Care proceedings in asylum cases often not justifiable, says judge

Accommodation under section 20 'more appropriate' in many cases involving older unaccompanied asylum-seeking children

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Photo: Lydia Geissler/Fotolia

Local authorities should not bring care proceedings to court for “no good purpose” in cases involving unaccompanied asylum-seeking children, a judge has said.

Judge Peter Jackson made care orders for two unaccompanied children who fled from their home in Afghanistan, but said local authorities should not feel obliged to bring cases to court when they could instead use section 20 arrangements, which are voluntary care agreements that do not require care orders.

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Judge Jackson said the council was “obviously correct” to bring this case about the boys, believed to be aged nine and 10, to court, but there may be cases where much older children could be appropriately accommodated under section 20.

Taliban presence

The two boys were forced to flee their homes due to the presence of the Taliban and the area being “in a state of effective war”.

They made it to a refugee camp in Calais, where it is believed they lived in a tent without adults being responsible for them for four and a half months, before moving to the North West of England in August 2016. Both of their mothers were believed to still be living in their hometown, while one of their fathers was believed to be dead and the other missing.

An interim care order was made in November 2016, then Judge Jackson approved full care orders and care plans, which he said had a “great deal” of thought in them.

But he said that bringing every child in these circumstances to court would not be worthwhile.

Interests of the children and public

“It is neither in the interests of individual children, nor, I think, in the wider public interest for local authorities to feel that they have to bring care proceedings to no good purpose, as would be the case if every unaccompanied asylum-seeking child was to be brought within care proceedings,” he said.

“There may be many other cases, however, in which much older children fall into the hands of local authorities where accommodation under section 20 would be perfectly appropriate, because the arrangements in place for their support are relatively straightforward and need no oversight from the court or input from a litigation friend or children’s guardian,” Jackson said.

He added that section 20 cases for unaccompanied asylum-seeking children should not be compared to others where children were being accommodated under section 20 for child protection purposes and parents wanted them to be returned to their care.

“In those cases, the instances of judicial and other guidance in favour of bringing care proceedings without delay are numerous, but they do not, I think, apply in circumstances of this kind,” he said.

He insisted it was important to judge these situations on a case-by-case basis.

‘Balance sheet’ for asylum cases

Judge Jackson’s ruling, which was made in January but has recently been published, also listed the advantages and disadvantages of section 20 and care orders in this kind of case. This was based on a ‘balance sheet’ prepared by the counsel for the local authority, Michael Jones.

Section 20 advantages:

  • Accommodation
  • Possible child in need plan
  • Support under leaving care legislation
  • Availability of looked-after child reviews and an independent reviewing officer

Section 20 disadvantages:

  • No one has parental responsibility or is able to exercise it
  • There is a risk that the children will fall down the queue for services
  • Although it can be used in cases where children have been abandoned, it is not a core function
  • Living under section 20 throughout one’s middle and later childhood may lead to a lack of purpose in planning for the future and looser responsibilities should the children abscond

Care order advantages:

  • Accommodation
  • Support under a formal care plan approved or considered by a guardian and court
  • Leaving care support
  • Looked-after children reviews
  • Would have priority in relation to obtaining specialist therapy or medical care
  • Parental responsibility would be held by the local authority
  • If children left their placement, the authority would be under a duty to find them
  • Local authority would be obliged to take an active role in relation to asylum applications
  • Care order would likely provide the children with a plan for a permanent and established family life

Care order disadvantages:

  • May potentially stigmatise the children
  • It is a more interventionalist order that needs justification
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