High Court hands down final judgment on Kent County Council and the Home Secretary’s unlawful treatment of newly arrived unaccompanied asylum seeking children

In a final judgment handed down today, the High Court held unlawful the use by Kent County Council of “s. 11 notices” (referring to section 11 of the Children Act 2004), purporting to justify its continued failure to comply with the mandatory duties it owes under the Children Act 1989 to provide accommodation, care and protection to all unaccompanied asylum-seeking children arriving in its area.

Today’s judgment is the fourth substantive judgment in the claim brought by ECPAT UK on behalf of thousands of children affected by unlawful action committed on the part of both Kent County Council and the Home Secretary. Since July 2021, over 5,400 unaccompanied asylum-seeking children had been denied safe accommodation and care under the Children Act 1989 by Kent County Council and were instead accommodated by the Home Office in hotels outside the statutory child protection framework. 

ECPAT UK were represented by Shu Shin Luh and Antonia Benfield throughout the proceedings, instructed by Freshfields Bruckhaus Deringer LLP. Martin Westgate KC was also instructed in earlier stages of the proceedings.

In a judgment handed down on 27 July 2023, Mr Justice Chamberlain found that Kent County Council was acting unlawfully in refusing to accommodate and look after all unaccompanied asylum-seeking children when notified of their arrival by the Home Office. The High Court found unlawful a secret policy operated by Kent County Council and the Home Secretary which sanctioned this unlawful treatment systemically. An earlier post addresses the High Court’s first judgment in detail.

Since then, the High Court has used its powers under section 29A Senior Courts Act 1981 to subject Kent County Council and the Home Secretary careful supervision to bring the protection of unaccompanied asylum seeking children back to a lawful state of affairs. 

It had been a consistent theme of Kent County Council’s submissions, repeated at every hearing in these proceedings, that it is also subject to other duties, in particular the duty to operate a system that is safe for children already in its care; and that it may sometimes have to choose between discharging its s. 20 duty and discharging these other duties, in particular those under s. 11 of the Children Act 2004. Even after the High Court declared Kent County Council’s refusal to perform its s. 20 duty to all newly arrived UAS children, Kent County Council continued to fail to fully comply with its s. 20 duty to all unaccompanied asylum seeking children by issuing “s. 11 notices” and contending that it cannot safely do so. 

Kent County Council’s approach was unequivocally rejected by Mr. Justice Chamberlain in today’s judgment, finding that:

82. 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.

83. Kent CC has in the past issued what it calls “s. 11 notices” to indicate that it can no longer safely accommodate children. It is unclear what legal effect Kent CC thinks these notices have, given Mr Southey’s concession that they do not render lawful a breach of s. 20 duty. It is important to be clear that these “s. 11 notices” have no apparent statutory basis. Section 11 of the CA 2004 does not attenuate or qualify the s. 20 duty. Rather, it imposes an obligation to make arrangements for ensuring that Kent CC’s “functions” are discharged having regard to the need to safeguard and promote the welfare of children. “Functions” here means Kent CC’s functions in respect of all UAS children. Nothing in s. 11 of the CA 2004 cuts down, or otherwise affects, what those functions are.

The judgment can be found here.

A press release from ECPAT UK is available here.

Martin Westgate KC, Shu Shin Luh and Antonia Benfield are members of Doughty Street’s Children’s Rights Group and its Public Law, Immigration and Community Care Teams. Shu Shin Luh is co-lead of the Children’s Rights Group and Deputy Team Leader of the Community Care Team. Martin Westgate KC is team leader of the Public Law Team.