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Wolfreys, Allison
(2024).
Abstract
This article considers the unwillingness of the family court in Article 39 v Secretary of State for the Home Department to endorse the use of the inherent jurisdiction for a group of unaccompanied asylum-seeking children who arrived in small boats on the south of England and were placed in Home Office run unregulated hotel accommodation. Shortly thereafter they fled and were reported missing. In addition to confirming the Secretary of State for Education’s overall responsibility for the safeguarding of children, the case re-states the limits of the inherent jurisdiction, where there are pre-existing statutory remedies. It was held that, as the Children Act 1989 already imposes duties upon local authorities for the assessment and subsequent decision-making for children in need, no gap in law exists to justify the invocation of the inherent jurisdiction of the family court for the protection of the missing children.
The article asserts that the decision is problematic for two reasons. First, it is at odds with the long-held use by the family court of the court’s responsibility to use the inherent jurisdiction to recognise and protect the most vulnerable in society. Second, there is a misalignment with previous decisions where the inherent jurisdiction’s use was sanctioned and used pragmatically in order to meet the pressing safeguarding needs of vulnerable children with settled status in the UK, despite there being no gap or lacuna in the law.
Finally, the article concludes that the inadequacy of resources provided to local authorities to meet their statutory duties and protect vulnerable children has directly led to different, discriminatory treatment and the exclusion of asylum-seeking unaccompanied children in need from statutory care and protection.
CORE (COnnecting REpositories)
CORE (COnnecting REpositories)
