What action should a local authority take regarding those claiming to be unaccompanied asylum seeking children (UASC) detained at an immigration detention (removal) centre on the basis of a decision by an immigration officer that the UASC is 18 years or older?
The statutory basis of the children's services authority's duty:
Local authority children's services owe duties under sections 17 and 20 of the Children Act 1989 to all children 'within their area who are in need' [1], or who 'require accommodation' [2] for any of the reasons specified in section 20. The question is whether a duty is owed to a detained asylum seeker claiming to be a child.
Can the local authority rely on the fact of a prior age assessment by the immigration service
It is settled law that when it comes to the assessment of age, each decision maker (in this case a local authority social services department) must make its own decision. It would be unlawful for a social services authority to conclude that a detained asylum seeker was an adult merely because the Immigration Service had done so. [3]
The duty to assess if someone might be a 'child in need'
Whilst in the context of children's services there is no express duty to assess needs, it is implicit in the legislation and explicit in the statutory guidance [4] that a duty to assess exists if an individual might be a child in need.
In the circumstances of the current question, this probably extends to a duty to complete a preliminary assessment to establish if a person purporting to be a child but detained under immigration powers as an adult, is a child for the purposes of local authorities' duties under the Children Act. Pending such an assessment - generally referred to as an 'age-assessment' - the detained person is merely someone who might be a child in need and so is only owed an assessment to establish if they are a child. Where the preliminary assessment establishes that the person is a child an immediate duty will arise to carry out an initial needs assessment because such a child would clearly be in need (see below).
The meaning of 'within (a local authority) area' - are immigration detention centres covered by the law?
The term 'within their area' is settled law and has the same meaning as elsewhere in the Children Act. Physical presence is required and is sufficient to found the duty under section 17 so that where a child is physically present in a local authority area, that authority is under a duty to assess their needs and to provide them with an appropriate level of service. [5]
It is likely that children's services authorities are not saved or exempted from their Children Act duties in relation to the Crown or Crown property, [6] although the law has never been tested specifically in relation to immigration detention centres. [7]
Would a detained asylum seeker found to be a child be a 'child in need'?
Yes. Where the local children's services authority concludes that a person detained as an adult under immigration powers is in fact a child, the assessed individual would be 'in need' for two principle reasons:
Home Office policy is not to detain unaccompanied children and the detention would therefore be unlawful. There would be a duty on the local authority to protect the child from this unlawful action. The communication to the Immigration Service that the person is a child will trigger release as they will not want to be in breach of their own policy which would then be open to legal challenge and claims for damages for unlawful detention (these have successfully been sought in a number of recent cases).
The child would need immediate support once released as by reason of his or her age and immigration status they would be prevented from working or claiming benefits. The UKBA asylum support has no power to accommodate unaccompanied children. Physical, mental, emotional, educational and health needs would flow from this prospective destitution. Unless the child had support and accommodation available to him or her in the community, s/he would be 'in need' for the purposes of both section 17 and section 20 of the Children Act.
Duty on release
Once it has been established that an asylum seeker detained under immigration powers was in fact a child and is, as a consequence, released from detention, then a social services authority will be under a duty to provide him or her with accommodation under section 20 of the Children Act if s/he remains within that area. If the child were to be transported, with their agreement, to another area - for example the port of their entry to the UK, or to an area where they previously been living, they would become the responsibility of the social services department of that area.
Revised 21/01/08
Notes
[1] Children Act 1989, section 17 (1) (a) requires the local authority to safeguard and promote the welfare of such children. It would be hard to argue that an unaccompanied child detained in a removal centre with adults was not a child 'in need' within the meaning of 'in need' at section 17 (10) - " … a child shall be taken to be in need if— (a) he is unlikely to maintain, or have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision to him of such services; or (c) he is disabled.
[2] Ibid, section 20(1) states that a local authority shall provide accommodation for any 'child in need within their area' who appears to require accommodation as a result of (a) there being no person who has parental responsibility for him; (b) his being lost or abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation and care. UASC, by definition, will most meet one or more of these criteria.
[3] The Queen on the application of B v London Borough of Merton [2003] EWHC 1689 (admin); [2003] 4 All ER 280. See the CLC information note on the Merton judgement
[4] A local authority has to comply in substance with central government guidance issued under section 7 Local Authority Social Services Act 1970: The Queen v Islington London Borough Council ex parte Rixon [1998] 1 CCLR 119,123J
[5] The Queen on the application of S v London Borough of Wandsworth, London Borough of Hammersmith and Fulham, London Borough of Lambeth. Queens Bench Division [2001] EWHC Admin 709, [2002] 1 FLR 469
[6] The Queen on the application of Howard League for Penal Reform v Secretary of State for the Home Department [2002] EWHC 2497; [2003] 1 F.L.R.48
[7] An analogous situation is that where the Nationality, Immigration and Asylum Act 2002 disapplies the Education Act in relation to children in accommodation centres. Primary legislation might therefore be necessary to disapply local authority duties under the Children Act to unaccompanied children in immigration detention centres.
