AM, R (on the application of) v Secretary of State for the Home Department & Anor

Article 12 of the Council of Europe Convention on Action Against Trafficking in Human Beings gives States a broad discretion to decide what measures are necessary to assist victims and which public authority should provide them. It does not require a uniform system for adults and children, specialist trafficking services, or a specific system of financial payments. For looked-after child victims, the statutory framework governing local-authority care, read with relevant guidance, can discharge the State’s Convention obligations. A local authority must nevertheless make proper inquiries where information indicates that a child may be trafficked, act as a First Responder, and assess trafficking-related needs. A person who entered the National Referral Mechanism as a child may be required to consent to continuing in it after attaining majority, but consent may be treated as given unless the person opts out.

The claimant, an unaccompanied asylum-seeking child from Eritrea, was placed in the care of Barnet after entering the United Kingdom and was referred to the National Referral Mechanism. The Secretary of State made a positive reasonable-grounds decision that he was a child victim of trafficking, but Barnet did not record or act upon his trafficking status. After he became an adult, the Secretary of State accepted responsibility for support from 17 December 2019 but refused earlier back-payments.

The claimant challenged the Secretary of State’s arrangements for supporting child victims, alleged discrimination between adult and child victims, and challenged Barnet’s failures under the Convention, domestic legislation and guidance. The issues included timeliness, standing, the legality of requiring consent to remain in the National Referral Mechanism, and whether Barnet’s omissions were legally material.

1. Preliminary matters. Time was extended for the challenges. The claimant had standing to challenge arrangements affecting looked-after child victims, but not arrangements concerning other cohorts of child victims outside the scope of his experience.
2. The Secretary of State’s system. Article 12 of ECAT confers broad discretion as to the measures necessary to assist victims and the public authority responsible for providing them. Article 12.1(a) is directed principally to subsistence. It does not impose a specific duty to provide financial payments, a duty of consistency between categories of victims, or a requirement that support be specialist or bespoke. The statutory framework under the Children Act 1989 and related legislation, read with the Modern Slavery Act Guidance and the Unaccompanied and Trafficked Children Guidance, was capable of giving effect to the Convention obligations for looked-after children.
3. A systems challenge must show unlawfulness inherent in the system, rather than isolated unfairness or the possibility of individual aberrant decisions. The claimant failed to establish systemic unlawfulness or discrimination under article 14 of the ECHR. Adult and looked-after child victims were not in analogous positions.
4. Consent after majority. The Secretary of State was entitled, and in the circumstances obliged, to require a person who entered the National Referral Mechanism as a child to consent to continuing in it as an adult. The evidence showed, however, that the claimant was subject to an opt-out system and had not opted out. Ground 1 therefore succeeded to the extent that he was entitled to back-payments from 14 May 2019 to 17 December 2019.
5. Barnet. Barnet should have obtained information from Camden, Croydon and the Secretary of State, and should have referred the claimant as a potential victim of trafficking. Its failure to inquire was Wednesbury unreasonable. The claimant’s account of forced labour and exploitation abroad indicated trafficking even though the trafficking had not occurred in the United Kingdom. Barnet should have recorded and assessed his trafficking-related needs in its care and pathway planning.
6. The court declined to apply section 31(2A) of the Senior Courts Act 1981 to refuse declaratory relief. It was highly likely that earlier knowledge of the claimant’s protection from removal would have affected his willingness to seek specialist assistance. Grounds 3, 4 and 5 succeeded to that extent. A declaration was granted against Barnet.

First-instance judicial review. The judgment records that permission was granted by Lang J, but no separate lower-court judgment is identified.