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J (Child Refugees) [2017] EWFC 44

Application for care orders in respect of two young unaccompanied asylum seeking boys. Consideration given to the relevant legal principles and the respective advantages and disadvantages of accommodation under s20 of the Children Act 1989 or a care order in these circumstances.

The application before the court was for care orders in respect of two young boys (believed to be 10 and 9 years old), with a care plan for them to remain in local authority long term foster care. Very little was known about the boys' family, background and the circumstances of their arrival in England, save that they came from Afghanistan (where members of their family, including their mothers, remained), and had  travelled across Europe, via the Calais 'jungle' into England. Their asylum applications were still in the early stages of processing with no obvious time scales for resolution. After a brief unsettled period, the boys settled into the care of their carers, and the local authority was satisfied that this was the best long term placement for them.

Relevant principles
Habitual residence
This was one of the very rare cases where the court was satisfied it had jurisdiction under Article 13 of the Brussels Convention, these being children without a habitual residence. The court held that they stopped being habitually resident in Afghanistan 6 months after they left the country but had never become habitually resident in England; "the danger and impermanency of the transit and the arrival without any ties in a new country have none of the characteristics of a habitual residence" [16].

The court was satisfied that threshold was met, reminding itself that the relevant test was the attribution of the harm to the parental behaviour, not the parents' culpability [17]. It held that the children had suffered significant harm in being sent out of Afghanistan without any parental protection and the fact that they were sent for their own protection, and the fact that they may have suffered worse harm by staying, did not mean they had not suffered significant harm by going.

Section 20 vs Care proceedings
The court acknowledged the risks of abuse / misuse of s.20 accommodation in more 'traditional' proceedings where the parents of the relevant child were on the scene and engaged in proceedings. It was not necessarily so clear cut in cases such as this where there were no family members involved. The court set out a 'balance sheet' of the respective advantages and disadvantages of s.20 versus care proceedings [19 - 23] but declined to 'identify where the dividing line might fall' as it was fact specific [18]. In this case the court held it was undoubtedly correct that care orders were sought particularly in light of the on-going support the carers were likely to require.

Special Guardianship Order
The court touched briefly on the possibility that in due course the foster carers might apply for a SGO. Without pre-empting or prejudging such an application the court did however note that whilst the situation in Afghanistan at present precluded contemplation of the boys' return, or even any proper investigation into their family and background, that might not necessarily always be the case, and it was crucial for the boys' identity that the many unanswered questions be answered. To that extent the court acceded to the Guardian's request that they be allowed to re-enter the scene in the event such an application were made and said that it should be listed before a S.9 judge.

The care orders were made.

Summary by Esther Lieu, barrister, 3PB

Neutral Citation Number: [2017] EWFC 44
Case No. PR16C00567


35 Vernon Street

Date: Monday, 23rd January 2017



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In the matter of:


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Transcribed from the Official Recording by
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Counsel for the Local Authority:  MR. MICHAEL JONES
Counsel for the Children: MS JADE ABRAHAM
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1. This judgment contains some observations on the circumstances in which it may or may not be appropriate for a local authority to bring care proceedings in relation to unaccompanied child refugees: see paragraph 14 onwards.

2. This is an application for care orders to be made in relation to two boys to whom I will refer as J and T.  They are believed to be ten and nine years old respectively or thereabouts, and J is believed to be T's uncle.  The court today is being asked to make final care orders on an application that was brought on 21st October 2016, and in doing so to approve care plans that have been prepared and refined by the children's social worker and the team manager, certified by the independent reviewing officer, and supported by the Children's Guardian. 

3. The circumstances in so far as they are known are unusual, but not, sadly, unprecedented.  Such information as we have comes entirely from the boys themselves.  There is no particular reason to think that it is not true, but a good reason to believe that it is probably incomplete. 

4. J and T are believed to come from North West Afghanistan where they lived in a village with T's father being J's older brother.  Their mothers are thought to be still living there.  J's father is said to be deceased and T's to be missing.  There may be other young family members elsewhere in Europe.  The area is currently in a state of effective war and the children speak of frightening oppression by the Taliban towards their family, and generally. 

5. It is thought that in April 2016 the children were somehow sent out of Afghanistan, whether by their mothers or by another family member is not known.  In some way they crossed Asia and the Middle East and Europe and ended up in the refugee camp at Calais, known as "The Jungle", on 18th August 2016, having travelled a long distance with other refugees by lorry.  It appears that these children lived together in a tent without any adult being responsible for them for about four and a half months.  

6. The next that is known is that they arrived on 18th August in the North West, alone but well- dressed.  They were taken into care and placed immediately with a foster carer from whom they ran away after a day.  The following day they were placed with a different agency foster family out of the immediate area, where they have remained.  Their language is the Pashto language, but they are learning English rapidly.  The carers have a Pakistani background and so share many cultural characteristics, but they speak a different language.  The boys are now attending school and enjoying it, but the carers' task has been an anxious one.  In the first place, the children were plainly traumatised by their experiences, which is hardly surprising.  They have missed their mothers, been through goodness knows what sort of experiences on the road and in the camp, and are now faced with a completely alien world into which they have to adapt.  In October, J was briefly admitted to hospital with convulsions that are thought to have been the outcome of intense anxiety.  There has been a moment in November when he expressed unhappiness with the placement, but he withdrew it, and there has been an issue which I am satisfied has been dealt with in relation to the behaviour of a relative of the foster family, unconnected to these boys. 

7. The evidence and the care plans show the steps that have been taken to verify the boys' stories, and in particular to connect with their mothers.  The name of the village has been given, but at the present time it is simply not possible for investigations to be made on the ground and, indeed, if these children were, as seems more than likely, sent out for their own protection, such investigations could, indeed, be dangerous for others.  Therefore, at the moment no other family members have been notified of these proceedings. 

8. The matter came before His Honour Judge Booth sitting as a section 9 judge on 8th November.  He made interim care orders accepting the view of the Local Authority that the court had jurisdiction under article 13 of the Brussels Convention, these being children without a habitual residence.  Those conclusions now fall to be reconsidered in the light of fuller information today, and understandably the Local Authority raises the question of whether the court considers its approach to have been a proper one in a case of unaccompanied asylum seeking children. 

9. So far as that is concerned, the children's asylum applications have not got very far at all.  I do not believe they have even had their initial screening interviews.  That is therefore something that may stretch some way into the future, and there is no doubt that these children need to be settled and supported and provided with a family life here.  Indeed, there is no alternative. 

10. During the course of discussions with counsel I raised a number of questions about the details of the care plan, which were all answered to my satisfaction and to the satisfaction of the Guardian.  The care plan provides for the children to remain in their current foster home, for that foster home to be assessed during the course of this summer as a long term foster home and for the possibility to be held in mind that at some point in the future a special guardianship order may be the appropriate outcome.  It is this aspect of the matter that has caused me the most thought, even though it does not arise for a decision today.  I mention it so that others who may be concerned on the boys' behalf in future do not lose sight of it. 

11. At one point, when speaking to the Guardian, J spoke wistfully about his former life, referring to his village as a beautiful place with orchards and saying that if it had not been for the Taliban he would not have left it.  Given the situation in that country over recent years, it may be hard to be optimistic, but whatever legal order may be made for the benefit of the boys in future, I hope that any improvement in the local situation that might make it safe to investigate their local origins will be exploited.  The fact that the evidence and the outcome is all one way at the moment does not mean that that will always be the case, and even if the boys' future is to lie in England, that is not their whole story.  Among their emotional needs will be a need as they grow up to make sense of what happened to them and why.  At the moment it is very hard to give them good answers, but that may not always be the case.  With that in mind, I will support the Guardian's request to be given the opportunity to re-enter the scene if there are future proceedings concerning the boys, and in particular if an application for a special guardianship order is made.  It may very well be an appropriate application at the right time, but I sympathise with the position of the foster carers who will need proper social work support under a care order until the boys' position in their household is assured, and in particular until their asylum status is known. 

12. Therefore, that may be a process that cannot be rushed and if a judge in future is faced with an application, I would recommend that the case was transferred to a judge sitting under section 9 of the Senior Courts Act so that there can be confidence that the difficult issue of the boys' background is not lost from sight if they are being handed over into a more private family framework.  For the final time, I make the point that the absence of the boys' families represents to my mind the presence of a very big issue for them as they progress towards adulthood, and they will need people who are alert to any possibility, even if it is just news that family members are safe and well. 

13. In all of those circumstances, I have no hesitation in making the care orders that are sought and of approving the accompanying care plans into which a great deal of thought has clearly gone. 

14. What then remains is the suggestion of the Local Authority that the court considers this case in a broader context.  It happens to be the only, I think, case of its kind in this particular local authority but there are many similar cases in other parts of the country, particularly in the South East, and Local Authorities face a sometimes difficult decision as to how to respond. 

15. The question first arises as to whether such children can properly be accommodated under section 20 of the Children Act, or whether the Local Authority is under an obligation to bring care proceedings.  In this case, the threshold criteria have undoubtedly been crossed because the children have certainly faced the risk of significant harm and have, indeed, suffered significant harm at the time the proceedings were brought as a result of being sent across the world without any parental protection.  Whether the children are to be described as abandoned or just sent out into the world makes no difference.  It also seems to me that the fact that the children may have been sent out of Afghanistan for their own benefit does not prevent the threshold for care proceedings being met.  That was a decision that was taken either by the parents or the parents were not in a position to exercise parental responsibility so that it was taken by others.  The fact that the children might have suffered worse harm by staying does not mean they have not suffered significant harm and risked suffering significant harm by going. 

16. Mr Jones representing the Local Authority has prepared what is, if I may say so, an excellent, clear analysis of the issues of jurisdiction and threshold and the situation of unaccompanied asylum-seeking children.  I need not say more about the question of jurisdiction than that this is one of those rare cases in which article 13 is to my mind engaged.  I am satisfied that the children's' habitual residence in Afghanistan had expired six months after they left.  I am satisfied that the children having arrived in August have none of the characteristics of being habitually resident in England two months later.  In the vast majority of cases, as was stated by the Supreme Court case of B (A Child) [2016] UK SC 4, a child's habitual residence will be rather like a seesaw, either in one place or after the tipping point in the other.   However, that analysis does not lend itself easily to asylum-seeking children in cases of this kind.  It is the tragedy of children in this position that they lose their habitual residence without gaining another.  The danger and impermanency of the transit and the arrival without any ties in a new country have none of the characteristics of a habitual residence.  These children are now, and since the application was made, rapidly establishing a habitual residence in this jurisdiction, but that is not the question for the court.  The question is: how did matters stand in October?  Although there has been a case under section 13, namely F (Habitual Residence) [2014] EWFC 26, a case of my own with very different facts, the essential rootlessness of the situation of the children in each case led to the conclusion that they lacked a habitual residence.  Therefore, this court has undoubted jurisdiction.

17. Returning to the question of the threshold, Mr Jones reminds me that the relevant test is the attribution of the harm to the parental behaviour, not the parents' culpability. 

18. Turning finally to the issue that faces many Local Authorities who are taking up responsibility for unaccompanied children, the submission made by Mr Jones is that the question of whether it is appropriate to apply for a care order will depend upon the facts of the individual case.  I agree with that.  This relatively short application is not the occasion to define when applications should be made to the court or not, to define the limits of accommodation under section 20, or to try to identify where the dividing line might fall.  This is a case in which the Local Authority's decision to take proceedings for the protection of children as young as ten and nine with no relatives whatever in this country so far as it was obviously correct.  There may be many other cases, however, in which much older children fall into the hands of Local Authorities where accommodation under section 20 would be perfectly appropriate, because the arrangements in place for their support are relatively straightforward and need no oversight from the court or input from a litigation friend or children's guardian. 

19. I will, however, take advantage of the thought that has gone into the presentation of this case by referring to a schedule of the advantages and disadvantages of section 20 accommodation and care orders in so far as they might apply in cases of this sort.  I do so in case, firstly, to carry forward the work and in case it should be useful to others. 

20. Starting with accommodation under section 20, I the benefits that flow are: firstly, the provision of accommodation; secondly, the possibility of a child in need plan; thirdly, the availability of support under the leaving care legislation when the child reaches maturity; and fourthly the availability of looked after child reviews and an independent reviewing officer. 

21. Turning then to the benefits that may arise under a care order, they are these: firstly, as above, the provision of accommodation; secondly, by distinction, support under a formal care plan that has been approved or at least considered by a children's guardian and by a court;  thirdly, again, the children would be entitled to leaving care legislation and support; fourthly, they would be entitled again to looked after reviews; fifthly, the children would have priority in relation to the obtaining of specialist therapy or medical care.  They would undoubtedly be a first call on the Local Authority's resources if subject to a care order and, depending upon the education legislation, quality for priority in the allegation of educational resources.  Next, the Local Authority will have parental responsibility for the children, allowing it to make and carry through decisions about care, medical treatment, education and so forth.  Next, if the children were to leave their placement, the Local Authority would be under a duty to find them with whatever measures were to hand.  Next, the Local Authority holding a care order would be obliged to take an active role in relation to the asylum applications of such children, and finally, a care order would be most likely to provide the children with a plan for a permanent and established family life.  Considering the benefits, it will easily be seen that the advantages of a care order may particularly apply to younger children or to children with unusual or particular needs. 

22. The disadvantages of each option are to some degree the other sides of the coin of advantage, firstly as to section 20: (1) no one has parental responsibility or is able to exercise it; (2) there is a risk that the children will fall down the queue for such services as may be available; (3) although section 20 can be used in cases where children have been abandoned, that is not its core function; (4) living under section 20 throughout one's middle and later childhood may lead to a lack of purpose in planning for the future and looser responsibilities should the children, for example, abscond.  Without a care order or the presence of just section 20 accommodation, there may be more uncertainties than need be. 

23. As against that, the disadvantages of a care order are few.  It may potentially stigmatise the children to be accompanied by such an apparatus, and secondly, as a matter of principle it is a more interventionalist order that accordingly needs to be justified. 

24. That is the balance sheet collected by Mr Jones, to whom I am grateful. 

25. It will be apparent that cases of this kind, however, cannot be read alongside the very different class of case where Local Authorities harbour children under section 20 where they have, in effect, removed them from their parents for child protection purposes and where the parents are at hand and, in many cases, wanting the children back.  In those cases, the instances of judicial and other guidance in favour of bringing care proceedings without delay are numerous, but they do not, I think, apply in circumstances of this kind.  It is neither in the interests of individual children, nor, I think, in the wider public interest for Local Authorities to feel that they have to bring care proceedings to no good purpose, as would be the case if every unaccompanied asylum-seeking child was to be brought within care proceedings. 

(End of judgment)