Who takes care of unaccompanied minors when they enter the UK?

Unaccompanied minors are children who enter the UK and may be seeking asylum under the Refugee Convention and may also be known as ‘unaccompanied asylum-seeking children (UASC). These children may experience a number of forms of harm prior to their arrival; including during their journey to the UK. Recent research completed by Save the Children in August 2022 found that a number of unaccompanied minors travelling through the Balkans had been “subjected to physical, psychological, sexual or other types of violence, directly or indirectly”.[1]

Once an unaccompanied minor arrives in the UK, the Local Authority have a general duty under s17 of the Children Act 1989 to safeguard and promote the welfare of children who are considered in need. By virtue of a child being unaccompanied and no person exercising parental responsibility for the child, the child would be considered in need of support.

Under s17, the Local Authority may be required to provide support in respect of the child’s health, education, identity, legal status within the UK, emotional development, contact with their family and friends amongst other key areas of their welfare and development.

Where will the child live?

Unaccompanied minors must be accommodated by the Local Authority under s20 (1) of the Children Act 1989 on the basis that:

1. There being no person who has parental responsibility for them (or any known person); or
2. The child is lost or having been abandoned; or
3. The person who was caring for the child has been prevented (whether or not permanently, and for whatever reason) from providing them with suitable accommodation or care.

If a child is accommodated for more than 24 hours, they will be considered to be a Looked After Child. The term accommodated means that the child is likely to be placed in a foster placement which has been approved by the Local Authority. The child may be placed in a placement with other children who are also considered “looked after” by the Local Authority or the biological children of the foster parents within that placement. A child is unable to be detained within an immigration detention centre since 2010, following the Government changing their policy on the detention of children for the purposes of immigration control.

The National Transfer Scheme which was developed in 2016 allows for a child to be transferred to another Local Authority, who has greater capacity to assist so they may be placed in any placement within the UK.

Are care proceedings necessary in unaccompanied minor cases?

There is clear case law arising from the Family Court that children should not be subject to s20 placements for lengthy periods of time.[2] Arguably, this is especially true of those children whereby no one is exercising parental responsibility. It is important that both the Home Office and the Local Authority make reasonable enquiries as to the child’s parents or other family members as it is possible that the child became separated from their family members during the journey to the UK.

The Local Authority may be inclined to apply for a protective order from the Court or more specifically for an interim / full care order to enable them to hold parental responsibility for the child. However, for a full care order to be made by the Court, the Court must be satisfied that the of the following:

(a)          that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)          that the harm, or likelihood of harm, is attributable to—

(i)            the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)           the child’s being beyond parental control.

The key question with regards to unaccompanied minors is if they are at risk of significant harm for the reasons set out above; the fact that the child does not have parents within the UK may not satisfy that requirement. The fact that a child may be present in the UK, may only be a temporary measure pending the outcome of their asylum claim or reunification with their family members. A ruling in 2017 in the case of Re: J (Child Refugees), determined that “the question of whether it was appropriate to apply for a care order will depend on the facts of the individual case.”[3]

The Judge was clear in Re: J (Child Refugees) that there was a distinction between applications for a care order whereby the child is removed for child protection concerns and those relating to unaccompanied asylum-seeking children who have been subject to lengthy periods subject to s20 accommodation.

How Johnson Astills can help

If you require advice regarding s20 accommodation or the support that unaccompanied asylum-seeking children may be offered, then please contact Johnson Astills. Please contact either our Leicester Office on 0116 255 4855 or our Loughborough Office on 01509 610 312 and ask for a member of the Care Team so that we can advise you accordingly. Alternatively, please email us on careteam@johnsonastills.com and a member of our team will be happy to assist you.