The High Court has today found that Kent County Council has acted in breach of its Children Act 1989 duties by failing to accommodate and look after all unaccompanied children seeking asylum when notified of their arrival. The High Court has also found the Secretary of State for the Home Department to have acted unlawfully in routinely and systematically accommodating newly arrived unaccompanied children in hotels, denying them the protection of a local authority corporate parent.

These important findings, set out in a judgment handed down today by Mr. Justice Chamberlain, followed an application for judicial review by ECPAT UK of the treatment of unaccompanied children made on the 9^th June 2023. Permission was granted to ECPAT UK on 7 July 2023 for an urgent hearing of the issues.

This outcome confirms what ECPAT UK has consistently said, that this practice of housing unaccompanied children who arrive in the UK entirely outside any statutory child protection safeguards, is unlawful and cannot be described as an emergency response two years on.

With many other children's and refugee charities ECPAT UK has consistently called for an end to normalising the systematic and unlawful denial of protection to children on arrival. A High Court judge has agreed and confirmed ECPAT UK’s long-held position and condemned the practice as exceeding the proper limit of the Home Secretary’s powers.

The judgment reaffirms the primacy of duties owed by local authorities to all children who require looking after, irrespective of their immigration status, movingly emphasising in his judgment that:

 ‘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.’

In so finding, the judge unequivocally restated the legal obligations that local authorities owe to children housed in hotels in their areas, including the obligation to take all necessary steps to safeguard their welfare and safety by exercising their duties under Part 3 of The Children Act 1989, to assess their needs and to provide them with suitable accommodation and other support and protection measures.

The collective and individual failures committed by Kent County Council and the Secretary of State resulted in hundreds of children going missing and many trafficked for criminal exploitation. The High Court is due to decide, at today’s hearing (27^th July 2023) what the council and the Secretary of State must now do to urgently remedy their unlawful acts so that unaccompanied children arriving in the UK will not continue to suffer the same detriment.

Patricia Durr, CEO of ECPAT UK (Every Child Protected Against Trafficking), said:

“This judgement powerfully reaffirms the primacy of the Children Act 1989 and our child welfare statutory framework which does not allow for children to treated differently because of their immigration status. 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.

Despite the recent passing of the Illegal Migration Act 2023, which will deny unaccompanied children the right to claim asylum, amongst other hugely damaging provisions, this judgement 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.

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 Bruckhaus Deringer LLP 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.”

ECPAT UK was represented by Martin Westgate KC, Shu Shin Luh and Antonia Benfield of Doughty Street Chambers and Freshfields Bruckhaus Deringer LLP.

—ENDS—

Notes to editors:

1. ECPAT UK press contact: [email protected]and 020 7607 2136
2. Charities wrote to Ministers to highlight these concerns as early as 2021
3. Previous ECPAT UK report from June 2022 highlighted these concerns
4. Charities letter to the Prime Minster in January 2023
5. Children’s charities including the NSPCC and Barnardos wrote a joint statement calling for care for every child in need under the Children Act 1989 in March 2023
6. High Court judgement in the case
7. ECPAT UK v Kent County Council and Secretary of State For The Home Department [2023] EWHC 1953 (Admin) Case