Inherent jurisdiction cannot be used to deal with missing Albanian teenagers: Judge

The Family Court cannot use its inherent jurisdiction to deal with 23 Albanian teenagers who have gone missing from unaccompanied asylum seeker accommodation, Mrs Justice Lieven has concluded.

Article 39, a charity concerned with the rights of children in or entitled to care in England, brought the case against the Home Secretary seeking the use of inherent jurisdiction to make wardship orders for children who have gone missing from Home Office run accommodation in Brighton and Hove.

It said that although Lieven J refused to make the orders sought, her judgment made it clear such children were entitled to protection under the Children’s Act 1989.

The court heard most unaccompanied asylum seeker children arrived by small boats in Kent, and the Home Office had sought to relive pressures on Kent County Council by distributing them to hotels elsewhere.

Of those allocated to Brighton & Hove, 76 were identified as missing but many had since passed their 18th birthdays or been found, leaving 23 Albanian males aged 16-17 unaccounted for.

Article 39 said they were highly vulnerable young people, at risk of trafficking and exploitation, and it wanted the court to consider further orders in respect of them under its wardship jurisdiction.

The charity said the children were placed in hotels by the Home Office “with very little oversight and without the statutory protections that they would have if they had been taken into care by a local authority”.

It argued this amounted to a lacuna in the protection of children, and so it was appropriate for the High Court to use the inherent jurisdiction to ensure their welfare.

Lieven J said: “Although the inherent jurisdiction is a very broad one which can be used flexibly to protect children in very different circumstances, it cannot and should not be used where there are statutory powers in place that can essentially do the same job.

“Lying behind this proposition is the fundamental constitutional principle that where there is a statutory scheme, the court should only use the inherent jurisdiction if there is a lacuna.”

She said since the children were missing no-one knew whether they were in Brighton and Hove or elsewhere, nor which local authority was therefore responsible for them.

“However, this difficulty does not arise because of a lacuna in the statutory scheme, it arises because the children have gone missing,” Lieven J said. “The agency that then has responsibility for finding the children and thus allowing them to fall within a specific local authority's powers and duties is the police, both the Sussex Police and any national police bodies that can be engaged.”

She said that even if there were issues around how actively efforts were being made to find the children, “this would not give a proper basis for the court to exercise the inherent jurisdiction”.

“If the relevant agencies were not exercising their statutory powers correctly, and there is no evidence that is the case, then the remedy would be judicial review and not the use of the inherent jurisdiction. There is no lacuna in the statutory scheme which would justify the exercise of that jurisdiction.”

Despite the ruling, Article 39 said the case showed unaccompanied children have the same right to protection under the Children Act 1989 as other children without parents and carers.

It noted Lieven J had said that if the children were still in Brighton & Hove and met the statutory criteria “then they would be the responsibility of a local authority, in all probability Brighton and Hove”.

Carolyne Willow, Article 39’s director, said: “This judgment has brought vital clarity to a wholly unacceptable situation where extremely vulnerable children have been treated as being in ‘legal limbo’, outside the protection of the Children Act 1989. That was a fiction which unforgivably exposed children to serious harm.

“As conceded by government itself during these proceedings, the court has affirmed that it is the legal responsibility of local authorities to ensure children’s safety and security, and to look after children when this is required. The Home Office has no power to house children outside the care system, and government should be properly funding and supporting local authorities to meet their comprehensive duties.”