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Important win for lone child asylum seekers

Freshfields represented a charity, ECPAT UK (Every Child Protected Against Trafficking UK), in successful judicial review proceedings brought against the Secretary of State for the Home Department and Kent County Council in June 2023.

The case was about the Home Office’s practice of accommodating lone child asylum seekers in hotels without local authority support. Over the past two years, some 5,400 children were accommodated in this way - hundreds of whom have gone missing. As of July 2023, 154 children were still missing (many of whom are suspected to have been trafficked or involved in criminal exploitation).

As a result of the action brought by ECPAT UK, the High Court has declared that the systematic and routine use of this kind of hotel accommodation is unlawful and has put in place directions for the correction of the unlawful practice.

Primacy of local authority responsibility

The High Court, in its judgment of 27 July 2023, clarified the 'primacy' of local authority statutory responsibility for supporting all children in their areas who have no adult to look after them:

‘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.’ (§1)

The Court held that Kent County Council had acted ‘unlawfully, in breach of its duties under the [Children Act] 1989, by failing to accommodate, and then look after, all [unaccompanied asylum seeking (UAS)] children’ (§213(a)) in its area. Mr Justice Chamberlain explained that local authority statutory obligations include duties to safeguard and promote the welfare of children in need, as well as to conduct risk assessments, compile and manage regulatorily compliant care and placement plans, and make arrangements to meet relevant health and educational needs (and any particular needs of lone child asylum seekers or trafficked children).

The Court also ruled that:

  • The Home Office and Kent County Council had both acted unlawfully for entering into an agreement that specified that beyond a certain ‘cap’ Kent County Council would ‘refuse to discharge its statutory duties’. This agreement was unpublished and only disclosed after legal proceedings had commenced. Chamberlain J held that the protocol ‘would induce a person who follows it to breach their legal duty' and was ‘therefore unlawful.’ (§213(b))
  • The Home Office had acted unlawfully in other respects (including for transferring UAS children to other local authorities without transferring local authorities playing any role in that, and for the way in which it accommodated children in hotels).

The Court made several references to Kent County Council’s practice of no longer accepting newly arriving lone child asylum seekers while continuing to accept other children in its area:

‘in announcing that it would cease to accept responsibility for some newly arriving UAS children, while continuing to accept other children into its care, Kent CC has chosen to treat some UAS children differently from and less favourably than other children, because of their status as asylum seekers.’ (§160)

Patricia Durr, CEO of ECPAT UK, said: “This judgment serves as a clear and timely reminder that neither central nor local government departments can depart from the statutory child welfare framework and the duties towards all children under The Children Act 1989. It remains a child protection scandal that so many of the most vulnerable children remain missing at risk of significant harm as a consequence of these unlawful actions by the Secretary of State and Kent County Council. We will continue to defend the rights of every child in the UK to live free from exploitation and access the care they are entitled to under the law.”

Ali Sallaway and Chris Pugh (leading the Freshfields team) said: “It has been a privilege to represent ECPAT UK in this important case. Their commitment to the children affected has been unwavering, and we welcome the clarity provided by the High Court. The onus is now on the Home Office and Kent County Council to put in place a system at speed which ensures that their respective legal obligations towards UAS children are now met going forwards. This was a team effort and we are grateful to our counsel team, Martin Westgate KC, Richard Drabble KC, Shu Shin Luh, and Antonia Benfield.”

Rob Colvin, Senior Associate, said: “The team have worked brilliantly over the last six months or so to provide ECPAT UK with strategic advice and legal analysis, develop and finalise substantial witness evidence, deal with all inter partes correspondence, as well as navigate all the necessary bundling, filing, and other case management requirements of these expedited and multi-party proceedings.” Rob was recently awarded the City’s Wig & Pen Prize for his work on the case.