No Place Like (The) Home(Office): Unaccompanied Children And Legal Parentage

Guest post by Dr Shona Minson. Shona is a researcher at the Centre for Criminology in Oxford, formerly a family barrister, and her work focuses on the rights of children when in contact with the criminal justice system, and the treatment of children outside of the family court jurisdiction.

‘Section 17 of the Children Act 1989 places a general duty on every local authority to safeguard and promote the welfare of children in need within their area by providing services appropriate to those children’s needs.

An unaccompanied child will become looked after by the local authority after having been accommodated by the local authority under section 20(1) of the Children Act 1989 for 24 hours. This will mean that they will be entitled to the same local authority provision as any other looked after child. Assessment and care provisions for the child should commence immediately as for any looked after child, irrespective of whether an application (e.g. an asylum claim) has been submitted to the Home Office. (Department for Education, Care of unaccompanied migrant children and child victims of modern slavery. Statutory guidance for local authorities. November 2017)

The Home Office policy of housing unaccompanied children in hotels has been brought to public attention recently following reports of numbers of children going missing from these establishments. This has raised questions about who has legal responsibility for these children – it is the local authority or the Home Office?

The Children Act 1989 sets out very clearly the duties of any local authority towards any child within its area. Unaccompanied migrant children are not expressly excluded from these duties, and therefore the protections and care set out in the Children Act 1989 should be applied to unaccompanied migrant children, as to any other child. However, in order for a child to receive support from the local authority, one of two things must happen.   

A child can become either a ‘child in need’ under section 17, or a ‘looked after child’ under section 22, both which then attract statutory duties of care.  The Home Office currently circumvents both section 17 and section 22 by not placing the children into local authority care and instead giving themselves the power to make an exemption and house these children under their own auspices. By not allowing the children to become ‘looked after’ by the local authority for 24 hours, they prevent the activation of the section 22 duties. They also do not issue requests for section 17 assessments of the children.

Two criticisms have been made of this situation. The first is that it is unclear who is legally responsible for these children. The second is that the children are not being properly cared for.

In response to the first criticism, it was reported last week that the Home Office plan to amend legislation to allow themselves to become the ‘legal parent’ of unaccompanied migrant children. Although the details are, as yet, unclear, this announcement has caused great concern among advocates, since it obscures the real issue, which is the care and treatment of the children.

As I have written about in a different context, Article 3 of the United Nations Convention on the Rights of the Child 1989, which the UK has ratified, makes it clear that the best interests of the child should be a primary consideration for any decision involving children. It is clear, however, from the lack of care demonstrated by the Home Office thus far, that the best interests of children are not being served by accommodating them in hotels, a practice which will be able to continue if they are the responsibility of the Home Office rather than the local authority. By taking legal responsibility for these young people the Home Office will formalise their circumvention of the  mechanisms within the Children Act 1989 that would trigger the protections listed above.

If unaccompanied children were accommodated by the relevant local authority, the statutory duties under section 22, providing for appropriate accommodation, allocation of a social worker, and provision of education and health care for the child, would have to be met. In addition, for children who aren’t accommodated by the local authority there remains the duty under section 17 to provide support to any ‘child in need’ in its area. Under section 17(10) of the Children Act 1989

‘a child shall be taken to be in need if—

(a)he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;

Local authorities are expected to ensure that children receive the education and health care which will enable them to ‘achieve or maintain’ reasonable standards of development. The Home Office bypassing of the local authorities means that no money needs to be given to local authorities to enable them to properly provide the care that should be available to any unaccompanied children. As a result, the second criticism about the standards of care currently provided, is unlikely to be remedied. Housing children in hotels, without support or access to education will not enable children to maintain reasonable standards of health or development.

Deliberately removing children from the statutory safeguards of the Children Act 1989 is in breach of Article 2 of the United Nations Convention on the Rights of the Child 1989, which states that all children should have their rights upheld without discrimination. The Home Office’s current treatment of unaccompanied migrant children is undoubtedly a discriminatory practice and should be challenged. This government does no more than pay lip service to the wellbeing of children, and its latest attempt to avoid its own duty of care, is abhorrent.

Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.