The King on the application of ECPAT UK (Every Child Protected Against Trafficking) v Kent County Council

Hearing date: 14 March 2024 Post-judgment written submissions: 27 March and 5, 12, 24 and 30 April 2024

Approved Judgment

This judgment was handed down remotely at 10.00am on 5 June 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is my fourth substantive judgment concerning unaccompanied asylum-seeking children (“UAS children”) entering the United Kingdom in Kent on small boats. It explains why I have decided that there should be no further relief and the Court's supervision of the lawfulness of the conduct of the Kent County Council (“Kent CC”) and the Home Secretary should now be brought to an end, at least as far as these proceedings are concerned.

Procedural background

There were three separate claims for judicial review. Their targets included a protocol agreed in September 2021 between Kent County Council (“Kent CC”) and the Home Secretary setting out how Kent CC was to deal with UAS children (“the Kent Protocol”), a protocol setting out the procedure for the transfer of responsibility for UAS children from one local authority to another under the National Transfer Scheme (“the NTS Protocol”) and a series of decisions made by the Home Secretary in relation to the design and operation of the NTS.

On 27 July 2023, I handed down a judgment on a series of preliminary issues arising in these claims: [2023] EWHC 1953 (Admin), [2024] PTSR 243 (“Judgment no. 1”). I concluded that Kent CC was acting unlawfully, in breach of its duties under the Children Act 1989 (“CA 1989”), by failing to accommodate and look after all UAS children when notified of their arrival by the Home Office and by ceasing to accept responsibility for some newly arriving UAS children, while continuing to accept other children into its care. I also concluded that the Home Secretary was acting unlawfully by agreeing the Kent Protocol, which capped the number of UAS children for whom Kent CC would accept responsibility; by arranging transfers (purportedly under s. 69–73 of the Immigration Act 2016 (“IA 2016”)) other than in accordance with arrangements made between local authorities; and (from December 2021 at the latest) by systematically and routinely accommodating UAS children in hotels, outside the care system.

Having heard submissions from the parties about relief, I made an order quashing the Kent Protocol in its entirety and the NTS Protocol insofar as it permitted the Home Secretary to make arrangements for the transfer of responsibility for UAS children without the participation of the entry authority. However, I suspended the effect of both these orders under s. 29A(1)(a) of the Senior Courts Act 1981 (“SCA 1981”) for three weeks, until 18 August 2023, and set a further hearing for 17 August 2023 to consider whether to grant any further relief.

In a second judgment handed down on 1 September 2023, I explained why I had granted that relief and why, at the hearing on 17 August 2023, I extended for a short time the suspension of the order quashing in part the NTS Protocol, granted mandatory orders against Kent CC and the Home Secretary and set a further hearing to consider whether to grant additional relief: [2023] EWHC 2199 (Admin) (“Judgment no. 2”).

The second relief hearing took place on 15 September 2023. I granted a mandatory order requiring the Home Secretary to take all possible steps to transfer UAS children in hotels at that date into the care of a local authority by 22 September 2023 and, in respect of children placed in a hotel after that date, all possible steps to transfer each such child into the care of a local authority within 5 working days.

As I have explained, the first stage of this litigation, which led to the first judgment, involved the resolution of certain preliminary issues of law arising in all three judicial review claims. The next stage concerned a series of issues arising in Kent CC's claim for judicial review, in particular Kent CC's allegations that the Home Secretary was acting unlawfully in the design and operation of the NTS. Those issues were argued at a hearing on 10 October 2023. In a judgment handed down on 28 November 2023, I dismissed four grounds of challenge to the NTS, but held that the Home Secretary's decision-making in relation to the NTS scheme was unlawful during the period December 2021 to 27 July 2023 because and insofar as it failed to have regard to the facts that: (i) the Home Secretary was (through her agreement to the Kent Protocol) partly responsible for Kent CC's unlawful failure to discharge its s. 20 CA 1989 function in respect of every UAS child; and (ii) the Home Secretary's use of hotels had by December 20212 become systematic, routine and therefore unlawful: [2023] EWHC 3030 (Admin) (“Judgment no. 3”).

At [55] of Judgment no. 3, I said this:

“…if the provisions of the 2023 Act [the Illegal Migration Act 2023] are not to be commenced, and once final arrangements between Kent CC and the Home Secretary are concluded, rationality will require a plan to be prepared to ensure that the use of hotels to accommodate UAS children ceases and does not resume. The details of such a plan are for the Home Secretary to determine. A lawful plan will at minimum need to:

(a) expressly recognise the Home Secretary's own responsibility for the unlawful state of affairs identified in my first judgment and his resulting responsibility to remedy it and ensure it does not recur;

(b) estimate the range of numbers of UAS children likely to arrive in the short and medium term (taking into account historical data and accounting for inherent uncertainties);

(c) model (based on the terms of the final arrangements concluded between Kent CC and the Home Secretary) the speed and quantity of NTS transfers likely to be required to ensure that no UAS children are accommodated in hotels;

(d) contain arrangements to ensure that transfers take place in line with what is required to eliminate permanently the use of hotels to accommodate UAS children (whether through incentives offered to receiving authorities or through a dispute resolution and/or enforcement procedures or otherwise).”

It was agreed that there would be a further hearing to consider relief between two and four weeks after my third judgment was handed down. That hearing was fixed for 15 December 2023. Following that hearing, I made a further order, which included declarations in the following terms, reflecting the terms of my first and third judgments:

“1. The SSHD has power to accommodate children in hotels over very short periods in true emergency situations, where stringent efforts are being made to enable the local authority promptly to resume the discharge of its duties. That power cannot be used systematically or routinely in circumstances where it is intended, or functions in practice, as a substitute for local authority care. From December 2021, the SSHD's practice of accommodating UAS children in hotels, outside local authority care, was systematic and routine and had become an established part of the procedure for dealing with UAS children. From that point on, the SSHD's provision of hotel accommodation for UAS children exceeded the proper limits of his powers and was unlawful.

2. The SSHD's decision-making in relation to the National Transfer Scheme (‘NTS’) was unlawful during the period from December 2021 to 27 July 2023 because and insofar as it failed to have regard to the facts that (i) the SSHD was (through agreement to the now quashed Kent Protocol) partly responsible for KCC's unlawful failure to discharge its section 20 Children Act 1989 functions in respect of every UAS child; (ii) the SSHD's use of hotels had by December 2021 become systematic, routine and therefore unlawful and (iii) the SSHD has failed to devise a plan directed at using the NTS to eliminate the use of hotels.”

I also made the following further orders, which were largely agreed (save as to timing):

“7. By 4pm on 31 January 2024, KCC and the SSHD must file and serve an agreed action plan setting out the actions they will each take, and take jointly, to secure the outcomes identified at paragraph 5 of the Court's order of 21 September 2023 (‘the Action Plan’). The plan is to include short-term and long-term measures, costings and specific timescales as to when these outcomes are to be achieved.

8. By 4pm on 29 February 2024, the SSHD must file and serve evidence as to his proposals in relation to the NTS in compliance...