Kent County Council cannot avoid its duty to find placements for unaccompanied asylum seeking children

In the latest and last judgment in some fairly complex litigation around the use of hotels to accommodation and other issues, the High Court seems to have finally got to a point with Kent County Council where they accept that they cannot get around the duty to find a placement for every unaccompanied asylum seeking child who arrives until the child can be transferred elsewhere. The case is ECPAT UK (Every Child Protected Against Trafficking) v Kent County Council [2024] EWHC 1353 (Admin).

History of the litigation

There are three linked cases – one where ECPAT is the claimant, Kent County Council the defendant and the Home Secretary an interested party. The second where Kent County Council is the claimant, the Home Secretary is the defendant and Brighton and Hove City Council is listed as an interested party. The third with Brighton and Hove City Council as the claimant, the Home Secretary as the defendant and the Education Secretary and Kent County Council as interested parties.

The claims targeted various processes and decisions, including how Kent County Council dealt with unaccompanied asylum seeking children and for transfers of children between local authorities under the National Transfer Scheme.

In July 2023 the High Court concluded that Kent County Council was acting unlawfully by failing to accommodate and look after unaccompanied asylum seeking children. It was also held that the Home Secretary was acting unlawfully by agreeing a cap on the number of children who Kent County Council would accept responsibility for and also by “systemically and routinely accommodation” these children in hotels.

The relief granted by the High Court in July was an order quashing the agreement to cap numbers in Kent, and to also quash the part of the National Transfer Scheme which allowed the Home Office to transfer responsibility for the children to another local authority without its participation. The effect of both orders was suspended under section 29A(1)(a) of the Senior Courts Act 1981 pending a further hearing on 17 August 2023.

At that hearing, the suspension of the order was continued. A further relief hearing took place on 15 September 2023 and a mandatory order was made for the Home Secretary to “take all possible steps” to move children out of hotels into the care of a local authority by 22 September 2023. If any children were moved into a hotel after that date then all possible steps must be taken to move them into care within five working days.

In the next substantive decision on 28 November 2023, the High Court dismissed four of Kent County Council’s challenges to the National Transfer Scheme but held that the Home Secretary’s decision making from December 2021 to 27 July 2023 in relation to the scheme was unlawful. In that decision the judge said that if the Illegal Migration Act 2023 provisions were not to be commenced then “rationality will require a plan to be prepared to ensure that the use of hotels to accommodate UAS children ceases and does not resume.”

Following another relief hearing that took place on 15 December 2023 the judge ordered Kent County Council and the Home Secretary to file and serve an agreed action plan by 31 January 2024. The plan was “to include short-term and long-term measures, costings and specific timetable as to when these outcomes are to be achieved”.

On 31 January 2024 the Home Secretary closed the last of the hotels that were being used to accommodate the children. An extension of time for filing the action plan was granted until 1 February 2024 and this was filed. One of the provisions required the parties to finalise an emergency response process in case Kent County Council reached capacity with its placements.

On 27 February 2024 Kent County Council applied for a mandatory order for it and the Home Secretary to file and serve an emergency response plan as it was concerned that it would not be able to safely accept new arrivals. Kent County Council said it had been unable to agree the contents of the plan as it did not specify what actions would be taken in the event that Kent could not find a safe placement for a child.

A National Transfer Scheme plan was filed on 29 February 2024 and this included shortened timescales for escalation processes and work to improve transfer times including incentivised funding.

On 6 March 2024 the Home Secretary agreed to provide additional funding to Kent County Council, estimated at £47.63 million for the year 2024-25.

The latest hearing

Another hearing took place on 14 March 2024 to make a decision on the mandatory order on the emergency response plan, as requested by Kent. Kent also raised concerns about the National Transfer Scheme plan including that transfer times were too long, that the gap between arrivals and transfers could not be filled by private placements and there was no consideration of the impact of implementation of the Illegal Migration Act.

The Home Secretary argued that matters had moved on significantly since the first judgment and the use of hotels had stopped. It was pointed out that the court had previously recognised that rolling judicial review is rarely justified.

In response to Kent’s request for a mandatory order for the emergency response plan, the Home Secretary said that the purpose of that plan was to address the situation where Kent approaches capacity and that Kent could not refuse to accept a child to whom it owes a duty under section 20 of the Children Act 1989. The Home Secretary said that Kent “must ensure that it can accommodate all UAS children arriving”.

ECPAT said that in asking for a mandatory order requiring the emergency response plan to be agreed, Kent was asking for provision to be made for a situation where it “reasonably considered” that it could not safely discharge its duties to an unaccompanied child. This would be a breach of its duties under the Children Act 1989 as already found to be unlawful in the first judgment in this litigation.

Kent sought to rely on section 11 of the Children Act 2004 and had apparently in January 2024 started refusing to accept children into its care by issuing “section 11 notices”, described by ECPAT as “a complete legal fiction”.

Both the Home Secretary and ECPAT submitted that there was no geographical limit to the location of private placements that Kent could use. Brighton and Hove City Council opposed the mandatory order sought by Kent for the same reasons as the Home Secretary and ECPAT.

Following the hearing, further discussions between Kent County Council and the Home Secretary narrowed the areas of dispute. An order was sought from the court in respect of the one remaining dispute which was the wording of the part of the emergency response plan that provides for a situation where Kent considers that it is unable to provide placements.

Kent sought concrete steps including penalties under the National Transfer Scheme to reduce delays, reducing the number of children Kent was expected to accommodate in the long term, therefore freeing up more short-term placements and implementing the provisions of the Illegal Migration Act 2023 that provide for the Home Office to accommodation children.

On 24 April 2024 the High Court was provided with a witness statement from the Assistant Director of Kent’s unaccompanied children’s service which said that Kent had reached the point where it considered that it could not find a safe placement for any child on 29 March 2024, 15 April 2024 and 23 April 2024.

The court’s decision

The High Court said that new legal issues had been raised in relation to the type of accommodation that could be provided and the “the subject of these proceedings have ballooned well beyond those pleaded in the original claims”. The court said that these will be better addressed in a separate claim as and when the situation renders this appropriate.

The court reiterated that:

It is important to be clear what it means to say that the s. 20 duty to accommodate and look after all UAS children when notified of their arrival by the Home Office applies “irrespective of the resources of the local authority”. It means not only that the duty applies irrespective of any lack of funds, but also that it applies irrespective of the number of placements or social workers or other staff the local authority has available. As a matter of law, non-compliance with the duty is not justified or excused by resource constraints of any kind.

The court also said that the section 11 notices used by Kent have no statutory basis and no legal effect.

The court said that it is “to be welcomed” that Kent had by this point accepted that it would not be permissible for the emergency response plan to contain provisions for what happens if Kent considered that it was unable to safely perform its duties in respect of all unaccompanied asylum seeking children. The court provided some other comments on the proposed wording but said that it expected that the parties would now be able to agree the plan without its further involvement.

The court concluded that no further relief was required and these proceedings appear to finally be at an end.

Conclusion

Further litigation is envisaged at a couple of points in this decision, potentially around further changes needed to the National Transfer Scheme as well as the issue around Kent’s ability to accommodate children outside of placements in section 22C of the Children Act 1989. Given Kent had already considered itself to be at capacity three times by the end of April this year, it is going to be crucial that the changes put in place work effectively to ensure that children are kept safe, otherwise we can expect to see everyone back in court for a fresh round of litigation.