7 March 2023: Article 39: Article 39 seeks legal protection for highly vulnerable children housed in Home Office hotels
Article 39 children’s rights charity has threatened legal action against the Home Office and the Department for Education if they do not stop housing unaccompanied asylum-seeking children in Home Office-run hotels. Children are being kept outside the child welfare system, they are denied fundamental protections, and there is no independent scrutiny of each child’s welfare and treatment. The Children Act 1989 places responsibility on local authorities to look after children in their area who are without parental or family care and have nowhere to live.
The charity has also taken the exceptional measure of commencing wardship applications to the Family Division of the High Court in respect of the 76 children who remain missing from a Home Office-run hotel in Brighton and Hove. We do not know how old the children were when they went missing, and how old they are now. If this application succeeds, the court will consider appointing a children’s guardian to each child and the court would then supervise action taken by government and others to protect them. As with all decision-making in the family court, the child’s best interests would be paramount.
Working with the Good Law Project, Article 39 is seeking protective action by the courts because so-called urgent and temporary arrangements have persisted for more than 19 months. The Home Office, with the agreement of the then Education Secretary Gavin Williamson, started putting unaccompanied children in hotels in July 2021. There were three hotels at the start; it is understood the Home Office now runs seven hotels. The Care Standards Act 2000 requires any establishment that provides care and accommodation wholly or mainly for children to register as a children’s home with Ofsted. Amongst many questions put to government by lawyers acting for Article 39 is whether the Home Office considers it is running children’s homes. Latest data from the government indicates children are housed in these hotels for 20.11 days on average. The longest period a child has been kept in a hotel is 128 days.
Over 4,600 unaccompanied children have been housed in hotels since July 2021, and children have gone missing on 440 separate occasions. The government admits that 200 children remain missing overall. Very little information has been put into the public domain, though more is known about the Brighton and Hove hotel due to whistleblowers sharing their grave concerns with the Observer newspaper.
A security guard working at the hotel in Brighton and Hove saw criminal gangs outside and “children being effectively abducted”, the Observer newspaper reported at the end of January. The whistleblower told the newspaper: “The Albanian and Eritrean gangs pick them up in their BMWs and Audis and then they just vanish”.
Last week, Brighton and Hove’s Safeguarding Children Partnership published a report from its Chair which conceded, “There remains no definitive answer to where the outstanding missing children currently are”. The report indicates that 60 children who went missing from a Home Office-run hotel in Brighton and Hove have been found, but 76 remain missing. No details are provided about the individual children who went missing and haven’t been found, including their age at the time or whether there were any concerns about prior abuse and exploitation, though the report notes 37 are now adults. It does not state whether the children who were found are now in the care of local authorities. It appears from the report that children started going missing from that particular hotel in August 2021.
A response to a freedom of information request last week also revealed the Children’s Commissioner for England has made just two visits to Home Office-run hotels in the past 19 months, with her last visit six months ago. Both visits were to hotels in Kent. A further three visits have been made by members of Dame Rachel de Souza’s team, to hotels in Kent (two visits) and Coventry (one visit). The children’s rights body has refused to tell Article 39 how many children were seen and interviewed during any of the five visits, claiming this would breach data protection rules. It has also refused to release any notes made during the visits, despite Article 39 telling the Commissioner it understood redactions would be necessary to protect children’s privacy. Article 39 further asked for copies of any correspondence written by the Children’s Commissioner to public authorities setting out concerns about individual children’s welfare and safety. The charity was directed to an already published letter to the Home Secretary from the Children’s Commissioner, dated 24 January 2023.
Dame Rachel de Souza has unique legal powers to enter any premises that are not private homes, in order to interview children and check the standard of care provided there. None of the visits made by the Children’s Commissioner or her team were to the Brighton and Hove hotel.
Given the gravity and urgency of child protection concerns, and indications that the Home Office may be seeking to regularise the diversion of unaccompanied children from the child welfare system, Article 39 and the Good Law Project, together with 49 other organisations, have written to parliament’s Joint Committee on Human Rights urging it to establish a standalone inquiry.
Carolyne Willow, Article 39’s Director, said:
“Children who arrive in the UK after terrifying journeys, and having suffered great trauma and loss, meet every definition of a child in need of care and protection. The Children Act 1989 does not differentiate children on the basis of where they were born, and this legislation is absolutely clear that it is local authorities who have the legal responsibility for looking after and protecting individual children.
“In concocting this so-called emergency arrangement, which has lasted more than 19 months, the Home Office has kept nearly 5,000 children away from our country’s child welfare system operated by local authorities. This lawlessness puts children at risk and degrades our child welfare system.
“We’re a very small children’s rights charity and we would not be able to take this legal action without support from the Good Law Project. We have been sounding the alarm with many other charities for nearly two years. Now that whistleblowers have come forward to confirm our worst fears and child protection warnings, we have to say enough is enough. We hope the involvement of the family court will lead to a robust child protection response for each of the desperately vulnerable children who remain missing from the hotel in Brighton and Hove, and that this will have a wider positive effect on other children who are missing from hotels, the locations of which are not in the public domain.
“Government must properly fund local authorities to look after all children who are without parental or family care and protection, no matter where those children were born. It’s no answer for the Home Office to say it’s acting outside child protection law because local authorities don’t have homes for children – Ministers must fix the crisis in the children’s care system, which means substantial new funding and sustained, high-level government commitment to children in the care of local authorities, no matter how they became to be separated from their families.”
Article 39 first threatened legal action in autumn 2021, weeks after the Home Office, with backing from the then Education Secretary, began using hotels to house children arriving in the UK on small boats without any parents or carers. At the end of November 2021, the government announced that local authorities would be compelled to participate in a national arrangement, whereby children are placed across the UK so as not to overwhelm any single council. Further reassurances were provided to Article 39 that the use of hotels would end, and government was doing everything possible to support local authorities. However, councils continue to highlight the need for urgent funding and other government action to rectify the shortage of homes for children in care.
The Home Office has no legal authority for taking over the care of children in need, though it has responsibility for the ‘national transfer scheme’, which started in 2016. Local authorities were allowed to opt-out of this until February 2022. Since then, the Home Office has been able to compel individual local authorities to take unaccompanied children, though it states it will do this only if the number of unaccompanied children a council is looking after is below 0.1% of its local child population.
Medway Council recently lost its legal challenge against the Home Office, and must now join the scheme (the local authority was looking after five unaccompanied children at the time of the legal proceedings). The High Court refused the council’s claim to operate outside the scheme, its judgment stating, “unlike local authorities, the Home Office and its officials do not have the facilities, the skills, or the legal powers and duties to look after children pursuant to the Children Act 1989. It is plainly not in the best interests of UAS children to be accommodated, at any rate for more than very short periods, in hotels or immigration reception centres”.
Safeguards for children in care have evolved over many decades, often in response to mistreatment and abuse scandals. One of the protections in place for children in care, which is denied to unaccompanied children housed in Home Office-run hotels, is the appointment of independent reviewing officers. These are experienced social workers responsible for checking that local authorities are properly looking after and protecting individual children in their care. They are duty-bound to consider reporting serious breaches to Cafcass, which is empowered to take legal action to protect the rights of individual children. Children in Home Office-run hotels are also denied access to independent advocates, a safeguard developed after the children’s homes abuse scandals in the 1980s and 1990s.
Article 39 is not aware of any local authority in England who has publicly declared it cannot look after any more children in its area who are without parents or carers. In 2021, the Department for Education introduced secondary legislation to prohibit local authorities from placing children in care in unregulated, non-care settings – but only to the age of 15. Many of the 16 and 17 year-olds affected by this discriminatory legislation are unaccompanied children. Article 39’s legal challenge to that legislation was unsuccessful.
Read more: https://article39.org.uk/2023/03/07/article-39-seeks-legal-protection-for-highly-vulnerable-children-housed-in-home-office-hotels/
Letter to the Joint Committee on Human Rights that QRN has signed
Rt Hon Joanna Cherry KC MP
Joint Committee on Human Rights
Houses of Parliament
By email: email@example.com and firstname.lastname@example.org
CC: All Members of the Joint Committee on Human Rights
3 March 2023
Dear Ms Cherry KC
URGENT Inquiry needed in relation to the use of hotel accommodation for unaccompanied asylum-seeking children
We write in relation to a matter of pressing national concern — namely, the Home Office accommodating thousands of unaccompanied asylum-seeking children in hotel and B&B type accommodation for a period of 19 months, during which time hundreds of children have gone missing.
Our view is that there is no legal basis for the Home Office to accommodate children in this way. The effect of this action has been to systematically exclude from the protection of the Children Act 1989 and associated secondary legislation and guidance a cohort of highly vulnerable children, on the basis of where they were born and how they entered a local authority area. They are now treated as being outside the usual established standards for providing suitable accommodation, care, and support to children in need.
We consider that these Home Office arrangements breach the human rights of children in multiple ways, both under domestic and international law. This includes their rights under the European Convention on Human Rights and the Human Rights Act 1998, and the United Nations Convention on the Rights of the Child.
Since July 2021, the Home Office has accommodated over 4,600 unaccompanied
asylum-seeking children in this manner. We understand that the Home Secretary took a decision in July 2021, with endorsement from the Secretary of State for Education, to accommodate unaccompanied asylum-seeking children in hotels outside of the children’s care system, and that the first hotel came into operation on 16 July 2021. However, you may recall that this July 2021 decision was not publicly communicated and there was a lengthy period of uncertainty regarding what decision had been made, by whom, and the (purported) basis for it.
On 21 July 2021, the Home Office sent an email to members of the National Asylum Stakeholder Forum Children’s Subgroup confirming that “we have needed to put in place measures to ensure the immediate safeguarding and welfare needs of young people can be met whilst we are finding them more appropriate long term care placements under the voluntary [National Transfer Scheme]” and that “[w]ith the best interests of children forefront in our minds the difficult decision was taken to accommodate children in hotels whilst this placement process is underway”.
On 3 August 2021, The Times reported that Home Office officials had “privately warned ministers that the decision to put unaccompanied child refugees in hotels risks exposing them to sex offenders”.
Since 15 February 2022, all local authorities with children’s services in the UK have been directed to participate in the National Transfer Scheme (“NTS”). The Home Secretary stated her hope that the mandated NTS would ensure hotel accommodation for unaccompanied asylum-seeking children “will only need to be in place for the shortest period possible”.
The situation has continued for more than 19 months. In this time hundreds of children have gone missing. This was a predictable result of the approach adopted by the Home Secretary. For many years child protection experts and practitioners working in this field have been acutely aware of the unsuitability of hotel and B&B type accommodation for any child, let alone a child who is absent of any parental care and protection and is seeking sanctuary in the UK.
The numbers are stark and extremely concerning. The latest information provided by the Home Office confirms 440 instances of children going missing (“missing episodes”) and that 200 children have not been found. There are clear indications that these children have been trafficked.
In July 2022, the Home Office Affairs Select Committee observed that the ongoing
use of hotel accommodation was “not acceptable” and that “[t]he Government must
provide a clear timeline for ending the accommodation of unaccompanied children in
hotels”. In October 2022, the Independent Chief Inspector of Borders and Immigration similarly stated that “[t]his is clearly not a space the Home Office … should be operating in” and recommended that the Home Office “[w]ithin 6 months, develop, and begin delivering, a viable and sustainable exit strategy from the use of hotels”.
Far from ending this unlawful and harmful practice, the Home Secretary has persisted with these arrangements. Indeed, recent media reports suggest she may seek to regularise her Department’s role by introducing urgent legislation to enable it to act as a “corporate parent”. If such legislation was to be passed by Parliament, this would create a segregated system for the protection of children in need, with unaccompanied children diverted to the Home Office and all other children protected by the Children Act 1989.
Given the gravity of the ongoing situation, we urge the Committee to launch an immediate, urgent inquiry into the accommodation of unaccompanied asylum-seeking children by the Home Office since July 2021. Bearing in mind the Committee’s mandate, we are of course conscious that the possibility of imminent legislation may mean that the Committee would consider an aspect of this as part of its role in scrutinising every Government Bill for its compatibility with human rights. Even if legislation was to be introduced, however, we suggest that a human rights-based inquiry is necessary to consider the context and examine what has occurred since July 2021.
We are mindful of the Committee’s heavy workload and the number of current inquiries which are underway, including your general inquiry on the human rights of asylum seekers in the UK, but we hope you will agree that the urgency and gravity of this matter, including recent accounts of children being mistreated within the hotels, and trafficked by organised gangs,11 merit the Committee considering dedicated written and oral evidence and examining the issues closely.
In the alternative, given that the Committee has one open inquiry at present which is in part linked to these issues, concerning “the rights of asylum seekers in the UK, with a view to identifying human rights concerns”, we ask that you consider (a) permitting further written evidence to be submitted within the ambit of that current inquiry on this specific aspect, despite the deadline for submissions having already passed; and (b) arranging an oral evidence session as a matter of urgency, to address this significant matter of public concern.
We are happy to assist further, and grateful for your consideration of this request.
Jo Maugham, Executive Director, Good Law Project
Carolyne Willow, Founder Director, Article39
Enver Solomon, CEO, Refugee Council
Kathy Evans, CEO, Children England
Beth Gardiner-Smith, CEO, Safe Passage International
Yasmine Ahmed, UK Director, Human Rights Watch
Andy Elvin, CEO, TACT
Nick Watts, Director, Together with Migrant Children
Rita Waters, Group Chief Executive, NYAS
Jane Collins, Director, Foster Support
Brigid Robinson, Managing Director, Coram Voice
John McGowan, General Secretary, Social Workers’ Union
Ed Nixon, Chair, Every Child Leaving Care Matters (ECLCM) Campaign
Celia Sands, CEO, South London Refugee Association
Annie A Gibbs, Founder, Amour Destiné
Leo Ratledge and Lianne Minasian, Co-directors, Child Rights International Network
Meena Kumari, Founder, H.O.P.E Training & Consultancy
Elaine Ortiz, Founder and Director, The Hummingbird Refugee Project
Michelle Philips, Head of Innovation, Safe Lives
Louise King, Director, Children’s Rights Alliance for England, part of Just for Kids
Katharine Sacks-Jones, CEO, Become
Andy Bell, Interim CEO, Centre for Mental Health
Kadra Abdinasir, Strategic lead, Children and Young People’s Mental Health
Dawn Munroe and Marsha Brown, Directors, Team Bambuuu
Sheila Melzak, Director, Baobab Centre for Young Survivors in Exile
Yvonne Wilson, Chair, Nagalro, The Professional Association for Children’s
Guardians, Family Court Advisers and Independent Social Workers
Jimmy Zachariah, Chief Executive, Baca
Rosalyn Akar Grams, CEO, Coram Children’s Legal Centre
Mia Hasenson-Gross, Executive Director, René Cassin
Sile Reynolds, Acting Director of Policy & Advocacy, Freedom from Torture
Dr Razia Shariff, CEO, Kent Refugee Action Network
Peter Sandiford, CEO, The Children’s Homes Association
Ellen Broomé, Managing Director,CoramBAAF
Maggie Jones, CEO, CVAA
Alexandra George Haddad, Homes not Hotels
Clare Moody, Joint CEO, Equally Ours
Jonathan Senker, CEO, VoiceAbility
Goldsmith Chambers Immigration and Public Law Team
Vicki Nash, Associate Director of Policy, Campaigns and Public Affairs, Mind
Sarah Reynolds, Director, Salusbury World Refugee Centre
James Wilson, Director, Detention Action
Patricia Durr, Chief Executive, ECPAT UK
Dr Ruth Allen, Chief Executive, British Association of Social Workers
Shameem Ahmad, CEO, Public Law Project
Sally Daghlian OBE, CEO, Praxis
Clare MacGillivray, Director, Making Rights Real
Colin Date, Acting Chair, Christian Concern for One World
Quaker Asylum and Refugee Network
Jess McQuail, Director, Just Fair
Saqib Deshmukh, Interim Chief Executive, Alliance for Youth Justice
Terry Galloway, Managing Director, Norman Galloway Home
Read more: https://article39.org.uk/wp-content/uploads/2023/03/2023.03.03-Joint-Letter-to-JCHR.pdf