Most unaccompanied child asylum seekers and refugees will be “children in need” for the purposes of the Children Act 1989. So the issue of whether or not local authorities have properly exercised their duties to provide accommodation and care frequently arises for this vulnerable group.

In R (KI) v London Borough of Brent [2018] EWHC 1068 (Admin) the High Court criticised the approach of the London Borough of Brent in one such case.

The judge found that Brent was in breach of its duty under section 20 of the Children Act 1989 to provide suitable accommodation and care in seeking to send the claimant (K) to live with his uncle in October 2017. Upon K reaching the age of 18, the council had also wrongly refused to acknowledge that he was a “former relevant child” for the purposes of section 23C of the 1989 Act. Section 23C gives rise to specific duties to facilitate K’s transition into adulthood including help with accommodation and education.

Child pressured to move into unsuitable accommodation

K and his cousin had arrived together from Sudan as teenagers under the Dublin III Regulation in October 2016. They were granted refugee status soon after.

Before their arrival, Brent had already accepted that they would be in children in need pursuant to section 17 (10) of the Children Act 1989. The cousins would be unlikely to achieve or maintain a “reasonable standard of health and development” without the provision of Brent’s services.

A social worker completed an assessment in relation to the boys being accommodated with their uncle in a studio flat. The council accepted that the studio flat would be statutorily overcrowded.

The uncle had four of his own children who would visit the flat. He had limited financial means and in a questionable position to support K and his cousin. There was also a concern as to how the uncle could meet the children’s “unidentified needs”, particularly taking into account the traumatic experiences suffered by them. K had been subjected to detention and ill-treatment by the Sudanese government.

Social Services raised these concerns in its assessment, carried out in October 2016. Despite this, and because Brent concluded that nothing else could be done, the file was closed in December 2016. Conflict arose between the uncle and K, who ended up rough sleeping and “sofa surfing” after being ejected from the flat.

At paragraph 52, Judge David Elvin QC stated:

Social Services did not even consider it appropriate to monitor the situation given it was fully aware of the problems with the flat, having regard to the fact it did not expect an early solution to the accommodation issue. I find this concerning given [the boys’] vulnerability as refugees newly come to the UK…

There then followed repeated, misguided attempts by the council to force K to move back in with his uncle despite the clear unsuitability of the flat.

The High Court found the council in breach of its section 20 duty. In summary, Brent had taken responsibility for caring for the claimant, but had not followed the correct procedures for stopping the care of K, and its assessment that the claimant’s accommodation at his uncle’s flat was suitable was unreasonable.

Failures in disclosure

The judgment also features strong criticism of the failure of Brent to comply with the duty of candour. In fact, it was only as a result of further disclosure provided on the day of the hearing (in particular, the 2016 social worker assessment expressing the opinion that the accommodation was not suitable) that Brent was effectively forced to accept that it owed a duty to K under section 20. The evidence showed that Brent had not taken into account these concerns when trying to force K to return to his uncle’s flat.

As the judge stated:

Since this case concerns duties owed to vulnerable children, latterly young adults, I find this lack of effective procedures to ascertain the facts and obtain relevant documents from the department concerned to be disturbing taken with the very late concession (on the day of the hearing) that, despite resistance for over 4 months following the issue of proceedings, a duty under s. 20 had arisen at least for a period of time and that ground 1 was not contested. [11]

This case shows how Brent sought to “side step” its duties under section 20 of the Children Act 1989 prior to the child’s 18^th birthday, and to stave off any triggering of a duty. This judgment criticises this approach and reiterates the importance of ascertaining the “facts and what the Council did as opposed to how it characterised what it was doing” when dealing with a child in need.

The judgment also reminds decision-makers of the vulnerability of child refugees, and the importance of the duties owed to those leaving care.

Brent has since apologised to K and is to check all judicial review cases involving children and young people for potential disclosure failures.