Article 39 children’s rights charity has threatened legal action against the Home Office and the Department for Education if they do not stop housing unaccompanied asylum-seeking children in Home Office-run hotels. Children are being kept outside the child welfare system, they are denied fundamental protections, and there is no independent scrutiny of each child’s welfare and treatment. The Children Act 1989 places responsibility on local authorities to look after children in their area who are without parental or family care and have nowhere to live.
The charity has also taken the exceptional measure of commencing wardship applications to the Family Division of the High Court in respect of the 76 children who remain missing from a Home Office-run hotel in Brighton and Hove. We do not know how old the children were when they went missing, and how old they are now. If this application succeeds, the court will consider appointing a children’s guardian to each child and the court would then supervise action taken by government and others to protect them. As with all decision-making in the family court, the child’s best interests would be paramount.
Working with the Good Law Project, Article 39 is seeking protective action by the courts because so-called urgent and temporary arrangements have persisted for more than 19 months. The Home Office, with the agreement of the then Education Secretary Gavin Williamson, started putting unaccompanied children in hotels in July 2021. There were three hotels at the start; it is understood the Home Office now runs seven hotels. The Care Standards Act 2000 requires any establishment that provides care and accommodation wholly or mainly for children to register as a children’s home with Ofsted. Amongst many questions put to government by lawyers acting for Article 39 is whether the Home Office considers it is running children’s homes. Latest data from the government indicates children are housed in these hotels for 20.11 days on average. The longest period a child has been kept in a hotel is 128 days.
Over 4,600 unaccompanied children have been housed in hotels since July 2021, and children have gone missing on 440 separate occasions. The government admits that 200 children remain missing overall. Very little information has been put into the public domain, though more is known about the Brighton and Hove hotel due to whistleblowers sharing their grave concerns with the Observer newspaper.
A security guard working at the hotel in Brighton and Hove saw criminal gangs outside and “children being effectively abducted”, the Observer newspaper reported at the end of January. The whistleblower told the newspaper: “The Albanian and Eritrean gangs pick them up in their BMWs and Audis and then they just vanish”.
Last week, Brighton and Hove’s Safeguarding Children Partnership published a report from its Chair which conceded, “There remains no definitive answer to where the outstanding missing children currently are”. The report indicates that 60 children who went missing from a Home Office-run hotel in Brighton and Hove have been found, but 76 remain missing. No details are provided about the individual children who went missing and haven’t been found, including their age at the time or whether there were any concerns about prior abuse and exploitation, though the report notes 37 are now adults. It does not state whether the children who were found are now in the care of local authorities. It appears from the report that children started going missing from that particular hotel in August 2021.
A response to a freedom of information request last week also revealed the Children’s Commissioner for England has made just two visits to Home Office-run hotels in the past 19 months, with her last visit six months ago. Both visits were to hotels in Kent. A further three visits have been made by members of Dame Rachel de Souza’s team, to hotels in Kent (two visits) and Coventry (one visit). The children’s rights body has refused to tell Article 39 how many children were seen and interviewed during any of the five visits, claiming this would breach data protection rules. It has also refused to release any notes made during the visits, despite Article 39 telling the Commissioner it understood redactions would be necessary to protect children’s privacy. Article 39 further asked for copies of any correspondence written by the Children’s Commissioner to public authorities setting out concerns about individual children’s welfare and safety. The charity was directed to an already published letter to the Home Secretary from the Children’s Commissioner, dated 24 January 2023.
Dame Rachel de Souza has unique legal powers to enter any premises that are not private homes, in order to interview children and check the standard of care provided there. None of the visits made by the Children’s Commissioner or her team were to the Brighton and Hove hotel.
Given the gravity and urgency of child protection concerns, and indications that the Home Office may be seeking to regularise the diversion of unaccompanied children from the child welfare system, Article 39 and the Good Law Project, together with 49 other organisations, have written to parliament’s Joint Committee on Human Rights urging it to establish a standalone inquiry.
Carolyne Willow, Article 39’s Director, said:
“Children who arrive in the UK after terrifying journeys, and having suffered great trauma and loss, meet every definition of a child in need of care and protection. The Children Act 1989 does not differentiate children on the basis of where they were born, and this legislation is absolutely clear that it is local authorities who have the legal responsibility for looking after and protecting individual children.
“In concocting this so-called emergency arrangement, which has lasted more than 19 months, the Home Office has kept nearly 5,000 children away from our country’s child welfare system operated by local authorities. This lawlessness puts children at risk and degrades our child welfare system.
“We’re a very small children’s rights charity and we would not be able to take this legal action without support from the Good Law Project. We have been sounding the alarm with many other charities for nearly two years. Now that whistleblowers have come forward to confirm our worst fears and child protection warnings, we have to say enough is enough. We hope the involvement of the family court will lead to a robust child protection response for each of the desperately vulnerable children who remain missing from the hotel in Brighton and Hove, and that this will have a wider positive effect on other children who are missing from hotels, the locations of which are not in the public domain.
“Government must properly fund local authorities to look after all children who are without parental or family care and protection, no matter where those children were born. It’s no answer for the Home Office to say it’s acting outside child protection law because local authorities don’t have homes for children – Ministers must fix the crisis in the children’s care system, which means substantial new funding and sustained, high-level government commitment to children in the care of local authorities, no matter how they became to be separated from their families.”
Article 39 first threatened legal action in autumn 2021, weeks after the Home Office, with backing from the then Education Secretary, began using hotels to house children arriving in the UK on small boats without any parents or carers. At the end of November 2021, the government announced that local authorities would be compelled to participate in a national arrangement, whereby children are placed across the UK so as not to overwhelm any single council. Further reassurances were provided to Article 39 that the use of hotels would end, and government was doing everything possible to support local authorities. However, councils continue to highlight the need for urgent funding and other government action to rectify the shortage of homes for children in care.
The Home Office has no legal authority for taking over the care of children in need, though it has responsibility for the ‘national transfer scheme’, which started in 2016. Local authorities were allowed to opt-out of this until February 2022. Since then, the Home Office has been able to compel individual local authorities to take unaccompanied children, though it states it will do this only if the number of unaccompanied children a council is looking after is below 0.1% of its local child population.
Medway Council recently lost its legal challenge against the Home Office, and must now join the scheme (the local authority was looking after five unaccompanied children at the time of the legal proceedings). The High Court refused the council’s claim to operate outside the scheme, its judgment stating, “unlike local authorities, the Home Office and its officials do not have the facilities, the skills, or the legal powers and duties to look after children pursuant to the Children Act 1989. It is plainly not in the best interests of UAS children to be accommodated, at any rate for more than very short periods, in hotels or immigration reception centres”.
Safeguards for children in care have evolved over many decades, often in response to mistreatment and abuse scandals. One of the protections in place for children in care, which is denied to unaccompanied children housed in Home Office-run hotels, is the appointment of independent reviewing officers. These are experienced social workers responsible for checking that local authorities are properly looking after and protecting individual children in their care. They are duty-bound to consider reporting serious breaches to Cafcass, which is empowered to take legal action to protect the rights of individual children. Children in Home Office-run hotels are also denied access to independent advocates, a safeguard developed after the children’s homes abuse scandals in the 1980s and 1990s.
Article 39 is not aware of any local authority in England who has publicly declared it cannot look after any more children in its area who are without parents or carers. In 2021, the Department for Education introduced secondary legislation to prohibit local authorities from placing children in care in unregulated, non-care settings – but only to the age of 15. Many of the 16 and 17 year-olds affected by this discriminatory legislation are unaccompanied children. Article 39’s legal challenge to that legislation was unsuccessful.
Notes
- Article 39 is represented by the Good Law Practice, and Caoilfhionn Gallagher KC and Sarah Dobbie from Doughty Street Chambers (judicial review), and Amanda Weston KC and Naomi Wiseman from Garden Court Chambers and 1KBW Chambers respectively (wardship).
- In July 2021, a joint letter from charities was sent to the then Education Secretary Gavin Williamson urging him to ensure that children received lawful care and accommodation from local authorities.
- On 26 January 2023, over 100 charities supported a joint letter to the Prime Minister co-ordinated by ECPAT UK and the Refugee Council, urging him to cease the use of hotels for unaccompanied children.