Judge ends High Court supervision of conduct of council and Home Secretary over unaccompanied asylum-seeking children

The High Court has issued its final ruling in the long-running case brought by charity ECPAT UK against Kent County Council and the Home Office concerning unaccompanied asylum-seeking (UAS) children entering the UK in Kent on small boats.

In R (ECPAT UK) v Kent CC, SSHD [2024] EWHC 1353 (Admin), Mr Justice Chamberlain decided that there should be no further relief and the Court’s supervision of the lawfulness of the conduct of the council and the Home Secretary should be brought to an end, “at least as far as these proceedings are concerned”.

The judge again made clear, however, that Kent County Council cannot depart from its duties under the Children Act 1989 and that non-compliance with the s.20 CA duty is “not justified or excused by resource constraints of any kind”.

The council had previously eased pressure on its care services through a deal with the Home Office that capped the number of UAS children the council would take - dubbed ‘the Kent Protocol’.

But in a High Court ruling on 27 July 2023, Mr Justice Chamberlain found the practice to be unlawful. The judge also ruled that Kent's decision to stop taking UAS children breached the Children Act 1989.

The High Court further ruled that the Home Office’s policy of placing UAS children in hotels was unlawful when it became “systematic and routine”.

In the most recent decision handed down today (5 June), the court highlighted the use of what Kent calls “Section 11 notices” to indicate that it can no longer safely accommodate children.

Mr Justice Chamberlain said: “It is unclear what legal effect Kent CC thinks these notices have, given Mr Southey’s [the KC for Kent’s] concession that they do not render lawful a breach of s. 20 duty. It is important to be clear that these ‘s. 11 notices’ have no apparent statutory basis”.

The judge went on to clarify: “Section 11 of the Children Act 2004 does not attenuate or qualify the s. 20 duty. Rather, it imposes an obligation to make arrangements for ensuring that Kent CC’s ‘functions’ are discharged having regard to the need to safeguard and promote the welfare of children. ‘Functions’ here means Kent CC’s functions in respect of all UAS children. Nothing in s. 11 of the Children Act 2004 cuts down, or otherwise affects, what those functions are.”

The decision also addressed some remaining conflicts between the council and the Home Office, in particular the action required of the Home Secretary when the final trigger point is reached in the Emergency Response Plan (ERP).

The trigger points form an early warning system. The Secretaries of State suggested that ‘Trigger Point 4’ should be when Kent CC considers that it will be unable to identify any placements in the market to accommodate children after 72 hours.

Trigger Point 4 provides for direct engagement by Department for Education ministers with local authorities and Home Office Ministers with the devolved administrations.

The judge highlighted that personal engagement by ministers may not be enough on its own and was “encouraged” to see reference to inclusion of additional urgent incentivised funding for Kent.

In November 2023, the High Court agreed with Kent’s criticisms of the degree of urgency shown by the Home Secretary’s decision-making process for the National Transfer Scheme (NTS).

The NTS was implemented in 2016 after small boat crossings by immigrants landing in Kent increased dramatically.

It was designed to enable unaccompanied asylum-seeking children to be cared for by local authorities throughout the country once Kent has reached its capacity, which was set at 346, equivalent to 0.1% of its under 18 population.

Mr Justice Chamberlain found in November that the Home Office approach to the NTS’s management was both “unreasonably slow” and “unlawful”.

Patricia Durr, CEO of Every Child Protected Against Trafficking (ECPAT UK) said: “This is a landmark case and we are grateful for the oversight that the Court has retained to ensure that the unlawful actions of the defendants were brought to an end and that the situation never happens again.

“The Judge’s recognition of the serious consequences of a local authority disregarding the Children Act 1989 and failing to care for children and the prolonged intransigence of both Kent County Council and the Home Office in rectifying a situation they both knew to be unlawful has been both welcome and necessary. Throughout proceedings we have remained steadfastly committed to upholding the rights and needs of some of the most vulnerable children and we will continue to do so should this or a similar situation happen again.”

She added: “No child should be left without the protection of the law and a legal parental authority in place.  The risks to children are too great and the consequences far reaching. Over 5000 children passed through hotels since July 2021 – many children went missing, were trafficked and abused and denied rights and entitlements that would have otherwise safeguarded them. It remains a national shame that many of the children that went missing have never been found and we will continue to call for a national inquiry to find out what happened and why.”

Roger Gough, Leader of Kent County Council, said the local authority welcomed Mr Justice Chamberlain’s final judgment.

“It remains Kent’s position that the scheme must be managed efficiently and effectively to transfer UAS children swiftly and safely to another UK local authority. This will ensure that these vulnerable children are looked after safely, that Kent’s Children’s Services are never unfairly overwhelmed again and stop the unequitable burden on Kent,” he said.

“Throughout this extended legal action KCC has continued to work tirelessly to care for and provide safe accommodation for vulnerable UAS Children, particularly after July 2023 when the Court ruled the Home Office use of hotels unlawful and that KCC must accommodate all new arrivals of UAS Children on Kent’s shores regardless of its capacity to do so.  This was recognised in the praise for KCC Children’s Services and our UAS Children’s accommodation and care by staff of the United Nations High Commissioner for Refugees (UNHCR) after a visit to one of our reception centres.”

Cllr Gough added: “The first Court judgment was made prior to hearing the council’s challenge regarding the inadequate management of the NTS. In November 2023, the Court found that the Home Secretary had acted unlawfully in this regard and must resolve the issues to ensure it works fairly and sustainably in the future.

“Today, we are delighted that the Court has also found that the way in which the Home Office measures the performance and success of the NTS is skewed, does not represent reality, and must be changed to do so.

“We have long argued that, under the rules of the NTS the ten-day timescale for a successful transfer should begin when a UAS Child is referred by KCC to the National Transfer scheme which takes place within a maximum of 48 hours of the child’s arrival. The Home Office, however, records the start of this deadline from when a placement elsewhere in the UK is found. As placements have often been hard to find, UAS Children could potentially remain in KCC care indefinitely whilst the performance record of the NTS would show that the scheme was working, even when KCC Children’s services became overwhelmed.”

Kent’s Leader said the High Court had made it clear that the 10-day timescale must begin from a referral by the county council into the NTS, so future NTS performance records would be a true measure of the efficiency of the scheme.

“Disappointingly, although this legal action has now ended, there remain outstanding issues with the sustainability of the NTS that must be resolved urgently, particularly as we have now moved into the period of heightened small boat crossings prior to our new accommodations and increased capacity becoming available later this year,” Cllr Gough said.

“We are now reviewing our options to ensure a sustainable and fit for purpose NTS and will continue to do everything we can to support and ensure the safety of all children arriving into our care.”

Lottie Winson