Key duties in the Children Act 1989 apply to the children on Diego Garcia

Children Act 1989: After over two and a half years of children being held in inhumane conditions on Diego Garcia, the Supreme Court of the British Indian Ocean Territories has ruled that key safeguarding provisions of the 1989 Children Act apply to the territories.

In September 2021, a group of Tamil asylum seekers fled Sri Lanka by boat to travel to Canada. On 3 October 2021, their boat was discovered to be in distress in the British Indian Ocean Territory’s waters and was taken to shore to the island of Diego Garcia, the largest island in the territory and home to a US military base. After arrival, the group made protection claims and has since remained on the island. They have been kept in an encampment referred to as Thunder Cove Camp, which is managed by the territory’s administration and its contractors (who are at present, G4S).

It is important to note that the British Indian Ocean Territory is a separate territory and has a distinct legal jurisdiction to the UK.  There is no right of abode nor permanent population in Diego Garcia. Ordinarily, the only persons present on the island are military personnel from the US and UK, public officers of the territory’s administration and support staff for the defence facilities. There are occasional visits by scientists conducting environmental research.

For more background, see our earlier article setting out more of the history and previous litigation.

UNHCR concerns regarding the detention of children in the camp

There are 16 children currently in Diego Garcia, some as young as four years of age, who are being held in the enclosed camp. The camp is surrounded by a seven-foot-tall wired fence and G4S staff patrol the camp to prevent anyone from leaving without a security escort, even to visit the beach just 50 metres away.

Since the children’s arrival on Diego Garcia in October 2021, the territory’s Commissioner has failed to implement any legal protections to keep the children safe and protected from harm. This is despite the indefinite detention of children ranging from four to 15 years old in the camp along with at least 29 single adult men. There have been repeated incidents of gender-based violence and sexual assault.

In a report prepared by the UN High Commissioner for Refugees (UNHCR) following a nine-day monitoring visit to Diego Garcia in November 2023, the agency highlighted their serious concerns regarding the detention of children. In the final report dated 16 February 2024, UNHCR said that the use of the camp amounted to “arbitrary detention” and stated:

UNHCR is particularly concerned that sixteen children are among those detained, in conditions that are damaging to their wellbeing and development. The detention of children is deeply troubling. UNHCR’s position is that children should not be detained for immigration related purposes, irrespective of their legal/migratory status or that of their parents, and such detention is never in their best interests (paragraph III).

UNHCR referred to the severe impact the inhumane conditions in the camp have and continue to have on the children’s physical and mental states. Children do not receive timely or adequate medical treatment and the quality of the food is so poor that children are regularly underfed; one child is even malnourished (UNHCR Report, paragraphs 35 and 62).

Moreover, depression and suicidal thoughts have spread through the camp like an epidemic. Children regularly witness violent incidents of self-harm and attempted suicides and some children have expressed thoughts of self-harm or suicide themselves (UNHCR report, paragraphs 38 and 57).

In their report, UNHCR also raised serious concerns regarding the violence towards women and girls, noting that they were “made aware of several allegations of sexual assault and harassment, with alleged victims including young children” (paragraph 69). They highlight anxieties raised by children and parents about the lack of protection and basic privacy provided to women and girls in the camp; there are no physical barriers to separate the family and single male tents and, until July 2023, families were forced to share tents with unrelated single adult males.

In July 2023, in response to increasing concerns regarding the grooming and sexual assault of children in the camp, the Commissioner published the ‘British Indian Ocean Territories Safeguarding Policy’. According to the Commissioner, this safeguarding policy codified and clarified the safeguarding arrangements that had been in place since October 2021 and takes a multi-agency and multi-layered approach to safeguarding vulnerable adults and children.

The safeguarding policy is deliberately limited and has proved ineffective in providing for the proper protection of children in the camp. In their report, UNHCR said that “the [Safeguarding] policy, even if it were to be fully implemented, cannot sufficiently mitigate child protection risks in what is an entirely inappropriate environment for children” (paragraph 46).

Judicial review claim brought by parents: applicability of sections 17 and 47 of the Children Act 1989

In light of the escalating concerns regarding the welfare and safeguarding of the children on Diego Garcia, two of the five claimants in these proceedings made an application for their children to become wards of the British Indian Ocean Territory’s Supreme Court on the basis that the court has an inherent jurisdiction to protect children where statutory remedies are inadequate.

Upon a private hearing taking place on 8 and 9 February 2024 in consideration of this application, it became apparent that the court would first need to determine whether certain provisions of the Children Act 1989 apply to the territory.

The Children Act 1989 underpins child welfare law in England and Wales as it established a legislative framework for child protection, in large part by the safeguarding duties outlined in sections 17 and 47. The Act has a wide-reaching impact, including placing new duties on local authorities to protect and safeguard children.

The claimants issued a claim for judicial review arguing the applicability of sections 17 and 47 of the Children Act 1989 and the breaches of the duties contained in those sections by the Commissioner (the defendant). The court listed a two-day hearing on 7 and 8 March 2024 to first determine the preliminary issue of whether sections 17 and 47 of the Children Act 1989 applied.

Section 17

Section 17(2) of the Act sets out certain duties held by local authorities towards ‘children in need’ in their area, including:

• The duty to take reasonable steps to identify the extent to which there are children in need within their area (paragraph 1(1)).
• The power to assess a child’s needs for the Act (paragraph 3).
• The duty is to take reasonable steps, through the provision of services under Part III of the Act, to prevent children within their area from suffering ill-treatment or neglect (paragraph 4(1)).
• The duty to take reasonable steps to reduce the need to bring proceedings under the inherent jurisdiction (paragraph 7 (a)(iv)).
• The duty to make such provision as considered appropriate for advice, guidance and counselling and occupational, social, cultural, or recreational activities to be made available to children in need in its area while they are living with their families (paragraph 8(a) and (b)).

Section 47

Section 47(1) of the CA 1989 imposes on a local authority the duty to investigate when it has reasonable cause to suspect that a child is suffering or is likely to suffer significant harm. It provides that, in such circumstances “the authority shall make or cause to be made such inquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare”.

The claimants’ case

The claimants argued that sections 17 and 47 of the 1989 Act applied to the British Indian Ocean Territory, making the following arguments. They relied upon the three-part test Lewis CJ set out in R (VT & others) v Commissioner for the BIOT (BIOT SC/No.3&4/2023) (‘VT’) on determining whether an English statute ought to be part of the law of the territory (paragraph 37):

1. There is no local law already in force in the territory that is inconsistent with the relevant provisions of sections 17 and 47
2. The relevant provisions apply to the circumstances of the territory and are suitable to the local circumstances of the territory, with such modifications as local circumstances render necessary.
3. The court was not required to amend sections 17 and 47 in a way that would subvert the intention of the UK legislature. The only modification required to give effect to the relevant provisions in the territory is the substitution of “local authority” with “BIOT Administration”, which is the local government of the territory.

In some respects, the territory’s administration has already accepted that it is suitable for it to assume the children protection functions of a local authority. The safeguarding policy begins by stating that “BIOT Administration upholds its responsibility to promote the safeguarding of children” (paragraph 1.1). It also appeared to the claimants that the administration asked a local authority partnership manager from the Department of Work and Pensions to advise on safeguarding matters.

There are currently 16 children in Diego Garcia who will remain there for the foreseeable future. The Commissioner has not provided any indication as to (i) the time frame in which he expects to determine the outstanding claims for international protection, (ii) the time frame in which he will be able to transfer any individual from Diego Garcia to a safe third country; or (iii) the destination to which they will be removed. This is despite repeated requests by the claimants and their legal representatives.

These 16 children, including the claimants’ children, need protection. There is, accordingly, a need to protect the welfare of vulnerable children in Diego Garcia.

Whether or not the territory’s administration is “highly sophisticated”, it must take responsibility for the welfare of children who are in its jurisdiction and under its control.

The defendant has not disapplied the Children Act 1989 or any other child protection legislation by way of a declaration made under section 4(1) of the Courts Ordinance 1983 and Gazetted by section 10 of the British Indian Ocean Territory (Constitution) Order 2004.

The claimants argued that as a result, the applicability of sections 17 and 47 of the Children Act 1989 imposed at least the following core duties on the Commissioner:

• A duty to assess a child’s needs for support to safeguard and promote their welfare (“the welfare assessment duty”)
• A duty to assess the risks to a child where there is reasonable cause to suspect that they are suffering or are likely to suffer significant harm (“the harm investigation duty”) and
• Based on the assessments (referred to above), a duty to provide reasonable support to safeguard a child from the risk of significant harm and to safeguard and promote their welfare (“the safeguarding duty”).

The defendant’s case

The Commissioner denied that the Act was applicable and suitable to the territory because Diego Garcia is a military base with no settled population and the administration is not comparable to a modern State. He maintained that the limited functions of the administration signify that “BIOT Administration” cannot easily replace “local authority” in the safeguarding provisions of the Children Act.

The Commissioner also dedicated much of his submissions to demonstrating that sections 17 and 47 of the Act are gateway provisions which draw upon a broad statutory framework with wide-ranging duties and powers that are suitable and applicable for a modern state but not to the territory.

Decision

On 2 April 2024, the British Indian Ocean Territory’s Supreme Court handed down judgment remotely, ruling in favour of the claimants on the applicability of sections 17 and 47 of the Children Act 1989 to the territory. Applying the three-part test set out in VT, Judge Obi determined that sections 17 and 47 of the Act were not inconsistent with local laws on BIOT, were applicable and suitable to local circumstances on BIOT, and did not require substantial modification to be suitable. Judge Obi concluded that the provisions set out in the Act, “to safeguard and promote the welfare of children and investigate when there is reasonable cause to suspect that a child is suffering or is likely to suffer significant harm” apply to Diego Garcia (paragraph 38).

On unsuitability, Judge Obi disagreed with the defendant’s arguments that the modifications required to apply the Act on Diego Garcia were too extensive. She noted that the application of sections 17 and 47 of the Act does not require the large-scale implementation of a social care system or a system of children’s services, as the duties under sections 17 and 47 do not demand a particular procedure or social services machinery.

Judge Obi drew attention to the administration’s recent hiring of a social worker to visit Diego Garcia as an example of the administration’s ability to discharge the protection and safeguarding duties under the Act.

While accepting that children are not usually residents of Diego Garcia, Judge Obi reiterated the claimant’s submissions that the territory’s constitutional documents, local laws passed by successive Commissioners and the draft safeguarding policy all provide for the presence of children on the islands. Judge Obi accepted the Commissioner’s submission that there have been between “zero and a very small number” of children on Diego Garcia in recent years but did not accept that the Act, therefore, does not apply. In fact, Judge Obi underscored that the current legislative framework on children creates legal vacuums and “it is implicit that the CA 1989 fills the gaps” (paragraph 52).

In summarising the above, Judge Obi returned to the rhetorical question posed by Mr Jaffey KC on behalf of the claimants: “How many children do you need for the law relating to safeguarding to be suitable?” (paragraph 54). In agreement with Mr Jaffey KC, Judge Obi determined that the answer to that question was one.

What next?

The court’s ruling on the applicability of sections 17 and 47 of the Children Act 1989 is a significant victory for the greater protection and safeguarding of the 16 children confined to deplorable conditions in Diego Garcia. By determining that the safeguarding provisions of the Act apply to Diego Garcia, the claimants are now able to proceed with the judicial review challenging the Commissioner’s failure to effectively safeguard and protect the five children under sections 17 and 47 of the Act.

Not only that, since sections 17 and 47 are recognised by the defendant as “gateways” to other provisions of the Act, Judge Obi’s decision provides a pathway for any of the 16 children on Diego Garcia to demonstrate the applicability of other duties and protections under the Act and challenge the Commissioner’s failure to meet them.

In light of the egregious conditions the children have faced for two and a half years, this legal route will enable the children and their families to hold the Commissioner accountable for his complete disregard for the lives of these children.

The legal victories are yet to have a tangible impact on the children of Diego Garcia, as the Commissioner is in the process of appealing the decision and has sought a stay on the judgment. While it brings the claimants one step closer to improving the welfare and protection provided to children on Diego Garcia, for the foreseeable future these children will be forced to live out their childhood years in unbearable conditions created, maintained and supported by the British government