Court Report: J (Child Refugees) [2017] EWFC 44

This case considered how unaccompanied asylum-seeking children should be cared for by the local authority, including looking at the advantages and disadvantages for those children when cared for under section 20 (looked after and accommodated) and section 31 (care orders) of the Children Act 1989. There is a presumption that unaccompanied asylum-seeking children will be cared for under section 20, but there will be cases where a care order is more appropriate - this will depend on a number of factors, including age, medical and mental health issues and vulnerability.

The case involved two boys, J and T, aged 10 and nine, who fled war and oppression in Afghanistan.

It has not been possible to trace their family members. It was found that the threshold criteria for a care order had undoubtedly been crossed because the children had certainly faced the risk of significant harm and had, indeed, suffered significant harm at the time the proceedings were brought as a result of being sent across the world without any parental protection.

The benefits of a care order include the local authority having parental responsibility for the children, allowing it to make and carry through decisions about care, medical treatment, education and so forth; and the provision of a plan for a permanent and established family life. In light of these benefits, it is easy to see that the advantages of a care order may particularly apply to younger children or to children with unusual or particular needs.

Deciding the most appropriate care for a child in care would "depend upon the facts of the individual case". The judge held that: "It is neither in the interests of individual children, nor…in the wider public interest for local authorities to feel that they have to bring care proceedings to no good purpose."

In this case, the decision to take proceedings for the protection of young children with no relatives in this country was obviously correct.

There may be many other cases, however, involving much older children 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.

For more information, contact the Migrant Children's Project at www.childrenslegalcentre.com