Children’s rights legal digest – September 2023

This judgment concerns three claims for judicial review: (1) Claim by ECPAT UK (Every Child Protected Against Trafficking) against Kent County Council and the Home Secretary; (2) claim by Kent County Council against the Home Secretary (with Brighton & Hove City Council joining as an interested party); and (3) claim by Brighton & Hove City Council against the Home Secretary (with Kent County Council and the Education Secretary joining as interested parties).

High Court rules practice of accommodating unaccompanied children in hotels unlawful

"Ensuring the safety and welfare of children with no adult to look after them is among the most fundamental duties of any civilised state. In the United Kingdom, this duty is imposed on local authorities. They discharge it in a variety of ways, depending on the needs of the child concerned, for example, by placing children with foster parents or in registered children’s homes or other appropriate accommodation under the supervision of a social worker. The common feature of these arrangements is that the children are, to use the statutory term, “looked after”, and not simply given a roof over their head. A detailed legislative regime requires the local authority, as “corporate parent”, to assess each child’s social, educational and health needs and make plans to meet them."
                                                                                                                                                                                                                                               (Paragraph 1 of the judgment)


In recent years, the number of unaccompanied children arriving in the UK and claiming asylum has increased significantly. It is widely accepted that these children are especially vulnerable due to their often traumatic experiences within their countries of origin, the long and harrowing distances travelled to reach the UK, and the risks and challenges connected to arriving in a new country. Most unaccompanied children reach the UK on small boats and arrive in the UK in Kent, making Kent the local authority responsible for them.

Kent has on several occasions announced that it would not accept newly arriving unaccompanied children into its care due to not having capacity within its children’s services to operate safely. Throughout that time, Kent continued to accept (and have capacity for) other children entering local authority care. The last such announcement was on 11 June 2021. In September 2021, Kent and the Home Secretary agreed ‘the Kent Protocol’ which set a cap on the number of unaccompanied children Kent would accept into its care pending the children’s transfer to other local authorities under the National Transfer Scheme.

From July 2021, the Home Secretary began commissioning hotels to accommodate unaccompanied children, outside of the children’s care system. Between July 2021 and July 2023, more than 5,400 unaccompanied children were accommodated in hotels, 32% of whom were aged 15 or under. Whilst in the hotels, the children are “offered some support in addition to accommodation and food, but they are not looked after and have no corporate parent” (para 6 of the judgment). According to evidence from the Home Secretary shared as part of the High Court’s proceedings, the average stay at one of its hotels in Brighton and Hove was 23 days, and across all hotels children’s average stay was between 9 and 20 days, some considerably longer. According to April 2023 data given to Parliament, 447 unaccompanied children had gone missing from these hotels and 186 remained missing. At the time of the High Court hearing, 154 children remained missing, most of them aged 16 and 17 but some as young as 12.

The issues before the High Court

The High Court considered several issues which had been identified as common to all claims:

Issue 1: Is it unlawful for newly arrived unaccompanied children to be accommodated by the Home Secretary in hotels instead of in the care of the responsible local authority (i.e., where the children are physically present on arrival), pending a transfer under the National Transfer Scheme?

Issue 2: Is the Home Secretary unlawfully failing to comply with the requirements of section 72 of the Immigration Act 2016 (concerning the transfer of responsibility for unaccompanied children between two local authorities as part of the National Transfer Scheme)?

Issue 3: Is the Home Secretary unlawfully failing to comply with the timescales set out in the National Transfer Scheme Protocol which require a transfer of responsibility to take place within 10 working days?

Issue 4: Does the Home Secretary’s practice of accommodating unaccompanied children in hotels undermine the statutory provisions of the Immigration Act 2016 in respect of the transfer of responsibility for unaccompanied children between local authorities, and the Children Act 1989 in respect of local authorities’ duties to look after children without parental care?

Issue 5: Is the Home Secretary acting unlawfully in accommodating unaccompanied children in hotels in local authority areas where the number of unaccompanied children exceeds 0.1% of the local child population?

Issue 6: Is Kent County Council in breach of its duties under the Children Act 1989 by not looking after all newly arrived unaccompanied children (and instead applying a cap on numbers)?

Issue 7: Is the Kent Protocol agreed between the Home Office and Kent County Council unlawful?

Issue 8: What is the scope of the Home Secretary’s power under section 72(3) of the Immigration Act 2016 to direct local authorities to comply with the National Transfer Scheme?

The legal framework

Children Act 1989:

-> None of the protections under the 1989 Act are contingent on a child’s immigration status. 

-> Section 17 requires local authorities to safeguard and promote the welfare of children in need within their area. Domestic case law ([2003] UKHL 57) confirms that a child who lacks accommodation, or is destitute, is by that very fact a child in need, meaning unaccompanied children arriving in the UK are children in need for the purposes of section 17.

-> Section 20 requires local authorities to provide accommodation for any child in need within their area who appears to require accommodation. Unaccompanied children arriving in the UK are owed a duty under section 20 and the duty is absolute in that firstly, local authorities “cannot impose eligibility criteria beyond those stipulated in the statute” and secondly, as established in domestic case law ([2009] EWHC 458 (Admin)), the duty applies irrespective of the local authority’s resources or lack of them (paragraph 29 of the judgment).  

-> A child provided with accommodation under section 20 for more than 24 hours becomes looked after and the responsible local authority must safeguard and promote their welfare, including their educational achievement. 

-> Under section 22G, local authorities have a general, anticipatory ‘sufficiency’ duty, i.e., to take steps to secure, so far as practicable, accommodation for looked after children that is within the authority’s area and that meets their needs. 

-> Section 22C establishes a ‘hierarchy of accommodation options’ whereby priority must be given to looked after children living with a parent, a person with parental responsibility or another authorised person (unless this would not be consistent with the child’s welfare or would not be reasonably practicable). Where this is not possible, local authorities must provide accommodation which is the most appropriate placement available. The choice of most appropriate placement is restricted to accommodation options set out in section 22C(6).

The Care Planning, Placement and Case Review (England) Regulations 2010:

-> Regulation 4 requires local authorities to assess what support the child needs to achieve or maintain a good standard of health or development, and to prepare a care plan. If the child is a victim of trafficking, or there is reason to believe they are, or they are an unaccompanied asylum seeking child, the care plan must include this information (regulation 5(f)). This latter provision was introduced in 2014 and intended to “bring greater attention and focus to the particular needs of these children and will help ensure they receive from local authorities the specialist support and care that they need” – para 7.2 of the Explanatory Memorandum).

-> Under regulation 9, local authorities must prepare a placement plan setting out how the placement will contribute to meeting the child’s needs. It must include all matters listed in Schedule 2 of the 2010 Regulations, including “how on a day to day basis [the child] will be cared for and [the child’s] welfare will be safeguarded and promoted by the appropriate person”.   

The primacy of local authorities’ duties as established by domestic case law: 

-> Local authorities’ duties under the Children Act 1989 have “primacy” over other statutory functions. Local authorities cannot avoid providing accommodation under section 20 of the Children Act 1989 and fulfilling all associated duties by instead accommodating a child under the Housing Act 1996 or another statutory regime. This was established in R (G) v Southwark London Borough Council [2009] UKHL 26. As cited by Lady Hale in UKHL 26 (para 3), “a child, even one on the verge of adulthood, is considered and treated by Parliament as a vulnerable person to whom the state, in the form of the relevant local authority, owes a duty which goes wider than the mere provision of accommodation” (quoting Rix LJ in [2008] EWCA Civ 877).

Statutory guidance: 

As required by section 7(1) of the Local Authority Social Services Act 1970, local authorities must, when exercising their social services functions, act under the general guidance of the Secretary of State (meaning they must follow statutory guidance issued by the government). This includes: 

-> Working together to safeguard children (2018), which provides detailed guidance in relation to the implementation of section 17 and section 47 duties under the Children Act 1989;

-> Care of unaccompanied migrant children and child victims of modern slavery (2017), which sets out the steps local authorities should take to plan for the provision of support for children in these circumstances. . This includes fulfilment of duties under sections 17, 20 and 47 of the Children Act 1989 and associated duties under the 2010 Regulations. The guidance emphasises the vulnerability of unaccompanied children and child victims of modern slavery, stating they are “some of the most vulnerable children in the country” (para 1) who are at a heightened risk of going missing from care and/or being exploited (para 40). Local authorities should take particular account of these risks when preparing placement plans and should avoid assumptions about children’s resilience and ability to cope (para 73).  Suitable emergency accommodation with sufficient supervision and monitoring by on-site staff to keep the child safe should be provided, with bed and breakfast accommodation identified as “not suitable for any child, even on an emergency accommodation basis” (para 79). 
Provisions for the transfer of responsibility for unaccompanied children between local authorities:

-> Sections 69-72 of the Immigration Act 2016 allow for the transfer of (responsibility for) unaccompanied children between two local authorities. 

-> The National Transfer Scheme (NTS) established by the Secretary of State, under the power conferred by section 72 of the 2016 Act, allows for the transfer of functions in relation to an unaccompanied child from the “transferring authority” to a “receiving authority”. The detailed terms of the NTS are set out in the NTS Protocol (see paras 62-66 of the judgment for more information).

The Kent Protocol:     

-> The Kent Protocol sets out the terms of an agreement between Kent County Council and the Home Secretary in response to Kent County Council’s “limited capacity” for meeting the needs of unaccompanied children “safely and lawfully”, due to unprecedented demand. The Protocol provided for the creation of a “Reception and Safe Care Service” (RSCS) for children awaiting a transfer to another local authority and payment by the Home Office of a corresponding fixed fee. It also stipulated that if the number of unaccompanied children in the care of Kent County Council exceeds 0.07% of Kent’s total child population, then the maximum number of unaccompanied children Kent would accept as part of the RSCS would be capped. Evidence shared with the High Court showed that “relevant staff in Kent CC’s children’s services department knew [about it] and were well aware of the policy it formalised” (para 69 of the judgment). 

[For a more detailed analysis of the legal framework, including the NTS, the NTS Protocol and the Kent Protocol, please refer to paras 22-69 of the judgment].

The High Court’s decision

The High Court’s conclusions are set out in paragraph 213 of the judgment and can be summarised as follows:

(a) – re. issue 6: The High Court found Kent County Council in breach of its duties under the Children Act 1989:

In ceasing to accept responsibility for some newly arriving [unaccompanied] children, while continuing to accept other children into its care, Kent CC chose to treat some [unaccompanied] children differently from and less favourably than other children, because of their status as asylum seekers. This violates a fundamental aspect of the statutory scheme: that a local authority’s duties under the Children Act 1989 apply to all children, irrespective of immigration status, on the basis of need alone” (paragraph 213; emphasis added).

The High Court reiterated (in the ‘discussion’ part of the judgment) that “newly arrived unaccompanied children are necessarily children in need to whom the s. 20 duty is owed; and because it is well-established that the duty is absolute and non-derogable and applies irrespective of the resources of the local authority” (para 159; emphasis added).

(b) – re. issue 7: The High Court found the Kent Protocol to be unlawful, finding both Kent County Council and the Home Secretary responsible for the operation of this unlawful policy.

(c) – re. issue 2: The High Court found that the operation of the National Transfer Scheme (NTS) Protocol was unlawful because, in practice, it involved the transfer of responsibility for unaccompanied children from the Home Secretary to a ‘second’ local authority, with the ‘first’ authority (i.e., Kent County Council) playing no part at all. This is in breach of the Immigration Act 2016 which empowers the Home Secretary to prepare a scheme for the transfer of responsibilities between two local authorities.

(e) – re. issues 1 and 4: From December 2021, children were being accommodated in hotels and outside local authority care routinely and systematically, making the practice unlawful.

The High Court confirmed that, while the Home Secretary has a limited legal power to accommodate children in hotels, the statutory scheme envisages that children are to be accommodated and looked after by local authorities, not other persons (such as those managing hotels):

“The power [to accommodate a child in a hotel] may be used over very short periods in true emergency situations, where stringent efforts are being made to enable the local authority promptly to resume the discharge of its duties. It cannot be used systematically or routinely in circumstances where it is intended, or functions in practice, as a substitute for local authority care” (paragraph 213; emphasis added).

At a separate hearing in mid-August, the High Court made a declaration confirming that Kent County Council had previously acted, and continued to act, unlawfully by failing to accommodate and look after all unaccompanied children in its area. The High Court additionally quashed the Kent Protocol and ordered for the National Transfer Scheme to be resumed insofar as is necessary to allow the Home Secretary to make arrangements for the children currently living in hotels to be moved to local authority care (which should happen within five working days). Another hearing was to follow, including to determine whether unaccompanied children are being treated differently to other children entering local authority care.  You can read more on the ECPAT UK website. 

You can read the full judgment here: ECPAT UK, R (On the Application Of) v Kent County Council & Anor [2023] EWHC 1953 (Admin) (27 July 2023)

Read about Article 39’s High Court litigation (funded by the Good Law Project) to protect unaccompanied children: Family court rules that unaccompanied children are the responsibility of local authorities.