Councils responsible for unaccompanied children in Home Office hotels, judge rules

Children who arrive in the UK without a parent or carer are entitled to protection under the Children Act 1989 which means they are entitled to the same support from their local council as all other children in care, judge Mrs Justice Lieven told the Family Division of the High Court.

The decision was made in a ruling, published last week (9 June), following two hearings, held in March and April after children’s rights charity Article 39, backed by the Good Law Project, sought a wardship application for 66 children who were reported to have gone missing from a Home Office-run hotel in Brighton and Hove in January. 

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According to the ruling, 23 of these children are still missing.

Article 39 argued that that there is a “lacuna in protection” as individual missing children have no corporate parent responsible for their safety and welfare. 

Brighton and Hove Safeguarding Children Partnership, at the end of February 2023, published a report, referenced in the ruling, which states: “The status of [unaccompanied asylum-seeking] children remains ‘in limbo’. They do not have looked-after children or child in need status with the local authority and the Home Office has no statutory responsibility for their care. This creates a significant statutory gap in provision and leaves the child with no corporate parent.”

However, Judge Lieven ruled that the children being housed in hotels by the Home Office does not diminish the legal responsibilities and duties of local authorities.

Her ruling states: “If the children were present in Brighton and Hove and met the statutory criteria then they would be the responsibility of a local authority, in all probability Brighton and Hove.”

Wardship protection is not available for unaccompanied children who have been housed in Home Office-run hotels because the Children Act 1989 protects them, the judge added.

Carolyne Willow, director of Article 39, said: “This judgment has brought vital clarity to a wholly unacceptable situation where extremely vulnerable children have been treated as being in ‘legal limbo’, outside the protection of the Children Act 1989. That was a fiction which unforgivably exposed children to serious harm. 

“The Home Office has no power to house children outside the care system, and government should be properly funding and supporting local authorities to meet their comprehensive duties.”

Home Office minister Robert Jenrick told MPs this week that there are currently no unaccompanied children housed in Home Office-run hotels.

However, if passed the government’s Illegal Migration Bill suggests that the Home Secretary would be classed as a corporate parent for any children housed in such accommodation in future.

A Home Office spokeswoman said: “Due to the rise in dangerous small boats crossings, the government sometimes has had no alternative but to use hotels to give unaccompanied asylum-seeking children arriving in the UK a roof over their heads. 

“The wellbeing of children and minors in our care is an absolute priority. Robust safeguarding and welfare measures are in place at all temporary hotels to ensure children are safe, secure and supported as we urgently seek placements with a local authority.”

Leader of Brighton and Hove City Council, councillor Bella Sankey, welcomed the judgment.

She said: “The Family Court has confirmed what the Labour Group has said all along: unaccompanied asylum-seeking children put by the Home Office into hotels are children in need – and the legal responsibility of local authorities who are now left to pick up the pieces of this Home Office safeguarding disaster. 

“The Family Court’s judgment puts beyond doubt that it was wrong to treat children as being in a ‘legal limbo’.  

“However, the Family Court did not address the lawfulness of the Home Office Hotel policy and their responsibility for the risks its use posed to vulnerable children, nor the impacts on local authorities seeking to meet their legal duties.

“This administration will use every means available to stop this unlawful and shameful practice.”

Meanwhile, charity ECPAT UK has launched legal action against the Home Office and Kent County Council over the housing of unaccompanied children in Home Office-run hotels.

The charity argues that there is an agreement between the council, the Department for Education and the Home Office which "sanctions the abdication of responsibility by Kent County Council to perform their mandatory duties to unaccompanied children".