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Legal limbo: unaccompanied children in hotels denied care and protection

Kamena Dorling

Recent coverage in the Observer revealed that dozens of children placed in Home Office-run hotels have gone missing, trafficked across the country and “abducted off the street outside the hotels and bundled into cars”. The government then confirmed that over 4,600 children have been accommodated in these hotels since July 2021 and there have been 440 missing incidents with 200 children missing. In February 2022 there were four hotels in use, now there are seven.

NGOs, including the Helen Bamber Foundation, have been raising concerns about the use of hotels and the impact it has on the safety and welfare of vulnerable children for over 18 months. Yet, to use the words of the Observer, we have witnessed a ‘wall of complacency’ from central government in response. While we have been repeatedly told that the Home Office doesn’t want to use hotels, we have not seen any clear exit strategy, nor any real sense of urgency in trying to bring this practice to an end. So how did we get here?

Legal responsibility

Unaccompanied children seeking asylum are a particularly vulnerable group of children. Traumatised and isolated from family support networks, they are at great risk of going missing and of exploitation and trafficking. Some may have already been trafficked and are at significant risk of being re-trafficked. They need - and are entitled to - care in supportive foster or residential settings, with skilled professionals to help them recover in safety. 

Under the Children Act 1989, local authorities in England have a legal duty to safeguard and promote the welfare of children within their area who are in need, and this duty applies irrespective of nationality, ethnicity, or immigration status. Children seeking asylum who have no responsible adult to care for them are clearly ‘in need’ under Section 17 of the Children Act and will in most cases require children’s services to care for and accommodate them under Section 20 of the same act. There are around 5,500 unaccompanied children in local authority care in England, but the majority of children first arrive or present in ‘entry’ authorities such as Kent or in Croydon when the Home Office is located.

In the wake of the ‘migrant crisis’ in 2015-16, the National Transfer Scheme (NTS) was introduced to relieve pressure on Kent. It allows for the transfer of responsibility for the care of unaccompanied children from the local authority where they arrive to the care of other local authorities with greater capacity. Originally the scheme was voluntary and local authorities were deemed to have ‘capacity’ if the number of unaccompanied children in care was less than 0.07% of the total looked after child population of the whole local authority.

However, the NTS has not worked as well as hoped, not least because of the lack of adequate funding for the care of children seeking asylum. In the summer of 2021, Kent County Council announced that it would stop taking unaccompanied children into its care, citing ‘extreme pressure’ on its services. The Home Office then decided to accommodate children in Home Office-run hotels whilst they were awaiting placement with other local authorities via the NTS. Kent eventually resumed taking in children and the government made the NTS mandatory (and better funded) but the Home Office has continued to put children in hotels.

A dangerous precedent

Local authorities point blank refusing to take in unaccompanied children sets a very worrying precedent. It is not insignificant that just two months after Kent announced it would stop taking unaccompanied children, Croydon threatened to do the same. These are children first and foremost, with the same rights as any other children, but for too long immigration control has been seen as more important than their safety and protection.

The Home Office then, in effect, created a ‘parallel system’ for this group of children who were denied the protections they should be afforded under the Children Act. While in these hotels, no agency or government department has legal responsibility for them - the Home Office is not operating as the ‘corporate parent’ (and does not have the skills and expertise to do so). These children do not have their needs properly assessed and have been unlawfully excluded from the care of local authorities.

And this ‘legal limbo’ is not just for a day or two – while the average length of stay for is 18 days, between July 2021 and February 2022, 188 young people spent over a month in a hotel, with 18 spending more than 2 months. Five of these children were aged 14 and one of them had a referral made on their behalf to the National Referral Mechanism as a potential victim of trafficking.

The Department of Education’s (DfE) Statutory Guidance, 'Care of unaccompanied migrant children and child victims of modern slavery' clearly states that the support required to address these children’s needs “must begin as soon as the child is referred to the Local Authority or is found in the Local Authority area.” It makes clear that Bed and Breakfast accommodation “is not suitable for any child, even on an emergency accommodation basis” as it can “leave the child particularly vulnerable to risk from those who wish to exploit them and does not cater for their protection or welfare needs.” The High Court has confirmed that hotel accommodation is equivalent to bed and breakfast accommodation.

Leaving children at risk

The issue of children being put in hotels is not just about the message it sends. Real harm is being caused. 10% of children accommodated in these hotels went missing – 5% are still missing, including victims of trafficking. Research from ECPAT UK has shown that child victims themselves have identified the care and support they receive in their ‘home’ as the number one priority for preventing missing episodes, with the presence of trained, knowledgeable carers.

In addition, the Independent Chief Inspector of Borders and Immigration, highlighted in his inspection of these hotels a number of gaps and concerns. These included:  

  • Staff living in hotels who had not been Disclosure and Barring Service checked;
  • Only one hotel having a fully operational kitchen;
  • Education limited to informal English classes run by care workers;
  • Nurses onsite unable to prescribe medication, including basic pain relief and staff unclear on who could consent to medical treatment for a child;
  • Lack of adequate translation/interpreter services;
  • A lack of mental health support; and
  • No access to legal advice.

‘Wall of complacency’

The use of hotels was born out of a failure of the NTS but was in no way inevitable. Six months prior to the summer of 2021, NGOs wrote to the then Children’s Minister Vicky Ford about the treatment of unaccompanied children arriving in Kent and the urgent need for reforms to the scheme. In her reply, the Minister emphasised that DfE officials had been working with the Home Office and local authorities to secure placements whilst also developing “the options for sustainable change”.

Yet the situation for children became even more desperate. In July 2021, over 65 charities and NGOs wrote to the then Education Secretary, Gavin Williamson, raising concerns that he had authorised the Home Office housing children in hotels with no legal basis to do so and that this included those aged 15 and under, despite the DfE introducing new legislation making it unlawful for local authorities to place children in care this age in this type of accommodation.

Gavin Williamson’s response stated that the government was “absolutely clear that no [unaccompanied child] aged under 16 should be in such accommodation”. But over 1,000 children aged under 16 have been placed in hotels, including children under the age of 10.  As highlighted by the Home Office’s own risk register, it has been “effectively operating unregistered young people’s homes” while Home Office staff have been “clear this was not a role or activity that they felt comfortable delivering due to a lack of skills, expertise and authority”.

A year later, NGOs wrote again to the government, this time highlighting the numbers of children who had gone missing; the criticism from Ofsted and the Home Affairs Select Committee; and the fact that what was described as an ‘emergency measure’ had become business as usual. The policy amounted to “negligence in corporate parenting duties and is void of respect for children’s rights”. The government has been repeatedly warned about the risks to children, and ignored those warnings – 200 children missing is the outcome of this complacency.

There are huge financial pressures facing local authorities, and changes are needed to ensure the NTS works in the best interests of children. But the use of hotels by the Home Office, operating outside of England's care system for children, has led to children suffering significant harm, and the situation has gone far beyond an ‘emergency’ response into business-as-usual, where the existing legal safeguards for unaccompanied children have been disregarded. We should be doing everything in our power to ensure that our care system is able to offer care and protection equally to all children, irrespective of their circumstances. This means respecting the existing legal framework and central government ensuring that local government budgets are sufficient to meet their statutory obligations. It means the Home Office closing these hotels as a matter of urgency and all children receiving the care to which they are entitled.