There was something of a furore in certain sections of the media following recent press reports that one in four local authorities had refused to accept any refugee children evacuated from the so-called ‘Jungle’ migrant camp at Calais since its demolition. Not only is this a highly emotive subject for all, it is also extremely politically sensitive both in a national and international context.

The home secretary herself, Amber Rudd, went as far as appealing to local authorities in October to come forward and volunteer to take more children under the ‘Dubs’ amendment, section 67 of the Immigration Act 2016, which required the UK to support a specified number of unaccompanied refugees from other countries in Europe, in addition to any Syrian children resettled in the UK under the Syrian Vulnerable Persons Resettlement Scheme.

The political machinations continue but what are the actual issues for cash-strapped local authorities in terms of their obligations to unaccompanied migrant children?

Local authorities in England and Wales have a statutory duty under sections 17 and 20 of the Children Act 1989 to provide support for children in need, which will, without doubt, include unaccompanied migrant children. Section 17 places a general duty on every local authority to safeguard and promote the welfare of children in need within their area by providing services appropriate to those children’s needs and section 20 requires them to provide accommodation for children if there is no person who has personal responsibility for them, they have been lost or abandoned or the person who has been caring for them has not been able to provide them with suitable accommodation.

The nature of the accommodation provided to the child will depend on each authority’s assessment of the child’s needs, but generally, children under 16 would be placed in foster care or in a children’s home, with those over 16 ideally offered living arrangements which would give them more independence.

Once a referral is made to a local authority, they have to decide within one working day whether or not to take action. Where the concerns are sufficiently serious, they must carry out an initial assessment within seven working days. It is almost inevitable that all unaccompanied migrant children would fall within these parameters.

A child is deemed to be in need if they are unlikely to achieve a reasonable standard of health or development or if their health or development is likely to be significantly impaired without the provision of appropriate services, or if they are disabled.

One of the current difficulties is that some local authorities are under significantly more pressure than others in terms of looking after unaccompanied migrant children. A recent report from the House of Lords on the distribution of such children found that the London Borough of Croydon and Kent County Council had the most – and it cannot be a coincidence that both these authorities are points of arrival of a disproportionate number of unaccompanied migrant children. In other parts of the country, some authorities have none.

Section 69 of the Immigration Act 2016 allows for the transfer of unaccompanied asylum-seeking children between local authorities. A voluntary National Transfer Scheme has been in place since 1 July 2016 and is intended to bring about a ‘more even distribution of caring responsibilities’ around the country.

In order to encourage authorities to participate in the scheme, the Government has increased the amount of funding available and it has also produced an ‘interim transfer protocol’, with a new one due for implementation from next April, which will kick in once the number of unaccompanied asylum-seeking children in any given authority reaches 0.07% of all the children in that authority. One this ceiling is hit, it is expected that a child presenting in that particular authority will be transferred to another authority, which has not yet reached the 0.07% figure.

The Home Office is administering the transfer scheme, including making decisions about which regions will receive children. Regional teams will then decide to which particular authority a child will be sent.

Whilst the long-term welfare and wellbeing of these children is, as mentioned above, one of the most emotionally heightened issues in recent memory and without doubt a humanitarian crisis, the harsh but simple truth is that, inevitably, it can only be resolved within the confines and constraints of current domestic political and economic realities.

Funding for local authorities remains severely constrained, and there was little or no sign of any relief in the recent Autumn Statement, whilst if the current financial forecasts have any degree of credence, there is little or no prospect of any significant improvement in the medium term at least.

The current National Transfer Scheme is voluntary, but it is worth noting that there does exist within the legislation (section 72(3) of the Immigration Act 2016) the power for the secretary of state to introduce a mandatory scheme, with which all local authorities will need to comply. No doubt the introduction of such a scheme would be met with differing responses from different authorities, but with many calls for the Government to accept more unaccompanied asylum-seeking children, it would be naïve to assume that the problem is going to go away.

Local authorities will – as ever – simply have to juggle their already scarce resources in order to continue to fulfil their statutory obligations because the reality is that they have no other option.

Morris Hill is an associate and Ken Slade is a principal professional support lawyer at Weightmans.

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