Article 39 v Secretary of State for the Home Department

[2023] EWHC 1398 (Fam) - A judgment of Mrs Justice Lieven

In this case, the Charity Article 39 issued wardship proceedings on behalf of a number of children who had gone missing from Home Office accommodation in Brighton and Hove. At the time of the judgment there were 23 children (under 18) who were the subject of the application. 21 were Albanian citizens and all were male.

It was argued by Article 39 that these children were unfortunately in a legal lacuna. They had been living in Home Office run hotels, with the plan being that they would be transferred to local authorities across the country under the National Transfer Scheme. The reason for this was that Kent County Council did not have capacity to assume responsibility for them. However, the Home Office does not act as a corporate parent to these young people either, and the hotels are not registered with Ofsted. This meant that there was ‘no safeguarding regime in respect of these children’ who were unaccompanied, with no one exercising parental responsibility for them, and without any statutory agency taking on responsibility for their welfare. The children then went missing, and in these circumstances, Article 39 argued that the High Court’s inherent jurisdiction could and should be used to protect these children.

Mrs. Justice Leiven did not grant Article 39’s application because the court’s inherent jurisdiction could not be used to ‘cut across a statutory scheme’. The Children Act 1989 contains provisions to safeguard and accommodate children in need in a local authority area – however it is not possible for local authorities to exercise their duties under the Children Act until the children are found, a function which is the responsibility of the police.

Although the application to make the children wards of court was not successful, this case highlights the difficult plight of children who are accommodated in Home Office hotels, who have a particular vulnerability associated with the lack of state responsibility for their welfare.