The High Court has decided it should not invoke its wardship jurisdiction in relation to missing and unaccompanied asylum-seeking children. In Article 39 v Secretary of State for the Home Department [2023] EWHC 1398 (Fam), Article 39, a charity promoting and protecting the rights of children in England who are in or entitled to the care of the state, sought to trigger the Court’s inherent jurisdiction to make wardship orders in relation to unaccompanied asylum-seeking children who had gone missing from Home Office run accommodation in Brighton and Hove.

A wardship is the name given to court proceedings by which a child is made a ward of the court, giving the court legal guardianship of the child to ensure their safety and protection.

I previously covered the issue where the local authority in Kent were unable to deal with the volume of unaccompanied asylum-seeking children coming into its jurisdiction. As part of a wider solution, the Home Office implemented a “National Transfer Scheme” forcing other local authorities to share the burden of caring for the children.

In all the cases before the court in this matter, the children went missing very shortly (a few days) after they were placed in a hotel, and before they were referred to a local authority under the National Transfer Scheme. The charity argued that there was no safeguarding regime in respect of these children because they fell into a gap. They were not yet formally “looked after” or “children in need”. Both the charity and the Home Office referred to a Scrutiny Report commissioned by Brighton and Hove Safeguarding Children Partnership and published on 28 February 2023. This report was commissioned to consider the issue of the Partnership’s response to “missing migrant children” which had received extensive media coverage. The report noted that:

“The Local Authority recognises UASC are likely to be children in need but maintain that the Home Office are primarily [responsible] for meeting these needs until such time as the child is placed in the care of a Local Authority under the National Transfer Scheme.

Local safeguarding agencies have responded to the situation, but the Local Authority remain clear that the children do not have ‘looked after’ or ‘child in need’ status. They are clear that they will respond to specific safeguarding issues / concerns when they are raised regarding children placed in the hotel.”

The Home Office argued there was no gap in the law justifying the court’s use of its wardship jurisdiction. All the charity were doing were trying to persuade the court to review the decisions of the relevant authorities, in particular the decision not to apply for care orders in the period before the children go missing. It was also argued that there was no step that the court could take which could not already be taken by those relevant authorities under their existing powers. For example, there was already a duty to accommodate children, to investigate any suffering, to make care and supervision orders where required. Neither the local authority nor the police had suggested that they needed extra powers in order to safeguard those children.

The court ultimately sided with the Home Office. It noted that the agency responsible for finding the children is the police. The Scrutiny Report made clear they and the local authorities were fully engaged in that task. But the court went further and found that even if there were evidence of no active efforts being made, any challenge to the use of their statutory powers was by way of a challenge by judicial review. It was not to use the inherent jurisdiction to make a wardship application.

Even in the face of significant funding, time and resourcing pressure, the court gave deference to the decisions of local authorities and rejected any challenge to cut across their discretionary powers. The court was clearly satisfied that the local authorities had the matter under control, but standing from the outside looking in, it’s a bit alarming to see the court give such high-level consideration to this important issue. The court had made various orders at an earlier urgent hearing but this decision followed a substantive hearing and it is surprising to see such a brief judgment in circumstances where a significant number of children remain missing.

The court’s decision on the wrong remedy being used is also interesting. Of course, applications for judicial review must be brought within three months of the grounds arising. But when would that start? When the children went missing? When the police and local authority give up? When they go past a reasonable amount of time spent looking for the kids? What would a reasonable amount of time even be? All of these are tricky questions which are necessarily thrown up by this decision and remain unanswered at this time.

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