Are care proceedings always necessary for unaccompanied minors?

Re J (Child Refugees) [2017] EWFC 44‍

This case concerned some unaccompanied minors who travelled to this country from Afghanistan. The boys were aged 10 and 9, and were believed to be uncle and nephew. They spent some time in Calais at the`The Jungle’ refugee camp prior to coming to the U.K. On arrival in the U.K they were placed in foster care by the local authority. Care proceedings were issued and the Judge was invited to give guidance as to similar future unaccompanied minor cases.The court made the care orders sought and approved the care plans for the children. This is a rare case where Brussels IIR Article 13 was engaged as these children did not have any habitual residence. In most instances there will be a see-sawing effect of attaining habitual residence in different countries as people move to a new country. In this case, the children lost habitual residence in their country of origin but did not gain habitual residence elsewhere. Under Article 13 the court is able to accept jurisdiction based on the children’s presence in the jurisdiction, if habitual residence cannot be established. The Article specifically states it shall apply to `refugee children or children internationally displaced because of disturbances occurring in their country’. Mr Justice Peter Jackson had to consider if it was appropriate for the local authority to apply for a care order in this case. The court considered that the fact they were sent away from Afghanistan for their protection, did not mean threshold for care proceedings was not met. The fact they may have suffered more by staying in Afghanistan doesn’t mean they haven’t suffered significant harm, or were not at risk harm by being sent abroad unaccompanied.    Care proceedings won’t be necessary in every case, and many may be capable of being dealt with under s20 Children Act 1989, particularly if the children are older, adequate support is in place and the oversight of the court is not required.The Judge provided broad guidance and carried out a compare and contrast exercise between using s20 and issuing care proceedings, noting the advantages and disadvantages to each approach. One of the most important facts to consider is that without care proceedings being issued, there will be no-one who can exercise parental responsibility for the children, and lack of an order can create uncertainty as to the child’s future care.

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