Following a further High Court hearing in the case of ECPAT UK v Kent County Council and Secretary of State For The Home Department [2023] EWHC 1953 (Admin) Case held on 17th August 2023, Mr Justice Chamberlain has declared that Kent County Council (Kent CC) was and is acting unlawfully, in breach of its duties under the Children Act 1989, by failing to accommodate, and then look after, all unaccompanied children notified to them by the Home Office.  This declaration asserts the key tenet of the judgement served on 27th July.

The Judge held it was necessary to mark Kent CC’s unlawful conduct by a specific declaration given that the local authority continues to turn away newly arrived unaccompanied children who are otherwise entitled to be looked after by the local authority.

Further to the previous order of the court dated 1st August, the agreement between Kent CC and the SSHD known as ‘the Kent Protocol’ which permitted a cap on the numbers of newly arrived unaccompanied children for which Kent CC took responsibility, is now quashed.

Evidence given at the hearing was that a number of children were still in hotels awaiting transfer to the care of a local authority so the court has  ordered a further suspension of its quashing of the National Transfer Scheme Protocol in so far as it permits the Home Secretary to make arrangements for the direct transfer of children to local authority care, to allow for those remaining children to be transferred.  The suspension is once again subject to conditions which include that children should be transferred within 5 working days.

Mr Justice Chamberlain has ordered a further hearing to take place on 15th September to consider evidence to be filed by both defendants that all steps have been taken to ensure that each unaccompanied child arriving in Kent is accommodated and looked after by Kent County Council under the Children Act 1989 and that the conditions of the suspended order have been complied with.

The court will also examine whether and to what extent Kent CC is treating unaccompanied children differently by refusing to take them into care whilst continuing to accept their duties to other children.

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

“We are pleased that the High Court has made another order in this case and that it continues to retain oversight of the implementation of its judgement, to ensure that children currently in hotels are safely looked after by local authorities under the Children Act 1989 and that neither central nor local government departments act outside of the statutory child welfare framework and duties towards all children under The Children Act 1989. Notwithstanding, it should not be necessary.

It is shocking that it has taken litigation by a small charity like ours to end the unlawful practice of the Home Secretary and Kent County Council, which has meant thousands of children denied care on the basis of their immigration status and too many remain missing at risk of significant harm as a result. We will continue to defend the rights of every child in the UK to live free from exploitation and to access the care and protection they are entitled to under the law.”

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


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: ECPAT UK v Kent County Council and Secretary of State For The Home Department [2023] EWHC 1953 (Admin) Case