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Duties of Local Authorities to Unaccompanied Migrant Children

Jennifer Kotilaine, barrister of 42 Bedford Row, analyses the duties of local authorities to unaccompanied migrant children in the light of the House of Lords European Union Select Committee's recent critical report on the subject.

Jennifer Kotilaine, barrister, 42 Bedford Row Chambers

We are living in a climate of uncertainty.  The UK has recently voted to leave the EU, although it is unclear what shape 'Brexit' will take. In the meantime, the EU—which still includes the UK—is facing an unprecedented humanitarian crisis in the form of more than a million migrants and refugees who are fleeing instability (and worse) at home—whether in Syria, Afghanistan, Eritrea or elsewhere. Among these migrants and refugees are children who are alone, unaccompanied by family members.  Many, though not all, of these children apply for asylum when they reach Europe. Home Office figures indicate that in the year ending September 2015, 2,564 unaccompanied children applied for asylum in the UK; a 50% increase from the year ending September 2014 (1,712).  Children are also going missing, many within hours of arriving in the EU. In January 2016, Europol estimated that 10,000 migrant children in the EU have gone missing in the past two years, warning that many of these children were being forced into sexual exploitation and slavery.

Last month the House of Lords European Union Select Committee produced a report on Children in crisis: unaccompanied migrant children in the EU which found that the needs of unaccompanied migrant children are systematically not being met—either in the UK or across the EU.  The report ends with 65 conclusions and recommendations some of which are for the European Commission, some for Member States, and some specifically for the UK and in some cases only for England and Wales. 

This wide ranging and critical report is a timely and urgent reminder that unaccompanied migrant children across the EU including the UK encounter a 'culture of disbelief and suspicion' on the part of authorities and are at increased risk of exploitation by traffickers and others.  This culture of disbelief begins with assessing whether unaccompanied migrant children are in fact children and therefore entitled to services. Some unaccompanied migrant children without documents are assessed to be older than they are. This has the effect of placing children in unsuitable conditions such as detention centres together with adults, far away from the oversight of children's services (HL report, para 55).

Central to the problems facing unaccompanied migrant children is a lack of proper communication and effective cooperation between Member States and agencies within States.  Problems of communication and cooperation are also seen in the UK itself, with the role of corporate parent effectively being split between the Home Office and Department for Education.

The purpose of this brief article is to consider local authority duties to unaccompanied migrant children already in the UK who have been assessed to be children. These duties include changes to the leaving care duties in the Children Act 1989 arising from recent restrictions put in place by the Immigration Act 2016. It will also consider the new National Transfer Scheme for reallocating unaccompanied migrant children from one local authority to another.

Coming into care: local authority duties under ss 17 and 20 of the 1989 Act
Under section 17(1) of the Children Act 1989, local authorities have a duty 'to safeguard and promote the welfare of children within their area who are in need [ . . .]  by providing a range and level of services appropriate to those children's needs.'

Unaccompanied migrant children are undoubtedly children in need: they have no one to look after them, they often have little or no English, and they have no means of supporting themselves. Without local authority support, they are (under s 17(10)(a) of the 1989 Act) 'unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development.'   Local authorities are under a duty to conduct a s 17 assessment of a child's needs within 45 days of a child being referred for an assessment (see para 60 of the Working Together Guidance 2015). In the case of unaccompanied migrant children, these referrals are most likely to be made by the Home Office.

In addition to their s 17 duties, local authorities must also accommodate unaccompanied migrant children.  Under s 20(1) of the 1989 Act 

'Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (a) there being no person who has parental responsibility for him.'

Historically some local authorities sought to evade this duty to accommodate by referring homeless young people (ie those who are 16 and 17 years old) to their housing departments to be accommodated under Part VII ['Homelessness'] of the Housing Act 1996. However, R(M) v Hammersmith & Fulham LBC [2008] UKHL 14 and R(G) v London Borough of Southwark [2009] UKHL 26 make it clear that it is not possible for a local authority to avoid its s 20 duties in this way.  The latter case confirmed the primacy of the specific s 20 duty owed to individual children over the general s 17 duty owed to children in need, along with the primacy of the Children Act 1989 over the Housing Act 1996 in providing for children in need.

Although the primacy of s 20 over other duties has now been clarified, it could be argued that—notwithstanding s 20(1)— this type of accommodation is inappropriate for unaccompanied migrant children as it leaves such children without anyone exercising parental responsibility for them. Given recent case law on children 'languishing' in s 20 accommodation before s 31 proceedings are taken (Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112) it is unclear why unaccompanied migrant children should be permitted to languish. Care orders can only be made when the threshold criteria involving parental care or control in s31(2) are met. On this basis care orders are not available to children who do not have parents. However, given the propensity for unaccompanied migrant children to be especially vulnerable to exploitation, there is a particular danger that these children could go missing from their s 20 accommodation without the local authority (or any one else) holding parental responsibility for them.  Indeed, Freedom of Information requests to 140 local authorities show that in 2015 239 unaccompanied migrant children disappeared permanently from local authority care facilities across the UK. The Independent newspaper reported on 17.04.16 that this figure was a 75% increase [on the previous year] and that 51 unaccompanied migrant children disappeared from local authority care in October 2015 alone.

The use of section 20 accommodation is a holding position which strikes an uneasy balance between the competing imperatives of the Home Office and the Department for Education.  Although on the one hand the State is accommodating the child and looking after its immediate welfare needs under the 1989 Act, the same State must also take a view on whether the child is able to remain in the county in the long term and build a life here. Kept out of the realm of care proceedings, unaccompanied migrant children do not have the benefit in England and Wales of a children's guardian to look after their interests.  (In contrast to England and Wales, Scotland has established a Scottish Guardianship Service for unaccompanied asylum seeking children and child victims of trafficking.) It is therefore perhaps not surprising that the House of Lords report recommends (at para 321) that independent legal guardians be appointed for unaccompanied migrant children:

'[W]e are persuaded by evidence from England and Wales and from Scotland that the role of guardian should be independent and should not be undertaken by social workers. We call on the Government to establish a guardianship service in England and Wales for all unaccompanied migrant children. In so doing, the Government should consider whether this service could be delivered by non-governmental organisations or civil society, with appropriate state support.'

Given that unaccompanied migrant children are effectively excluded from care proceedings, it seems this recommendation would go some way to ensuring that the welfare needs of these children are met through the objective scrutiny of an independent guardian (in the absence of the court).  As of the time of this writing, the Government's response to the House of Lords report and recommendations is awaited.

Leaving care: local authority duties under Part III of the 1989 Act
Ordinarily, care leavers can expect local authority assistance by way of advice, support, accommodation, education, training, employment, and staying put in their current foster placements (ss 23C, 23CA, 23CZA, 23D, 24A and 24B of the 1989 Act).  This assistance includes a personal advisor and a pathway plan and is available until a care leaver reaches either age 21 or, if in full time education, age 25.

However, Schedule 12 to the Immigration Act 2016 removes this assistance for care leavers who reach age 18 and either do not have leave to enter or remain, are not asylum seekers, or do not have a pending immigration application that is their first application for leave to enter or remain. The express purpose of this exclusion is, in the words of the Minister for Immigration (James Brokenshire), to 'prevent adult migrant care leavers who have exhausted their appeal rights and have established no lawful basis to remain here from accessing local authority support under the 1989 Act. [ . . .] The provisions in the 1989 Act are geared to support the needs and onward development of young adults leaving local authority care whose long-term future is in the UK. Those provisions are not appropriate to the support needs, pending their departure from the UK, of adult migrants who the courts have agreed have no right to remain here' (Hansard HC, 17.11.15 col 520, 521).

In removing local authority leaving care support from young people who have no lawful basis to remain in the UK, the 2016 Act has introduced a two tiered system which prioritises immigration control over the welfare needs of young people. Once a child leaves care, the balance between competing imperatives tips decisively in favour of the Home Office. During the parliamentary debates, it was argued that excluding certain young people from the leaving care provisions that they would otherwise be entitled to on the basis of their immigration status is discriminatory (Hansard HC, 17.11.15 col 525-6). Although this provision has now been enacted, it would be a surprise if its compatibility with Arts 8 and 14 HRA 1998 is not tested before the courts.

Those young people who would otherwise be entitled to leaving care provisions but are now excluded may nevertheless qualify for support consisting of accommodation and subsistence (in kind, cash or vouchers) in certain circumstances.  Paragraph 10 of Schedule 12 to the 2016 Act inserts a new para 10B into the Nationality, Immigration and Asylum Act 2002 setting out these circumstances:

However it is important to note that this support is not guaranteed. The Secretary of State 'may' make regulations — this does not mean that she must or indeed that she will.   There is therefore no longer a duty on local authorities to support all care leavers. And in the absence of regulations coupled with scarce financial resources, it is not expected that local authorities will be able to assist unaccompanied migrant children as care leavers who are leaving their care.  Those unaccompanied migrant children who are not supported by local authorities to regularise their immigration status whilst they are still children will find that they are not entitled to leaving care support.  There is a danger that this may introduce perverse incentives for some resource-starved local authorities not to provide this support as a way of making savings once the child turns 18.  (However a counter incentive has been introduced where a local authority seeks to transfer an unaccompanied migrant child to another local authority, as will be discussed below.)

The result of this exclusion from the care leaving provisions is that unaccompanied migrant children who are supported and protected by the State upon arrival are suddenly cast adrift, away from the local authority that has looked after them, and — in the absence of clear support and protection — the likely effect of this is that they are once again at risk of various forms of exploitation. 

Allocation of care
Local authorities have statutory duties to children in their own localities. However certain local authorities in the UK are under considerably more strain than others in looking after unaccompanied migrant children.  The House of Lords report includes figures compiled by Jo Wilding on the distribution of unaccompanied migrant children in England.  The two authorities with the most unaccompanied migrant children are the London Borough of Croydon (412 LAC, 545 care leavers) and Kent County Council (376 LAC, around 400 care leavers). These two local authorities are points of arrival of a disproportionate number of unaccompanied migrant children. Elsewhere in the UK there are local authorities who have no unaccompanied migrant children at all.

Section 69 of the 2016 Act allows for the transfer of unaccompanied asylum seeking children from one local authority to another.  A National Transfer Scheme has been in operation since 1 July 2016.  This voluntary scheme is meant to ensure a 'more even distribution of caring responsibilities across the country.' By way of encouragement, the government has increased the amount of funding it provides to local authorities looking after unaccompanied migrant children under the age of 16 (rising from £34,675 to £41,610 per child per annum).  An interim transfer protocol has been published and a new protocol will be introduced in April 2017.   A transfer flowchart has also been published.

The interim transfer protocol applies where an unaccompanied asylum seeking child presents in a local authority where the number of unaccompanied asylum seeking children is more than 0.07% of all children in that local authority. (The number of children per local authority is taken from data published by the Office for National Statistics in the Mid 2014 Population Estimates and excludes those LAC or care leavers living in a local authority who have been placed there by a different local authority). Once the 0.07% 'ceiling' has been reached, it is expected that a presenting child will be transferred to a local authority which is below the ceiling. The ceiling of 0.07% has been agreed for 2016/17 but will be reviewed each year.

Once a child has been accommodated by a local authority for more than 24 hours, the child becomes looked after by that local authority.  A decision to transfer the child out of the local authority will be taken by a social worker ideally within 48 hours of the child's arrival. The social worker must decide whether such a transfer is in a child's best interests and also when it is appropriate for the transfer to occur. Elements to consider when coming to a best interests determination are found in Annexe 1 of the Protocol and include the child's views; the child's identity; care, protection and safety of a child; situation of vulnerability; the child's rights to health and education.

Transfers will be operated by a central administration team at the Home Office which will decide which region will receive the child. A regional administration team will decide to which local authority a child should be allocated. Given the very high number of unaccompanied migrant children arriving in Kent, Kent itself will be treated as a region to allow for the transfer of children to other local authorities that are below the ceiling.  A child already residing in a local authority which is above the ceiling may be transferred. However if a child is settled and established in a local authority, the local authority may decide not to transfer as it would not be in the child's best interests.

A 'unique unaccompanied child record' must be completed for each child presenting to a local authority and must be submitted to the Home Office. The Home Office must be informed of transfer requests/acceptances and must be updated if a child has ceased to be looked after (and why). The scheme is currently voluntary but the Secretary of State has the power under s 72(3) of the 2016 Act to introduce a mandatory scheme with which local authorities will be directed to comply.

The centrality of the Home Office in the national transfer scheme may cause some concern. It appears that what on the surface may be a centralised mechanism for achieving an equitable distribution of unaccompanied migrant children across local authorities may also (or indeed actually) be a way of keeping track of these children who will inevitably grow up. Once they age out of the system they will suddenly be treated very differently. Even as children's welfare needs are being assessed and met by local authorities, their unresolved immigration status lurks in the background.

This article has only considered a very narrow slice of a huge topic, one that is described by the House of Lords as 'the greatest humanitarian challenge to have faced the European Union since its foundation'.  Insofar as this challenge is being faced by the UK, it can be argued that it is not being adequately met. And indeed, as the House of Lords report says, the needs of unaccompanied migrant children are systematically not being met. Here is our system: Unaccompanied migrant children who arrive in the UK are entitled to support for their welfare needs whilst also being monitored in respect of their immigration status.  These most vulnerable of children have no one exercising parental responsibility for them and they do not fall under the scrutiny of the court as do other children accommodated under s 20. Once these children reach the age of 18, they are no longer automatically entitled to accommodation and support as care leavers.  By virtue of their vulnerability, these children are at great risk of being exploited and going missing at every stage—before going in to local authority care, whilst in local authority care, and leaving local authority care.  The House of Lords report calls for a 'proper debate on the refugee crisis generally and on the predicament facing unaccompanied migrant children specifically.' Although the Government's response to this report is awaited, the 2016 Act already gives us a sense of what this response is likely to be.