The High Court addresses issues of retained responsibility to unaccompanied asylum-seeking children

Today the High Court addressed two claims considering the responsibility held by local authorities to unaccompanied asylum-seeking children. 

In the case of R (Manchester City Council) v Oxfordshire County Council (CO/1505/2020), the child, H was an interested party to the claim.  H is a 17 year old Ethiopian child who entered the UK in January 2019.  He was age assessed by Oxfordshire County Council in a “short form” visual assessment to be an adult and was dispersed into NASS accommodation in the north of England. H challenged that assessment and was granted permission for judicial review and the claim was then listed for a fact-finding hearing.

H left his accommodation and travelled to Manchester, seeking services and support under the Children Act 1989 as a child in need.  Manchester accepted him as a child in need and accommodated and supported him.  Shortly before the fact-finding hearing, Oxfordshire withdrew their short form assessment, following disclosure of social care material from Manchester which indicated that H was a child. Despite the withdrawal, Manchester maintained that Oxfordshire, as the original assessing authority, were responsible for a further age assessment and in the interim,  to support and accommodate H under the Children Act 1989.

After protracted proceedings, which saw Manchester issuing a claim against Oxfordshire in April 2020, the court today held that a duty to conduct an age assessment is not free standing, and only in limited factual circumstances that did not arise in this case, that a local authority would retain a duty to age assess and support a child who is no longer in their geographical area. 

On behalf of H, represented by Antonia Benfield, it was argued that there was significant detriment to H in these protracted proceedings, including delay in determining his asylum claim and uncertainty in terms of the provision of support and accommodation.  This was a regrettable case where two local authorities were unable to cooperate and resolve a question of dispute of responsibility without a court order. The court’s view was that unequivocally, the local authority in whose area H currently resided, and the local authority who had treated him as a child for over 14 months, namely Manchester, was tasked with ongoing duties to him under the Children Act 1989 and any duty to assess age.

The second case was that of R (BNB) v Kent County Council (CO/3990/2020), brought on behalf of a Syrian national child who claimed to be 16 years of age.  He had been initially placed in hotel accommodation in the area of the London Borough of Hillingdon, who had accepted to treat him as a child in need and provide him with section 17 support, and had assured the court and the Claimant’s representatives, that he was not at risk of dispersal within the NASS system. BNB was, despite these assurances, dispersed from Hillingdon to Napier Barracks in Kent on the basis that the Home Office were treating him as an adult.

The court today held that the London Borough of Hillingdon retained a duty to support and accommodate BNB on an interim basis, as a child of his claimed age and could not benefit from their unlawful act in denying him section 20 accommodation to absolve themselves of responsibility. 

Both of these cases involve important principles of the safeguarding protection of unaccompanied asylum-seeking children and the difficulties that present where there is a dispute between local authorities as to who retains responsibility when a child moves from an initial local authority area to another. As concluded in H, in the majority of cases, it will be the local authority in whose area a child is physically present who retains responsibility for him under the Children Act 1989.  In the case of BNB however, the court concluded that there is a need to look at the global facts in the case to determine where responsibility lay, at least on an interim basis, including whether the reason for a child having moved area, arose out of a failure of the initial assessing authority.

H was represented by Antonia Benfield and Stuart Luke of Instalaw Solicitors.  BNB is represented by Antonia Benfield and Donnchadh Greene and Martin Bridger of Instalaw Solicitors.