Family court rules that unaccompanied children are the responsibility of local authorities

A senior family court judge, Mrs Justice Lieven, has today (9 June) ruled 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 (judgment here). Rejecting the proposition that there is a lacuna in protection, Mrs Justice Lieven held that the Children Act 1989 gives local authorities full powers (and duties) to protect children.

Since July 2021, the Home Office has been housing in hotels children who arrive in the UK on small boats without family or carers. As of 24 January 2023, over 4,600 children had been put into Home Office-run hotels and children had gone missing on more than 440 occasions. Two hundred children were still missing at that time. The Department for Education gave its approval for this so-called emergency measure nearly two years ago. Home Office Minister, Robert Jenrick MP, told Parliament this week that there are currently no unaccompanied children housed in Home Office-run hotels, but that this could change. Article 39 has maintained throughout that the Home Office has no power to house children, and they should be looked after by local authorities as the Children Act 1989 requires.

With the backing of the Good Law Project, in response to whistleblower allegations that children had been abducted from a hotel in Brighton and Hove, we sought urgent protection for this group of children through a wardship application in the family court. Hearings took place in the Family Division of the High Court on 24 March and 18 April 2023. At the first hearing, the Home Office reported that 66 children remained missing from this single hotel. Today’s judgment states that 23 children remain missing. (Article 39 did not seek through these proceedings, and was not provided with, details of the missing children).

We argued that there is a lacuna in protection since individual missing children have no ‘corporate parent’ responsible for their safety and welfare. Brighton and Hove Safeguarding Children Partnership had, at the end of February 2023, published a report which stated that “the status of [unaccompanied asylum-seeking] children remains ‘in limbo’. They 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”. 

Today’s judgment confirms that:

• Unaccompanied children have the same right to protection under the Children Act 1989 as other children who are without parents and carers.
• 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 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” (paragraph 34).
• Wardship protection (under the High Court’s inherent jurisdiction power) is not available for unaccompanied children who have been housed in Home Office-run hotels because the Children Act 1989 protects them. Mrs Justice Lieven reiterated “the fundamental constitutional principle that where there is a statutory scheme, the Court should only use the inherent jurisdiction if there is a lacuna” (paragraph 33).
• Local authorities who fail to fulfil their statutory duties towards unaccompanied children in their area can be held accountable through judicial review: “I should make clear, that even if there were issues around how actively efforts were being made to find the children, this would not give a proper basis for the Court to exercise the inherent jurisdiction. If the relevant agencies were not exercising their statutory powers correctly, and there is no evidence that is the case, then the remedy would be judicial review and not the use of the inherent jurisdiction. There is no lacuna in the statutory scheme which would justify the exercise of that jurisdiction” (paragraph 37).  

Carolyne Willow, Article 39’s Director, said:

“This judgment has 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. That was a fiction which unforgivably exposed children to serious harm. 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.

“The implication of today’s judgment is that Brighton and Hove Council must treat the children who remain missing as children in need, and that when they are found they are looked after within the children’s care system. Further, that any future unaccompanied children housed by the Home Office in a hotel in Brighton and Hove, or in any other local area, should be treated as a child in need and accordingly looked after by the local authority. Any future 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 inevitably expose them to judicial review.”

Mrs Justice Lieven said of Brighton and Hove Council’s responsibilities towards children who remain missing (paragraphs 35-36):

“The difficulty that arises on the facts of this case is that the children are missing. Therefore, it is not possible to know whether at the present time they are living in Brighton and Hove or elsewhere, and therefore which local authority is responsible for them. However, this difficulty does not arise because of a lacuna in the statutory scheme, it arises because the children have gone missing. 

The agency that then has responsibility for finding the children and thus allowing them to fall within a specific local authority’s powers and duties is the police, both the Sussex Police and any national police bodies that can be engaged. The Sussex Police are, from the evidence and the Safeguarding Report, engaged in trying to trace the missing children. The Report suggests that the Police and the Local Authority are fully engaging in this task and working together to try to find the children. The Local Authority has appointed a practice manager to oversee the process.“

Notes

1. Article 39 is represented by the Good Law Practice, and Amanda Weston KC, Naomi Wiseman and Professor Rob George from Garden Court Chambers, 1KBW Chambers and Harcourt Chambers respectively. Today’s judgment can be found here.
2. 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.
3. 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.
4. The Illegal Migration Bill, currently in the House of Lords, seeks to give the Home Secretary the power to house unaccompanied children, and the power to direct that local authorities cease looking after individual unaccompanied children.
5. On 7 June 2023, in a debate on the Illegal Migration Bill, the Home Office stated that 154 unaccompanied children remain missing from hotels.
6. Article 39’s litigation to protect unaccompanied children is only possible through the backing of the Good Law Project. You can support this work here.