ECPAT UK (Every Child Protected Against Trafficking), R (on the application of) v Kent County Council

A local authority’s duty under section 20 of the Children Act 1989 to accommodate and look after newly arrived unaccompanied asylum-seeking children is absolute. It applies irrespective of resources, placement capacity or staffing. Section 11 of the Children Act 2004 does not qualify that duty.

An emergency response plan may provide for early warning and urgent central-government action when capacity approaches exhaustion. It must aim to prevent a breach, and notification of the trigger cannot permit the authority to refuse a child. Judicial supervision of remedial orders should remain exceptional and should end when the remaining issues are better governed by ordinary public law constraints.

Three linked judicial review claims concerned the arrangements for unaccompanied asylum-seeking children arriving in Kent. Earlier judgments found unlawful the Kent Protocol, aspects of the National Transfer Scheme and the systematic use of hotels outside local-authority care. The court granted suspended quashing orders, mandatory orders and continuing supervision.

By the present stage, the hotels had closed, funding and capacity arrangements had improved, and an emergency response plan and National Transfer Scheme plan had been prepared. Disputes remained about the definition and operation of Trigger Point 4, the steps required of the Home Secretary, and the calculation of transfer times. The central questions were whether further relief was required and whether continued supervision remained appropriate.

1. No further relief. The exceptional remedial supervision adopted in the proceedings was justified by the serious risk to vulnerable children and the need for concerted action by Kent County Council and central government. Those circumstances no longer justified continuing the court’s complex supervisory regime.
2. Section 20 duty. The duty under section 20 of the Children Act 1989 to accommodate and look after every newly arriving child notified by the Home Office is absolute and non-derogable. It applies irrespective of funds, placements, social workers or other staff. So-called section 11 notices had no apparent statutory basis and did not qualify the duty. Section 11 of the Children Act 2004 requires arrangements having regard to safeguarding and welfare; it does not alter the underlying functions.
3. Emergency response plan. Trigger Point 4 could operate as an early-warning mechanism when Kent CC approached the limits of safe and suitable capacity. It could not provide for refusal to accommodate a child. The Home Secretary had to act urgently when the trigger was reached, with the aim of preventing Kent CC from becoming unable to perform its duties. The wording should recognise that placements must be safe and suitable for the particular child and demographic group.
4. Emergency powers. The court declined to determine whether Kent CC had powers under section 3(5) of the Children Act 1989 or section 6 of the Human Rights Act 1998 to use placements outside section 22C(6). Those potentially difficult issues should be resolved, if necessary, in a separate properly pleaded claim against a concrete factual background.
5. National Transfer Scheme. The ten-working-day period should run from referral of a child into the NTS until the transfer takes effect, as provided by the NTS Protocol. No adequate reason justified the different calculation used in the plan. Subject to correction of that point, the court found no breach requiring further relief. The parties were left to finalise the ERP, and remaining costs issues were dealt with by separate directions.

First-instance judicial review proceedings. The judgment records earlier substantive judgments in the same litigation, including [2023] EWHC 1953 (Admin), [2023] EWHC 2199 (Admin) and [2023] EWHC 3030 (Admin). The court concluded that no further relief was required.