QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
on the application of
S (by his litigation friend, Francesco Jeff)
|London Borough of Croydon
Equality and Human Rights Commission
Hilton Harrop-Griffiths (instructed by Yomi Molake) for the Defendant
Caoilfhionn Gallagher (instructed by Rosemary Lloyd) for the Equality and Human Rights Commission
Hearing date: 18 January 2017
Crown Copyright ©
Mr. Justice Lavender:
(3) Brigstock House
(1) if the Defendant accepts that the individual is a child, the Defendant will provide accommodation and support to that individual; but
(2) otherwise, the Defendant will carry out an age assessment (or persuade another authority to do so), but will not offer accommodation or support to the individual pending the completion of that age assessment.
(4) The Defendant's Statutory Duties and Powers
(4)(a) Section 17 of the Children Act 1989
"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)
(a) to safeguard and promote the welfare of children within their area who are in need; and
by providing a range and level of services appropriate to those children's needs."
"(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash."
"The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child's need for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need."
(4)(b) Section 20 of the Children Act 1989
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of
(a) there being no person who has parental responsibility for him;
(4)(c) Section 11 of the Children Act 2004
"Each person and body to whom this section applies must make arrangements for ensuring that
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children;"
(4)(d) Section 1 of the Localism Act 2011
"A local authority has power to do anything that individuals generally may do."
(5) The Statutory Guidance
(5)(a) The Provisions of the Statutory Guidance
"Unaccompanied asylum seeking children and child victims of human trafficking are some of the most vulnerable children in the country. Unaccompanied children are alone, in an unfamiliar country and are likely to be surrounded by people unable to speak their first language. Both groups may have experienced emotional trauma in their country of birth, in their journey to the UK or through their treatment by adults in the UK. They are likely to be uncertain or unaware of who to trust and of their rights. They may be unaware of their right to have a childhood."
"Many unaccompanied and trafficked children arrive in the UK without documentation or with fake documents. Where the age of a person is uncertain and there are reasons to believe that the person is a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Article 10(3) of the European Convention on Action against trafficking in Human Beings."
"Child: anyone who has not yet reached their 18th birthday. 'Children' therefore means 'children and young people under the age of 18' throughout this guidance. Note that, where the person's age is in doubt, they must be treated as a child unless, and until, a full age assessment shows the person to be an adult."
(5)(b) The Construction of the Statutory Guidance
(5)(c) The Obligation to "Act Under" the Statutory Guidance
"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
(6) The ADCS Guidance
(5)(a) The Authorship of the ADCS Guidance
"This guidance has been written by a group of specialist social workers and practitioners from local authorities and non-governmental refugee and legal sectors. We acknowledge the help and advice we have been given by other professionals and interested parties through feedback on drafts, as well as the guidance and oversight of members of the Age Assessment Strategic Oversight Group. The group was established by the Association of Directors of Children's Services and included representatives from the Home Office, Department for Education, Department of Health, Office of the Children's Commissioner for England, Royal College of Paediatrics and Child Healthy, Untied Nations High Commissioner for Refugees, British Red Cross, National Policing, Refugee Children's Consortium and Refugee Council. Feedback was provided by the British Association of Social Workers, British Red Cross, Coram Children's Legal Centre, Devon and Cornwall Refugee Support, Freedom from Torture, NSPCC, United Nations High Commissioner for Refugees, and a host of social workers around the UK."
(5)(b) The Content of the ADCS Guidance
"In this guidance, our use of the words "children" and "young people" has been very deliberate. In the majority of cases, we use the word "child" when it is very clear we are discussing an individual that is under the age of 18. We use the term "young person" when we are not yet sure whether the individual is under 18, but if they could very well be."
"You will need to plan for suitable accommodation before, during and after the assessment. See the Department for Education statutory guidance on the 'Care of unaccompanied and trafficked children' for more help and information with regard to this.
Other than in exceptional circumstances, children and young people will be looked after under Section 20 of the Children Act 1989 whilst the age assessment process continues. "
"Bed and breakfast accommodation is not suitable for any child under the age of 18, even on an emergency basis."
"Social workers are justifiably concerned about the implications of taking an unknown adult into their care, and potentially placing them with vulnerable children. Many social workers have limited options when it comes to placement, but any placement decision should be taken carefully, taking into account the needs of anyone already in the placement, of the carers, and of the child or young person about whom you may know little at the start. The risks of placing a relatively unknown child or young person are mitigated by the fact that they will be supervised, either closely or at least on a regular basis by those employed to care for and support them. Where it becomes apparent that the placement is unsuitable because your understanding of the child or young person's age and/or needs changes, you are able to intervene and make the necessary changes, through further planning and assessment. However, if your initial assessment means that the young person is no longer in your care then you will have no opportunity to continue to assess and change your perception unless the young person is supported in challenging your decision. This can prove difficult and time consuming, and irreparable damage may have been done before any challenge is resolved. Safeguarding the welfare of all children is the primary responsibility of social workers and any decisions about age and placement must be made with this in mind. Similarly, section 11 of the Children Act 2004 places other professionals under a duty to have regard to the need to safeguard and promote the welfare of children.
The dangers inherent in not taking a child into your care are multiple. With regard to their care, a child who is being treated as an adult will not receive the support given by local authorities which is deemed necessary for other children and includes having safe accommodation, the support of a social worker and a foster care or keyworker/support worker, and support with all the other things a child needs, including access to education and health care. "
"In many cases it will not be possible to know definitively the age of the child or young person with whom you are working. Where there is doubt about whether or not the young person is a child, the dangers inherent in treating a child as an adult are in almost all cases far greater than the dangers of taking a young adult into your care."
"The following principles should guide decision-making on placements for unaccompanied children and young people:
The accommodation must be safe, both for the child or young person and any other children living in the placement (for example, children and young people should not be placed with unknown adults. Similarly, young people who may be adults, but have not yet been assessed should not be placed in foster placements with other children)."
(5)(c) The Status of the ADCS Guidance
(6) Departure from the Statutory Guidance
"The reason why Croydon does not automatically accommodate a Brigstock House resident pending age assessment or review is that he will have been through an initial screening process carried out by the Home Office and will have been considered to be an adult."