High Court allows judicial review against council over failure to support child trafficking victim

The High Court has ruled that the London Borough of Barnet failed to meet its duties towards a victim of child trafficking after he received no specialist support from either the council or the Home Office for several years.

In AM, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 3034 (Admin), Mr Justice Lane allowed, in part, the judicial review which challenged the decision of the Secretary of State for the Home Department (SSHD) to refuse to provide the claimant with back-dated payments between 27 April 2018 and 16 December 2019, in respect of financial support alleged to have been due to him as a child victim of trafficking and before he consented to remain in the National Referral Mechanism, after he reached the age of majority.

The London Borough of Barnet was the second defendant in the case.

The 22-year-old Eritrean national, referred to as AM, suffered repeated episodes of violent exploitation and trafficking as a child.

AM was recognised as a likely victim of child trafficking by the Home Office soon after seeking asylum in the UK at the age of 16. However, neither the Home Office nor Barnet Council provided him with specialist support to help him with his recovery for nearly three years during his childhood and transition to adulthood, said law firm Leigh Day.

Mr Justice Lane said that on 23 July 2022, the Home Office agreed to make back payments of trafficking support under the Modern Slavery Victim Care Contract (MSVCC) from 17 December 2019 to 25 January 2021.

“In essence, the SSHD disputes the substance of the challenge on the basis that, between 27 April 2018 and 14 May 2019, the claimant was a child. Accordingly, he did not fall within the MSVCC. Rather, his needs as a child victim of trafficking fell to be met by the second defendant”, he said.

Barnet argued that it was not at fault in failing to appreciate that the claimant was a child victim of trafficking until it received a letter dated 1 March 2019 (shortly before AM reached the age of 18).

The judge said: “Even if it should have had such a reason, Barnet says there is nothing to show that its care for the claimant would have been (or should have been) any different than what he actually received. In particular, Barnet appreciated that the claimant was affected by trauma and would benefit from counselling, which it endeavoured to arrange for him.”

The judge outlined the five grounds of challenge as follows:

• Ground 1 contends that the SSHD is in breach of articles 12 and/or 13 of ECAT and/or article 4 of the ECHR by failing to make arrangements to ensure that there is consistent provision of support to child victims of trafficking for their recovery needs.
• Ground 2 alleges a breach of article 14 of the ECHR. This provides that the enjoyment of the rights and freedoms in the Convention shall be secured without discrimination on any ground. That includes disability and any other status. It is necessary in this regard for the claimant to show that he was subjected to differential treatment; and that that treatment was on a relevant ground or status.
• Ground 3 alleges a breach of articles 12/13 of ECAT and /or article 4 of the ECHR, on the part of Barnet. Barnet contends it did not know and could not have known that the claimant was trafficked until 1 March 2019, when it was informed by the claimant's immigration solicitors that he had received a positive reasonable grounds to decision.
• Ground 4 alleges a breach of Barnet's duties under the CA 1989. Barnet is unable to point to any document that acknowledged the claimant's victim status or which attempt to comply with the requirements under the 2010 Regulations, as well as regulation 7 of the Care Leavers Regulations.
• Ground 5 contends that Barnet is in breach of section 11 of the CA 2004 and section 1 of the Children and Social Work Act 2017. As a matter of substance, the care plans and pathway plans failed to acknowledge the claimant's victim status at all or give any consideration to what his trafficking-related needs were.

The judge allowed ground 1, but “only to the extent that the claimant is entitled to back payments from the SSHD in respect of the period from 14 May 2019 to 17 December 2019”, said the judge.

Ground 2 was dismissed. The court found the Home Secretary was not in breach of her obligations under ECAT and the ECHR. Instead, Mr Justice Lane found that local authorities are responsible for ensuring that the needs of child victims of trafficking are met as a whole. However, the Home Secretary was responsible for meeting AM's needs as a trafficking victim once he became an adult.

Turning to grounds 3 and 4, the judge found that Barnet had failed to consider whether AM was a victim of human trafficking and to take this into account when assessing his needs and planning his care.

The judge ruled that the council failed to meet its duties under the Children Act and other care regulations and this constituted a breach of the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) and the European Convention on Human Rights (ECHR).

While taking account of the pressures under which Barnet Council operates, Mr Justice Lane said that social workers and other staff “did not turn their minds to whether [AM] may have been a victim” and the council did not do enough to obtain information about AM and his trafficking experience.

The judge found the council’s “inaction in the present case was Wednesbury unreasonable”.

Finally, on ground 5, Mr Justice Lane said: “Ground 5 alleges a breach of section 11 of the CA 2004 and section 1 of the Children and Social Work Act 2017. Although Ground 5 does not [add] anything of substance to Grounds 3 and 4, in the light of my findings on them, it follows that ground 5 succeeds.”

Leigh Day solicitor Carolin Ott represented AM. She said: “Despite our client being clearly identified as a victim of child trafficking on his arrival in the UK, Barnet Council failed to recognise his status and provide him with vital, targeted support to help him deal with the trauma of his experiences. Later the Home Office also did not provide him with the support he should have received after he became an adult.

“Although we welcome the outcome of this case, it highlights how the system still fails to provide many victims of child trafficking with the support they need, often with potentially serious consequences for their development and safety. The UK has a duty under both international and domestic law to provide for victims of child trafficking, instead thousands are being left without adequate state support to help them recover.” 

Patricia Durr, CEO of Every Child Protected Against Trafficking (ECPAT UK) said: “Local authorities are required to undertake comprehensive assessments of children’s needs and provide as any reasonable parent would. The Home Office is required to provide support to victims of trafficking. We are pleased that AM will receive back-payment of financial support due to him, but current practice by both local authorities and the Home Office means that support for child victims remains a postcode lottery and will continue to result in further serious detriment to children achieving stable futures.”

A Barnet Council spokesperson said: “We provide all unaccompanied asylum-seeking children in our care with support, including financial support, counselling and specialist services according to their needs. In this case, which dates back to 2018, the child was also offered support but didn’t always accept it."

They also highlighted evidence from the council's Head of Service in its Corporate Parenting Service that "So far as mental health needs, the claimant was repeatedly offered support via Terapia, which is a bespoke psychotherapy service for care-experienced young people in Barnet. At no point was counselling or accessing mental health support unavailable to the claimant.” (paragraph 141 of the judgment).

Also the spokesperson pointed to the judge's rejection of "any suggestion that, if Barnet had appreciated that the claimant was within the NRM and had received a positive reasonable grounds decision, Barnet would (or would have been obliged to) have given the claimant additional financial payments. As a looked after child, the claimant would not need such payments in order to obtain any such specialist services. As for travelling to obtain any such services, Barnet could have arranged travel for the claimant or made discrete financial provision for, say, a possible taxi fare. The evidence shows that this was highly likely to have been how Barnet would have proceeded, had the claimant chosen to engage in this regard. However, he did not.” (paragraph 231)

The spokesperson added: “This was a particularly complex case and, while we are disappointed with the outcome, we will learn any lessons where we can.”

Lottie Winson