by the Home Office in a Holiday Inn hotel in London. All individuals were considered adults by the Home Office but, later that year, at least 10 referrals were made to children’s social care on behalf of individuals saying they were children. These included referrals for AB, NLK and AD.
AB’s referral was received by the local authority in late October and in early December his solicitor formally challenged the council for failing to support him under Section 20 of the Children Act 1989. Following the council’s initial refusal to accept that duties under Section 20 arose, the High Court ordered the council to take AB into its care under Section 20, pending the outcome of the age assessment. AB moved in with a foster family where he was supported to learn basic living skills, started online English classes and, as he later told the court, he felt stable, secure and happy for the first time since coming to the UK.
NLK’s circumstances were similar but, before a legal challenge led to the local authority accommodating him in a “semi-independent unit for young people” pending the outcome of the age assessment, he had been moved from the Holiday Inn into a detention centre.
Similarly, before an interim relief from the court ordered the local authority to accommodate AD under Section 20, which led to him moving in with a foster family, he had been moved from the hotel to Napier Barracks and later returned to the Holiday Inn.
Age assessments, which took between five months and one year to complete, concluded that, at the time of being placed in the Holiday Inn, AB was 16, NLK 25 and AD 24 years old.
The legal framework
- Primary and secondary legislation
Section 17 of the Children Act 1989 places a general duty on every local authority to safeguard and promote the welfare of children within its area who are in need “by providing a range and level of services appropriate to those children’s needs” (17(1)), which may include providing accommodation (17(6)). Local authorities are also required (must) to “take reasonable steps to identify the extent to which there are children in need within their area” (Paragraph 1 of Schedule 2 to the Children Act 1989).
Section 20 of the of the Children Act 1989 places a duty on local authorities to provide accommodation for any child in need who appears to require accommodation because there is no person with parental responsibility for the child, the child is lost or abandoned or where the person caring for the child is prevented from providing suitable accommodation or care.
Both Section 17 and 20 require local authorities to ascertain the child’s wishes and feelings regarding the provision of support/accommodation and give them due consideration, having regard to the child’s age and understanding (17(4A) and 20(6)).
Importantly, Section 22(1)-(2) of the Children Act 1989 states that any child who is provided by the local authority with accommodation for more than 24 hours is a looked after child.
The High Court noted that the duty which arises under Section 20 “should be read in the light of the general duty under Section 11 of the Children Act 2004 which requires local authorities to make arrangements to ensure that that their functions … are discharged having regard to the need to safeguard and promote the welfare of children…”.
Finally, it’s important to remember that secondary legislation – the Care Planning, Placement and Case Review (England) Regulations 2010 – require that any accommodation (other than with a relative, a foster family or in a registered children’s home) provided by the local authority to a looked after child must be “suitable” (Regulation 27(a)), and that consideration be given to e.g., location, support, state of repair and the child’s views about the accommodation (Schedule 6).
- Statutory and non-statutory guidance
Statutory guidance – Care of unaccompanied migrant children and child victims of modern slavery (2017) – states that “where the person’s age is in doubt, they must be treated as a child [defined as anyone who has not yet reached their 18th birthday] unless, and until, a case-law compliant age assessment shows the person to be an adult”. This guidance must be complied with by local authorities “unless there are exceptional reasons which justify a departure”.
Statutory guidance also states:
“An unaccompanied child will become looked after by the local authority after having been accommodated by the local authority under section 20(1) of the Children Act 1989 for 24 hours. This will mean that they will be entitled to the same local authority provision as any other looked after child. Assessment and care provisions for the child should commence immediately as for any looked after child, irrespective of whether an application (e.g. an asylum claim) has been submitted to the Home Office.”
In 2017, in a similar case, the High Court confirmed that a local authority was “obliged to follow the statutory guidance and to treat the claimant as a child unless there were cogent reasons for departing from the statutory guidance” (Lavender J in R(S) v Croydon LBC  EWHC 265 (Admin)).
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) – sets out non-statutory guidance relevant in this case. It states, among other things, that suitable accommodation should be planned before, during and after the assessment and that “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”. It also identifies bed and breakfast accommodation as not suitable for any child under the age of 18, not even on an emergency basis. Importantly, it says that “the dangers inherent in not taking a child into your care are multiple” and that “where there is doubt whether or not the young person is a child, the dangers inherent in treating a child as an adult are in almost all cases far greater than the dangers of taking a young adult into your care.”
Finally, the ADCS guidance document sets out the expectation that most age assessments should be completed within 28 days.
The court’s decision
The High Court found the local authority’s decisions not to accommodate AB, NLK and AD under Section 20 of the Children Act 1989 unlawful.
AB, NLK and AD were all recognised as putative children, and it was clear in their respective circumstances that there was no one with parental responsibility for them in the country.
A series of concerns about putative children staying in a hotel alongside adults were expressed by High Court, including about their safety, the lack of education and health provision, and the absence of dedicated support from children’s services.
The local authority’s view that AB, NLK and AD did not require accommodation and that their welfare would not be seriously prejudiced during the time it would take to complete their age assessments was also dismissed:
“Accommodation is more than a room with a bed, and access to a toilet and shower […] There was no child-focused support or provision at the hotel, no Section 17 Children Act provision of services, and no access to education. There is no evidence of any adaptations to the hotel to make it suitable for unaccompanied children. On the evidence provided to this court, I conclude that the accommodation at the Holiday Inn was materially equivalent to bed and breakfast accommodation. It was accommodation that was wholly unsuitable for unaccompanied asylum seeking children. It was not accommodation that would safeguard children or promote their welfare: instead, it jeopardised their safety and was likely to be detrimental to their welfare.”
The High Court also dismissed the local authority’s assertion that exception circumstances justified its departure from statutory guidance. Given that the age assessments in question were likely to take at least 28 days, there was nothing exceptional about the proposed age assessment timescales in any of the three cases.
You can read the full judgment here:  EWHC 2843 (Admin)
Learn more: You can learn more about Section 20 of the Children Act 1989 and the criteria for determining whether a duty to accommodate under Section 20 arises in the January 2021 issue of the legal digest. It summarises the landmark ‘Southwark judgment’ which clarified and reaffirmed local authority duties towards homeless 16 and 17-year-olds. We wrote about local authority duties towards unaccompanied migrant children whose age is in question in the November 2021 issue of the legal digest. This issue also looks at the role and status of statutory guidance in England.