Geographically some Local Authorities are impacted more than others when it comes to the pressures of safeguarding children who are unaccompanied asylum seekers notwithstanding Government attempts to encourage Local Authorities to share collective responsibility more widely. In this article we examine the support which a Local Authority must provide to unaccompanied asylum seeking children, and what happens to that support when that child becomes an adult?
A child “in need” and “looked after”
Local Authorities have a duty under section 17 of the Children Act 1989 (“the Act”) to promote the welfare of children in their area who are in need. Where a child is ‘unaccompanied’, there is a duty on the Local Authority to assess that child under section 17 of the Act as being “in need”. This is usually followed by a requirement to accommodate unaccompanied asylum seeking children under section 20 of the Act where there is no carer or parent who is able or willing to provide accommodation, (unless the outcome of that child’s needs assessment under section 17 suggests that another way forward is more appropriate).
Where a child is accommodated under section 20 of the Act by the Local Authority for 24 hours or more, they fall within the definition of a “looked after” child, and, as such, that status provides the child with the right to a range of potential entitlements which the Local Authority must subsequently discharge to meet its function under section 22 of the Act to “safeguard and promote the welfare” of that child. In meeting that function the Local Authority should have regard, and make plans to promote the (i) health, (ii) education and training, (iii) emotional and behavioural development, (iv) identity (with consideration of the individual’s religious beliefs, racial and cultural background and language), (v) any family or social relationships, (vi) social presentation and (vii) skills around self-care, of the child. Those planning requirements apply in the same way to unaccompanied asylum seeking children as they do to others, but additional consideration should also be given to any specific issues which may affect such children, including possible issues in relation to trafficking, and the need for immigration advice and support.
In terms of the Local Authority’s responsibility for identifying needs and undertaking assessment, no child or groups of children should be treated any less favourably in being assessed or accessing services to meet their assessed needs.
It should be noted that from 2016 unaccompanied asylum seeking children arriving in the UK could be transferred on a voluntary basis to a different Local Authority with greater capacity rather than specifically being cared for by the Local Authority in which they first presented under a national transfer scheme. In June 2021, the Home Office announced that “responsibility for unaccompanied asylum seeking children will be more fairly distributed across the UK…and…will encourage more Local Authorities to take part in a planned schedule for taking into care children who arrive in the UK alone and claim asylum – ensuring all areas in the UK play their part”. Changes announced included increased funding to support care leavers, and a rota scheme with the aim to provide regions and Local Authorities with a clearer indication as to the numbers of children to expect and when, in order for Local Authorities to better plan and prepare. It is hoped that the introduction of a rota format will reduce delays and make the transfer of children to Local Authorities better able to support them more straightforward.
Types of Local Authority Support for a “looked after” child
The type of support for a looked after child can be wide ranging. The following gives an indication of some of those areas of support: -
Accommodation – There is no definition of accommodation which is provided in the Act. Under section 20, different types of accommodation can be provided so long as it is suitable, and meet the needs of the child, taking their wishes and feelings into account as far as possible. The location of accommodation should not prevent the child from accessing education or support, or be unduly disruptive to this.
Financial Support – The Local Authority is responsible for providing financial support to looked after children based on an assessment of their needs. It should also be clear to the child how that financial support will be received.
Legal Representation & Advocacy – Local Authorities have a duty to provide information regarding advocacy services, and, if needed, to help a looked after child find an advocate. Likewise, in relation to any unaccompanied child, securing their immigration status is critical and should be addressed in that individual child’s personal care plan. The Local Authority should secure legal representation and any practical assistance to help the child with this where it is required.
Inadequate Support – Challenges
The Act requires Local Authorities to have a system for considering complaints in relation to how they discharge their functions in relation to children in need. Where an issue of dispute around the adequacy of care support arises, all children who receive services (or a representative acting on their behalf) can utilise the Local Authority complaints process. Where that issue is unable to be resolved at a local level, the matter can be raised with the Local Government Ombudsman. In some circumstances, it may be possible for there to be a judicial review challenge of the Local Authority’s decision making, but this should be brought within 3 months of any decision subject to challenge; and local remedies must usually be exhausted in the first instance, or there must be some evidence of illegality, irrationality or procedural unfairness in the decision taken by the Local Authority.
Care Leavers and longer term support
Under the Children (Leaving Care) Act 2000, the Local Authority can also have longer term obligations to a “looked after” child beyond the initial stages of adulthood. Consequently where a child is looked after for at least 13 weeks between the ages of 14 and 18 (at least one day of which is after the child’s 16th birthday), they become entitled to leaving care support until they reach the age of 21 (and in some circumstances, potentially up to the age of 25). If at aged 21, an individual is not in education or training, then leaving care support will normally stop, although that individual will be entitled to a personal advisor up to the age of 25, and should also receive an assessment of their needs to determine whether they need help to access Local Authority services.
Leaving care support for migrant children and young people
As indicated above, accommodation and wider support for unaccompanied asylum seeking children is provided by section 20 of the Act via the Local Authority. Those individuals will usually be entitled to leaving care services under the Children (Leaving Care) Act 2000, with the aim of providing a young person with the same guidance and support which they might reasonably receive from a family. Individuals who have been “looked after” and who are entitled to support fall into different categories –
- Eligible children: Aged 16 or 17. Have been “looked after” for at least 13 weeks since the age of 14 and are still/currently “looked after”.
- Relevant children: Aged 16 or 17. Have been “looked after” for at least 13 weeks since the age of 14 and have ceased to be “looked after”. Looked after for a period of time after their 16th
- Former relevant children: Aged 18 to 21 (or between 18 and 25 if still in full time education). Have either been an eligible, or relevant child or both.
- Qualifying children: Aged between 16 and 21 (or between 16 and 25 if still in full time education). Have been “looked after” on or after their 16th birthday and no longer looked after. Spent less than 13 weeks in care since 14th birthday – ie do not fulfil criteria for eligible or relevant child.
Upon turning 16, eligible and relevant children should receive an assessment of their needs, carried out not more than three months after their 16th birthday, access to a personal advisor, and a care pathway plan should be put in place. An eligible child is entitled to receive all the care and support they would normally until they leave care. Relevant children may receive accommodation and maintenance, as well as financial support to meet education, training or employment needs.
Former relevant children are entitled to a personal advisor, a care pathway plan kept under regular review, financial assistance with education, training or employment, and general assistance (which could include accommodation if required to support that individual’s welfare, or help with living costs). The Local Authority who is responsible for that individual is under a duty to keep in touch with them.
Whilst qualifying children cannot access the main leaving care services, they are entitled to advice and assistance from the Local Authority (which could potentially include help with living expenses), and befriending.
It should be noted that a young person’s care pathway plan should actively involve them (and any significant adults in that young person’s life), it should be recorded in writing, and should be reviewed at least every 6 months, reviewed if the individual’s circumstances change, or reviewed where the individual or their personal advisor asks for it to be considered.
Migrant Children – Leaving Care
Young people who arrive in the UK and who are “looked after” within 13 weeks of their 18th birthday will not qualify for full leaving care services even if they have been provided with support under section 20 of the Act for the weeks leading up to their 18th birthday, as they will not have been “looked after” for 13 weeks or more.
Unaccompanied children who qualify as care leavers, and who have been granted leave to remain, have an outstanding asylum or other human rights claim or appeal, are entitled to the same level of care and support from the Local Authority as any other care leaver. It is not for the Local Authority to judge the merits of any claim – an individual should continue to receive leaving care support until such time as their outstanding claim or appeal has been dealt with.
If an individual has no leave to remain or outstanding claim or appeal, but is receiving leaving care support; the Local Authority must carry out a human rights assessment to ascertain whether removing that support would breach that individual’s human rights. The Local Authority must take into account any obstacles to the individual departing the UK.
Where the individual receives a decision to remove leaving care support, that decision can be challenged via the Local Authority complaints process, or subsequently potentially via Judicial Review.
The Immigration Act 2016
The Immigration Act 2016 received Royal Assent on 12 May 2016. Only a few of its provisions came into force on that date, with the rest of the Act to be commenced by Order.
Some of the aims of the Immigration Act 2016 were noted to be:
- The Government considered that the Children Act 1989 was not the appropriate mechanism for providing support to adult care leavers when it has been determined that the care leaver has no lawful basis to remain in the country.
- It was also considered that the availability of long term support for those arriving in the UK as children encourages adults to falsely claim to be under the age of 18, and encourages children to undertake dangerous journeys to try to claim asylum in the UK.
The Immigration Act seeks to potentially make significant changes, including excluding former looked after children without immigration status from receiving leaving care support, and introducing new more limited support dependent on immigration status. However, the relevant provisions of the Act which would impact this have not been brought into effect by way of further commencement Order, and, as such, the provisions of the Immigration Act 2016 in this area are not current law. Consequently, the current status quo for unaccompanied asylum seeking children and subsequent care leaver’s support is preserved.
This article is not designed to encompass every scenario which may be encountered, but is intended to provide, in overview, an indication of the type of support which could be provided to unaccompanied children who seek refuge in the UK, and what may happen to that support as that child becomes a young adult.
Please also see our document Health & Social Care Law – Issues for Foreign Nationals in the UK, which outlines areas of work in which Bevan Brittan LLP can offer specific advice and support.