Care Proceedings involving Unaccompanied Asylum-Seeking Children

It has become the sad reality that thousands of individuals are forced to flee their home country due to war, persecution, violence, poverty and for many other reasons. For many, fleeing their home country in search for a better life comes with significant risks and are vulnerable as a result. Truth be told, even when refugees, asylum-seekers and migrants arrive in their desired country and receive international protection, that vulnerability continues by often having no family members or friends in that country, being unable to speak the native language, and being exposed to a new culture.

Risks taken by parents and/or family members include sending children unaccompanied across the globe for their safety and/or in search for a better quality of life. These journeys are often long and dangerous. When unaccompanied asylum-seeking children arrive in England and Wales, Local Authorities have a duty in accordance with Section 20 of the Children Act 1989 to ensure that they are suitably accommodated. Unless a care order is made, should a child’s parents be deceased or uncontactable, no one is able to exercise parental responsibility over the child.

This article focuses on two common issues which arise within care proceedings relating to unaccompanied asylum-seeking children:

• Notification to foreign authorities
• Threshold

Notification to Foreign Authorities

Article 37(b) of the Vienna Convention on Diplomatic Relations 1961 states:

If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty: […]

to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments.

Sir James Munby confirmed how Article 36(b) should be applied in care proceedings at paragraphs 47-48 in Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam):

[…] Whenever a party, whether an adult or the child, who is a foreign national

a) is represented in the proceedings by a guardian, guardian ad litem or litigation friend; and/or

b) is detained, 

the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay. [47]

 If, in any particular case, the court is minded to adopt a different or more restrictive approach it is vital that the court hears submissions before coming to a decision and that it then sets out quite explicitly, both in its judgment and in its order, the reasons for its decision [48]

Sir James Munby makes it clear that, while it is good practice to inform a foreign authority of proceedings, the court does have liberty to depart from this position. Such view is consistent with the advice given by the Department of Education: “Working with foreign authorities: child protection cases and care orders” (https://assets.publishing.service.gov.uk/media/5a7d9d2fe5274a676d5331a3/Working_with_Foreign_Authorities_-_Child_Protection_and_Court_Orders.pdf)  dated 2014, which confirms at page 6:

Social workers should inform the relevant Embassy when a child with links to a foreign country has become the subject of a child protection plan, has required immediate protection or has become the subject of care proceedings, unless doing so is likely to place the child or family in danger and provided any necessary consent to disclose information has been obtained. Decisions should be linked to a robust and thorough risk assessment.

Lord Justice Moylan and Mr Justice MacDonald published further guidance in 2019 titled “International Family Justice Officer: Family Courts Informing Consular Authorities of Proceedings” (https://www.judiciary.uk/wp-content/uploads/2019/12/Consular-Authorities-Note.Final-18.04.19-1.pdf). The following guidance was of note:

• The court should ascertain the immigration status of the foreign child involved in care proceedings.
• The court may require the parties to obtain advice from an experienced immigration lawyer.
• The court should be mindful of any detrimental consequences for the family in the country of origin should notification be permitted.

The recent decision of Mr Justice Keehan in Re O (A Child: The Vienna Convention on Consular Relations 1963) [2021] EWHC 908 (Fam) sets out the circumstances where requisite notification may not be required:

In the premises does Article 37(b) impose an absolute and binding duty in all circumstances to notify a foreign authority where a court appoints a guardian in respect of one of its nationals? In my judgment it does not. [31]

In the vast majority of cases where Article 37(b) is engaged, the court will have no difficulty or face any impediment in complying with the terms of the Vienna Convention and giving the requisite notification to the foreign authority. There will be rare cases, such as the circumstances of this case, where it would wholly inimical to the welfare best interests of the child to give the requisite notice to the foreign authority.  [32]

The Vienna Convention is not enshrined in our domestic law. The terms of the Convention should ordinarily be complied with but where to do so would be contrary to the welfare best interests of the child concerned, I am satisfied that the court may conclude it would not be appropriate to give the requisite notification. [33]

I am satisfied in this case and on the basis of the cogent evidence before the court that it would be wholly contrary to the welfare best interests of O for the court or for the local authority to notify the Congolese authorities of the fact of these public law proceedings and/or of the appointment of a guardian to represent her interests. [34]

In this case, the child was a 13-year-old citizen of the Democratic Republic of Congo (“DRC”) who was brought to the United Kingdom by her mother’s friend who sadly abandoned her at a bus stop. While the child did miss her family, she did not want to return to the DRC due to the horrific experiences she had encountered and her belief that she would either be arrested or killed upon her return. In contrast, the child was doing well in the UK and wished to remain in her foster care placement where she could receive psychological help. Mr Justice Keehan confirmed that he had no reason to doubt the account given by the child and provided permission to the Local Authority not to inform the DRC of proceedings.

Accordingly, case law makes clear that whether a Local Authority should give a foreign authority requisite notice of proceedings will be dependent on whether the same would be contrary to a child’s best interests.

Threshold

In cases where the parents of the unaccompanied asylum-seeking child are deceased or are outside of the jurisdiction, a question arises as to how threshold is pleaded. Often thresholds are pleaded on the basis that a child is suffering or is likely to suffer significant harm given no one can exercise parental responsibility. While the child is likely to suffer significant harm, in accordance with the section 31(2) test, how is that harm attributable to the care being given to the child?

This issue was addressed by Lord Justice Peter Jackson in Re J (Child Refugees) [2017] EWFC 44. This case concerned an application for care orders of two unaccompanied asylum-seeking children who fled Afghanistan due to the Taliban. Very little was known about the children’s family other than both children’s fathers were believed to be deceased or missing. At paragraph 15, Lord Justice Peter Jackson stated:

The question first arises as to whether such children can properly be accommodated under section 20 of the Children Act, or whether the Local Authority is under an obligation to bring care proceedings.  In this case, the threshold criteria have undoubtedly been crossed because the children have certainly faced the risk of significant harm and have, indeed, suffered significant harm at the time the proceedings were brought as a result of being sent across the world without any parental protection.  Whether the children are to be described as abandoned or just sent out into the world makes no difference.  It also seems to me that the fact that the children may have been sent out of Afghanistan for their own benefit does not prevent the threshold for care proceedings being met.  That was a decision that was taken either by the parents or the parents were not in a position to exercise parental responsibility so that it was taken by others.  The fact that the children might have suffered worse harm by staying does not mean they have not suffered significant harm and risked suffering significant harm by going

Re J confirmed at paragraph 17 that the test for threshold is the attribution of harm to the parental behaviour, not parental culpability.

While not concerning unaccompanied asylum-seeking children, the decision of HHJ Thorp in West Sussex County Council v K [2022] EWFC 170 provides a helpful guide to situations where care orders can be made without their being any fault of the parents. In this case, father was deceased, and mother suffered a catastrophic brain haemorrhage and could no longer care for the child; there were no concerns with the mother’s parenting before this. HHJ Thorp stated at paragraph 35:

In those circumstances, in my judgment, threshold is crossed in this case, whether the threshold date is shortly after the mother had her haemorrhage or whether it is in February 2022. The fact of the matter is that if there was no intervention and an order was not made, this is a child who would not have the care from a parent which it would be reasonable to expect a parent to give. The reason for that is that the mother just cannot provide it, through no fault of her own. Equally, in my judgment it is highly likely that as a result of her mother’s incapacity (and, hence, her inability to provide the care which it would be reasonable to expect a parent to give), K would be likely to suffer significant harm in the future if an order were not made. Indeed, no party submitted that she would not be at risk of significant harm in these circumstances.

Further, HHJ Thorp concludes at paragraph 41 that: “[…] it is vital that the Local Authority share parental responsibility so that there is in fact someone who is able to exercise parental responsibility, and so that K can be looked after appropriately.”

Case law has therefore established that threshold can be satisfied where no one can exercise parental responsibility, even in circumstances where there has been no fault of a parent or caregiver.