Ruling last week in Article 39 v Secretary of State for the Home Department [2023] EWHC 1398 (Fam), Mrs Justice Lieven held that local authorities have full powers and duties to protect such children, under ChA 1989.
Children’s charity Article 39 sought to trigger the court’s inherent jurisdiction to make wardship orders in relation to several unaccompanied asylum-seeking children who have gone missing from Home Office-run hotels in Brighton and Hove. It successfully argued the Home Office had no power to house the children.
Concerns were raised following reports that children were going missing. The court heard evidence that 76 children went missing, of which 22 are now 17 years old, and one is 16 years old, while others have been located, leaving 23 under-16-year-olds still missing.
Delivering judgment, Lieven J said the court’s inherent jurisdiction, while ‘very broad’, should not be used where there were statutory powers in place to 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,’ Lieven J said. She held the children were the responsibility of a local authority, and the fact they were missing and therefore it was not possible to know which local authority was responsible did ‘not arise because of a lacuna in the statutory scheme’.
Carolyne Willow, director at Article 39, 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 [ChA 1989]. That was a fiction which unforgivably exposed children to serious harm.’
