The King on the application of Ecpat UK (Every Child Protected Against Trafficking) v Kent County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 27 July 2023 |
| Neutral Citation | [2023] EWHC 1953 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2136/2023, CO/2399/2023 and CO/2459/2023 |
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and
[2023] EWHC 1953 (Admin)
THE HON. Mr Justice Chamberlain
Case No: CO/2136/2023, CO/2399/2023 and CO/2459/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Martin Westgate KC, Shu Shin Luh and Antonia Benfield (instructed by Freshfields Bruckhaus Deringer LLP) for ECPAT UK
Stephanie Harrison KC, Ollie Persey and Georgina Rea (instructed by Bhatt Murphy Solicitors) for Brighton and Hove City Council
Hugh Southey KC and Azeem Suterwalla (instructed by Bevan Brittan LLP) for Kent County Council
Deok Joo Rhee KC and Benjamin Tankel (instructed by Government Legal Department) for the Secretary of State for the Home Department and the Secretary of State for Education
Hearing dates: 20 and 21 July 2023
APPROVED JUDGMENT
Introduction
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. They discharge it in a variety of ways, depending on the needs of the child concerned, for example, by placing children with foster parents or in registered children's homes or other appropriate accommodation under the supervision of a social worker. The common feature of these arrangements is that the children are, to use the statutory term, “looked after”, and not simply given a roof over their head. A detailed legislative regime requires the local authority, as “corporate parent”, to assess each child's social, educational and health needs and make plans to meet them.
In recent years, large numbers of unaccompanied children have arrived in the UK and claimed asylum, most having crossed the Channel in small boats. They are referred to as unaccompanied asylum-seeking children or, as the parties have called them, “UASC”. Acronyms can be helpful, but they can also divert the reader's attention from something important. I shall refer to these children as “UAS children”. All have travelled long distances. Some have been abused or mistreated in their country of origin or on their journey here. Some are victims of human trafficking. Many speak little or no English and are ill-equipped to navigate life as an asylum-seeker in the UK. As a cohort, they are especially vulnerable.
Because almost all of these children enter the UK in Kent, the local authority responsible for accommodating and looking after them in the first instance is Kent County Council (“Kent CC”). Like every other local authority, Kent CC is also responsible for looking after children who already live in its area. Looking after children in care is resource intensive. There are limited numbers of social workers. At various times, the numbers of children in Kent CC's care have reached what it considers to be the limit at which its children's services can continue to operate safely. It has responded by announcing that it will no longer accept newly arriving UAS children into its care, while continuing to accept other children.
The last such announcement was on 11 June 2021. The Education Secretary then considered whether to exercise the power to direct Kent CC to comply with its statutory duties and Kent CC threatened judicial review proceedings against the Home Secretary. After an exchange of correspondence, the Education Secretary decided not to make such a direction and Kent CC decided not to bring proceedings. In September 2021, Kent CC and the Home Secretary agreed a protocol (“the Kent Protocol”), which sets out how Kent CC will deal with UAS children in the future. It has never been published but was disclosed in the course of this litigation.
The Kent Protocol reflected and formalised the establishment of a new Reception and Safe Care Service (“RSCS”), partly funded by the Home Secretary. Through the RSCS, Kent CC agreed to accept a capped number of UAS children into its care pending their transfer to other local authorities under the National Transfer Scheme (“NTS”), a scheme made by the Home Secretary under s. 72(1) of the Immigration Act 2016 (“the 2016 Act”) for the transfer of social services functions between local authorities. The NTS itself operates according to a protocol (“the NTS Protocol”).
The Home Secretary responded to Kent CC's “derogation” from its statutory duties by commissioning hotels to accommodate UAS children outside the care system altogether. The use of hotels started in July 2021, before the Kent Protocol was agreed, and has continued ever since. In total, more than 5,400 UAS children have been accommodated in hotels, of whom 32% were under 16. Some 1,700 were housed at Langfords Hotel in Hove. The remainder were sent to other hotels in Kent, East Sussex, London, Oxfordshire and Warwickshire. The children remain in hotels while a local authority is found that is prepared to offer them a placement under the NTS. While in these hotels, the children are offered some support in addition to accommodation and food, but they are not “looked after” and have no “corporate parent”.
Different figures were given for the average length of time spent by UAS children in hotels before transfer to the care of a local authority. Brighton & Hove CC said in evidence that, at Langfords Hotel, the average stay was 30 days, though a significant number were staying for as long as 60 days. The Home Secretary's counsel said on instructions that the average stay at that hotel was in fact 23 days. Across all hotels, the average stay has fluctuated between 9 and 20 days. Some stays are considerably longer than these averages.
According to data given to Parliament on 3 April 2023, 447 UAS children had by that time gone missing from these hotels, mostly within 72 hours of arrival; and 186 were still missing. At the time of the hearing, 154 were missing. They are mostly 16 or 17-year olds but they also include 11 children aged 15, a 14-year old and a 12-year old. Neither Kent CC nor the Home Secretary knows where these children are, or whether they are safe or well. There is evidence that some have been persuaded to join gangs seeking to exploit them for criminal purposes. These children have been lost and endangered here, in the United Kingdom. They are not children in care who have run away. They are children who, because of how they came to be here, never entered the care system in the first place and so were never “looked after”.
As at 17 July 2023, 218 UAS children were being housed in hotels in Kent and elsewhere. The Home Secretary concedes that these hotels are unsuitable for UAS children, but says there is no alternative. No children are currently at Langfords Hotel, but the Home Secretary has said that she is “standing up” this hotel in anticipation of further UAS children arriving in the coming days and weeks. Brighton & Hove City Council (“Brighton & Hove CC”), the local authority for the area, considers that Langfords Hotel is not only unsuitable but also unsafe.
The claims and issues
There are three claims for judicial review. The first is brought by ECPAT UK (Every Child Protected Against Trafficking) against Kent CC and the Home Secretary. The second and third are brought by Kent CC and Brighton & Hove CC respectively, in each case against the Home Secretary as defendant. In Brighton & Hove CC's claim, the Education Secretary and Kent CC are interested parties. In Kent CC's claim, Brighton & Hove CC is an interested party.
At a directions hearing on 7 July 2023, Linden J identified certain preliminary issues common to all claims, which he ordered to be tried on a highly expedited timetable:
(a) Whether it is unlawful for newly arrived UAS children to be accommodated by the Home Secretary in hotels instead of in the care of the local authority where they first arrive and are physically present, pending any transfer under s.72 IA 2016? ( Issue 1)
(b) Whether the Home Secretary is unlawfully failing to comply with s. 72 IA 2016 in that:
(i) it does not confer a power to commission the use of hotels to accommodate relevant children outside the statutory Children Act 1989 (“CA 1989”) framework or to create an NTS Protocol that permits such an arrangement, where relevant children will not be “in the care of a local authority”?
(ii) it provides the power to prepare a scheme for transfer of functions and responsibility of relevant children between local authorities, and does not permit a scheme whereby the SSHD transfers relevant children from a local authority that has not exercised its functions or responsibilities to the area of another local authority?
(iii) it cannot be exercised to absolve a local authority from performing any part of its CA 1989 functions and responsibilities toward a relevant child?
(iv) by failing to exercise her power under s. 72 IA 2016 to implement a scheme which clearly directs local authorities who have a UASC population below their 0.1% threshold to accept the transfer of UASC in a timely manner, the Home Secretary is acting contrary to the statutory purpose of the IA 2016 and/or the CA 1989 and/or in a manner which frustrates the statutory purpose ( Padfield v Ministry of Agriculture [1968] AC 997)?
( Issue 2)
(c) Whether the Home Secretary is unlawfully failing to comply with the express terms of the NTS...
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