Local Government Association raises concerns over Illegal Migration Bill, highlights conflict with Children Act 1989

The Local Government Association (LGA) has warned that provisions in the Government's Illegal Migration Bill regarding unaccompanied children could conflict with the Children Act 1989.

The Illegal Migration Bill seeks to make provisions for and in connection with the removal from the country of illegal migrants.

But its provisions also include a raft of measures for unaccompanied asylum-seeking children (UASC). These set out how UASC should be accommodated, transferred from the care of the Secretary of State to local authorities, and how they should be transferred between local authorities.

In its response to the Government's Bill, the LGA singled out a set of clauses, including clause 3 of the Bill.

Clause 3 clarifies that the Secretary of State is not required to remove a person from the UK while they are an unaccompanied child, though they retain the power to do so. Children would be removed when they turn 18.

"We are not clear that, in requiring the removal of children as soon as they turn 18, this Bill is compatible with other legislation in particular the Children Act 1989 and associated guidance," the LGA said.

"This stresses the importance of consideration of the wishes and feelings of the child, and operating in their best interests. Guidance also requires councils to plan for permanence for children, including developing relationships and ensuring children have a sense of security, commitment and belonging."

The LGA also noted that the Bill might be incompatible with the Nations Convention on the Rights of the Child to which the UK is a signatory, in particular Article 3 (best interests of the child), Article 12 (respect for the views of the child), Article 22 (refugee children) and Article 39 (recovery from trauma and reintegration).

"This incompatibility would place councils in the position of trying to comply with two competing sets of legislation as they attempt to fulfil their duties towards children," the response added.

The president of the Association of Directors of Children's Services (ADCS) raised similar concerns over the Bill's potential conflict with the 1989 Act last week.

In a written statement, ADCS president Steve Crocker said: "As Directors of Children's Services, we have a duty to safeguard all children in our care and to ensure they receive the right support that meets their needs. If this legislation is passed, it will run counter to a number of our fundamental responsibilities set out in the Children Act 1989, such as securing permanence and having consideration for children's wishes and feelings.

"ADCS is clear that all new legislation must be child focussed and protect their rights, yet this Bill seeks to do the opposite and removes such protection from a specific group of children.

"Clarification on the corporate parent role is important to ensure clear accountability for the welfare and safety of all children."

The LGA went on to question other parts of the Bill, including clause 2, which places a duty on the Secretary of State to make arrangements for the removal of people from the United Kingdom when they arrive without leave to enter on or after 7 March 2023, where they have come from a "safe" country immediately prior.

Under this clause, the detention and removal of families "may act as driver for children previously travelling within their families to claim asylum as lone children on arrival in the UK and in turn further increase numbers that need to be taken into care," the LGA said.

It also called for councils to be consulted on and able to influence the location of any Home Office accommodation for children "to ensure the appropriateness of the location and capacity of local services to support children".

Elsewhere, the LGA suggested that Government powers to direct councils under clause 16 of the Bill could mean that councils will be required to take lone children into care or to stop caring for a child "without consideration of whether that direction is appropriate for individual children".

The Illegal Migration Bill is currently at the report stage in the House of Commons after undergoing its first and second readings and having been through the committee stage. Its third reading is scheduled for 25 April.

Adam Carey