Wednesday, 5^th June 2024

The High Court has issued its final ruling in the case brought by ECPAT UK on the use of hotels to accommodate unaccompanied children. The judgment, once again, emphasises that Kent County Council cannot derogate from its duties under the Children Act 1989 and that both the Home Office and Kent County Council should take all steps to ensure that the unlawful situation never arises again.

The use of hotels for unaccompanied children was found unlawful in the judgment handed down on the 27 July 2023 in the case brought by ECPAT UK last summer. A subsequent judgment found the Home Secretary’s decision-making in relation to the National Transfer Scheme (NTS) irrational because it failed to accept and take account of its responsibility in Kent CC’s unlawful failure to discharge its duties to take all unaccompanied children into care.  

In this new decision, the court highlighted the use by Kent CC of what it calls “Section 11 notices” to indicate that it can no longer safely accommodate children. These were being issued by Kent CC to indicate that it could no longer safely accommodate children. Mr Justice Chamberlain stated these notices have “no apparent statutory basis” and ECPAT UK’s legal counsel referred to them as a “legal fiction”. The judge goes on to clarify that:

“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.”

Following a previous order of the court for the Home Office and Kent CC to submit an Action Plan setting out what they will each do to ensure the situation does not arise again, the decision also addressed some remaining conflicts between the two defendants, in particular the action required of the Home Secretary when the final trigger point is reached in the Emergency Response Plan (itself, a feature of the Action Plan). In particular, 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 CC. The decision is clear that both parties will have to keep the plan under constant review because of their joint responsibility.

Regarding the plan to improve the NTS, the judge suggests some refinements could be made, yet the decision is clear that the specifics of the NTS are outside of the court’s competency for the purposes of granting relief, and therefore no additional order was made on these matters.

This is the fourth judgment in this case and follows a series of mandatory court orders. The oversight that the court has retained throughout is unusual but not without precedent. The court considered close supervision was necessary in this case to allow it to monitor the action taken by the defendants to comply with its judgment given the history and background to the case:

“There were two main reasons why it was necessary and appropriate for the court to continue to supervise compliance with its orders. First, the unlawful state of affairs the subject of my Judgment no. 1 placed at serious risk of harm a large number of vulnerable children. Second, this state of affairs could not be remedied by any one public authority; it required concerted action by two, each of which had spent a considerable time blaming the other. There was a serious risk that, without continued supervision, the impasse would continue, to the detriment of the UAS children arriving in Kent.”

 

This lengthy litigation has produced substantial outcomes for unaccompanied children which ECPAT UK endeavoured to represent. These have been:

1.     The end of Kent CC’s failure to comply with its duty to care for all children in its area that are notified to it; and the end of the Home Office’s practice of accommodating children in hotels outside of the care system.

2.     The closure of all hotels and moving children out of hotels and into care.

3.     Confirmation that all children in need, regardless of their immigration status, must be looked after by local authority children’s services according to the law and with no exceptions. 

4.     Improvements to the NTS: including strengthening the escalation process when local authorities fail to accept without good cause children that are referred to them; targeted engagement with local authorities with a history of delays in transfer, and an extension until at least 30 September 2024 of the use of incentivised funding for transfers from Kent CC within 5 working days.

5.     Additional capacity and resources provided to Kent CC amounting to £46.3 million extra funding and a promise of more if needed to prevent the situation arising again.

6.     A commitment from the UK Home Office that it does not intend to implement measures in the Illegal Migration Act 2023 to directly accommodate unaccompanied children.

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.

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.”

ECPAT UK is represented by Shu Shin Luh and Antonia Benfield of Doughty Street Chambers and Freshfields Bruckhaus Deringer LLP. 

Read the full judgement here: R (ECPAT UK) v Kent CC, SSHD [2024] EWHC 1353 (Admin)

—ENDS— 

Notes to editors: 

ECPAT UK press contact: [email protected] and 020 7607 2136 

1. Full briefing on the legal cases and remaining challenges
2. Previous ECPAT UK report from June 2022 highlighted these concerns of children going missing from Home Office hotels  
3. Previous ECPAT UK v Kent County Council and Secretary of State for The Home Department [2023] EWHC 1953 (Admin) Case
4. Previous Kent County Council -v- Home Secretary (judiciary.uk)