Children’s social care bodies unite against asylum bill that ‘profoundly undermines Children Act’

Social work and children’s organisations have united against government proposals that would increase the detention and deportation of children and seemingly leave many unaccompanied young people outside the scope of the children’s social care system.

The Illegal Migration Bill, introduced by home secretary Suella Braverman this week, has been met with stinging criticism from across the sector, with charities warning that it “runs roughshod over children’s rights” and “profoundly undermines” the Children Act 1989.

The legislation, which has its first debate in the House of Commons next Monday (13 March), is the cornerstone of prime minister Rishi Sunak’s pledge to stop small-boat crossings across the English Channel, through which 45,700 people entered the country in 2022, up from 8,500 in 2020.

Duty to remove asylum seekers

Clause 2 of the bill would place a duty on the home secretary to remove anyone who entered the UK after 7 March 2023, without the right to do so or the right to remain, and without having come directly from a country in which their life and liberty was threatened. They would be removed to their country of origin, if safe, or to a third country deemed safe, such as Rwanda, and would be banned from re-entering the UK, subject to limited exceptions required to comply with the European Convention on Human Rights.

While the home secretary would not be required remove an unaccompanied child who met the clause 2 conditions, the duty to remove would kick in when the young person turned 18. The home secretary would have a power to remove such a lone asylum-seeking child before they became an adult, which the government said would be used in “limited circumstances”, such as to enable a family reunion or “where removal is to a safe country of origin”.

The duty to remove would apply regardless of any claim for protection or human rights claim made by those who met the clause 2 conditions, while they would also be barred from the protection against removal granted victims of modern slavery, other than in limited circumstances.

Children face detention

Such claimants, including children who have entered with their families, would also be detained for up to 28 days without bail pending their removal from the country. The bill would also allow unaccompanied children who met the conditions for removal to be detained ahead of their 18th birthdays or pending them being given limited leave to remain in the UK until they reach adulthood.

The bill would also formalise the controversial practice of the Home Office placing unaccompanied children in hotels before being placed in the care of a local authority, which campaigners have warned leaves them without the protections of the Children Act 1989, such as having a care plan, social worker and independent reviewing officer.

Clause 15 of the bill would give the home secretary the power – though not a duty – to provide accommodation and support for an unaccompanied child, or to ask a third party to do so. In its explanatory notes on the bill, the government said that the home secretary – as now – would not be any child’s corporate parent and would therefore not have any duties to them under the Children Act 1989.

Uncertainty over Children Act rights

Instead, it said it would be for the local authority where an unaccompanied child was physically located – ie the council area for the relevant Home Office-commissioned hotel – to “consider its duties under the Children Act 1989”, though without specifying whether such an authority would have such duties.

The government said that it intended for children to be accommodated by the home secretary temporarily before their transfer to local authority care, as is the practice now under the hotels policy.

Immigration minister Robert Jenrick said this week that 1,727 transfers from hotels took place from 24 August 2022 to 27 February 2023, with children in half these cases moved into local authority care within five days of arriving at a hotel. However, he said last month that the average length of stay in a hotel was 19 days and the longest 122, and that, as of 22 February, 196 unaccompanied children were missing having left their hotel, a phenomenon that has raised provoked significant concerns over young people being trafficked or exploited by criminal gangs.

Children’s rights charity Article 39 this week threatened legal action against the government if it did not stop placing children in hotels, without the “fundamental protections” of the child welfare system.

Clause 16 of the bill would enable the home secretary to direct a council to take a child from Home Office accommodation into its care – triggering its duties under the Children Act – on a specified date, which would be at least five days after the direction.

However, it would also allow for the home secretary to direct an authority to transfer a child who meets the clause 2 removal conditions out of its care into Home Office accommodation, seemingly leaving them outside the scope of the Children Act.

Councils at risk of unlimited fines

Councils would, under clause 17, also face a duty to provide information to the home secretary on the support and accommodation provided to children in their care, to inform transfers under clause 16. This is similar to a duty under section 70 of the Immigration Act 2016, under which councils are required to provide the home secretary with such information to inform the operation of the national transfer scheme (NTS), the now mandatory system under which children are transferred from the care of one authority to another to more evenly distribute provision.

However, the new bill would also enable the home secretary to enforce her directions under clause 16 and 17 on councils, where they do not have a reasonable excuse for non-compliance, by requiring them to comply within a specified timeframe (clause 18). This would be backed by a High Court order, with failure to comply with this constituting a contempt of court, the maximum penalty for which includes an unlimited fine.

The bill drew a united response from a raft of children’s charities – including Action for Children, Barnardo’s, Become Children England, the Children’s Society, Coram, ECPAT UK, the National Children’s Bureau and the NSPCC – in fervent opposition to the plans around accommodating unaccompanied children in particular.

Proposals ‘profoundly undermine Children Act’

“The Children Act 1989 is the legal foundation for protecting all children in England and Wales equally,” they said. “Removing any group of children from any of its provisions profoundly undermines it, and creates an unacceptable segregation between those children who are entitled to the full care, support and protection of children’s legislation and other children who have been placed outside of it.

“Through the Illegal Migration Bill, the home secretary plans to seek a range of powers in respect of unaccompanied children which gravely concern us, including powers to directly accommodate them on arrival and subsequently transfer them. This legal change would leave some of the world’s most vulnerable children outside of the very system designed to give children in their circumstances a home, safety, recovery from their trauma and support to reach their unique potential.”

A similar response came from the Coram Children’s Legal Centre, which said the bill “runs roughshod over children’s rights. Its head, Anita Hurrell, who voiced concerns about the prospect of more children – including unaccompanied young people – being detained. She said this was contrary to a commitment given by the coalition government in 2010 to end the detention of children in immigration centres, since when numbers have fallen significantly, from 1,119 in 2009 to 100 in 2021 (source: The Migration Observatory).

Plans ‘usurp powers properly vested in social workers’

“Even a child who comes all alone to the UK will be shut out of the asylum system and in a waiting game until the government tries to send them to another country once they reach 18,” she said. “That child may be denied care under the Children Act 1989, as the Home Office seeks powers to accommodate them in hotels, from which hundreds have already gone missing – a national scandal.

“This undermines the country’s well-established and respected child protection framework and usurps the powers properly vested in social workers. Unbelievably, the Home Office is now also saying it wants to put lone refugee and trafficked children not just in hotels, but in detention too.”

In its response, the British Association of Social Workers said would create a separation between the rights of unaccompanied children and UK-born children, which it said “contravenes basic principles of human rights”. It added that the prospect of being deported at age 18, would increase the risks of unaccompanied children more going missing from care and being at risk of abuse by traffickers.

In a Twitter thread, the Children’s Commissioner for England, Rachel de Souza, said she was “extremely worried about the impact [the bill] will have on vulnerable asylum-seeking children” and was seeking “urgent clarity” from the Home Office on its impact. She stressed that unaccompanied children “should have looked after status and be in the care of local authorities from the moment they arrive”.

International social work agency Children and Families Across Borders added its voice to the criticisms, warning that the bill would threaten children’s rights to family, as set out in the UN Convention on the Rights of the Child, to which the UK is a signatory.

Children and families ‘forced to take desperate measures’

“The lack of safe and legal routes into the UK for asylum-seeking children and their families forces many to take desperate measures,” said chief executive Carolyn Housman. “These proposals will place children and families at further risk and ultimately threaten their right to a family life.”

For the Association of Directors of Children’s Services (ADCS), president Steve Crocker said children crossing the Channel were making “desperate decisions to leave everything they know and love behind and travel alone because their lives are genuinely in danger, and they deserve our compassion, kindness and support”.

He added: “All new legislation should be child-focused and protect children’s rights. We await further information from government on the Illegal Migration Bill and the impact it may have on vulnerable children, young people and their families fleeing extremely desperate situations.”