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Freshfields Risk & Compliance

| 7 minutes read

Rolling judicial reviews: does the ECPAT UK claim herald a new era of court monitoring in complex cases?

On 5 June 2024, the Administrative Court gave its final word on relief in the (relatively) long-running ECPAT UK judicial review (see R (ECPAT UK) v Kent CC, SSHD [2023] EWHC 1953 (Admin)).

The case centred on Kent County Council’s (KCC) failure to meet its statutory duty to look after unaccompanied asylum-seeking children (UAS children) arriving at its coast and the Home Secretary’s systematic, routine and (ultimately) unlawful use of hotels to accommodate them outside of the care system.

While the Court’s findings of illegality on the part of both defendants were uncontroversial – indeed KCC conceded it was acting (owing to a purported lack of resource) illegally – it was the Court’s willingness to extend its usual role and monitor the defendants’ compliance with its ruling which makes this case unique.

In this blog we explore (i) the positions courts have taken to monitoring until recently; (ii) the new powers introduced by the Judicial Review and Courts Act 2022; (iii) how these were deployed in the ECPAT UK claim; and (iv) what this could mean for future judicial review cases.

How should court monitoring work?

As Mr Justice Chamberlain explained in R (ECPAT UK) v Kent CC, SSHD [2023] EWHC 2199 (Admin) (the Relief Judgment): “[t]he normal position in judicial review is that the court determines the issues before it and then decides what relief to give on one occasion, at which point it is functus officio. The consequence is that, if unlawful conduct identified in the judgment continues after the court’s order, the court can do nothing about it, unless and until a further judicial review claim is brought by the same or another claimant. That further claim will need permission to proceed.” 

The Court gave two principal reasons for that position. First, public authorities can ordinarily be trusted to comply with a court’s findings, being “engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law”. Second, a claim that unlawful behaviour persists post-judgment will involve distinct factual allegations – and those allegations should be properly pleaded. As Chamberlain J explained, “[t]he requirement for permission acts as a safeguard, protecting public authorities from the considerable resource implications of having to defend allegations that are not reasonably arguable”.

In other words, judicial review is a one-shot event where if permission is granted, judgment is given, and relief is ordered.

But as with all rules, there are exceptions, and the ECPAT UK case now serves as an excellent example of how the English courts may exercise their powers to monitor compliance with their orders.

Court monitoring in England and Wales

Prior to 2022, the position in England and Wales on monitoring was governed by the test established in ClientEarth v Secretary of State for Food, Environment and Rural Affairs (No 3) [2018] EWHC 398  (Admin). In that case, the UK Government was found to be failing to meet its legal obligation to reduce air pollution. To ensure compliance, the Administrative Court made an order enabling ClientEarth to bring the issue back to the Court without needing to apply for fresh permission for judicial review, if there was evidence the Government was still failing to comply with its duty. In making the order, Garnham J noted its “wholly exceptional” nature whilst expressing the need for greater flexibility in supervision. He referred to the judgment of R (On the application of P) v Essex County Council [2004] EWHC 2027 (Admin), where it was noted that the court’s function did not include ongoing monitoring. However, Garnham J explained he did not interpret that as excluding the presence of the court’s jurisdiction to make a monitoring order “if the circumstances demand it”.

The Judicial Review and Courts Act 2022 introduced a new remedy in judicial review proceedings by adding section 29A to the Senior Courts Act 1981 (the 1981 Act). A quashing order no longer needs to take immediate effect; it can now be suspended to a specified later date, with the court able to remove or limit any retrospective effect (including the period between the making of the order and the quashing coming into effect). The quashing order may now also be subject to conditions before it takes effect. It is specifically this development of attaching conditions to suspended orders, that provides the court with a novel form of supervision. 

The ECPAT UK judicial review

This case concerned the powers and duties of KCC and the Home Secretary under the Children Act 1989 (CA 89) regarding the treatment of UAS children arriving in the UK. Beginning in 2021, the Home Secretary systematically and routinely housed UAS children in hotels that were outside of KCC’s care system. Around 5,400 children were accommodated in this way, with some as young as nine years old. It is estimated that over four hundred went missing, many of whom are expected to have been trafficked or subjected to criminal exploitation.

ECPAT UK, a leading children’s rights organisation working to protect children from trafficking and exploitation, brought a successful judicial review claim against KCC and the Home Secretary in respect of this practice. The case culminated in a High Court judgment on 27 July 2023 which declared unlawful both the Home Secretary’s practice of housing UAS children in hotels and KCC’s policy of denying statutory care to all such children in need in its area. The Court also ruled that both the Home Secretary and KCC acted unlawfully by entering into an agreement (the Kent Protocol) specifying that beyond a certain ‘cap’ KCC would refuse to discharge its obligations under CA 89. The Court found that the Home Secretary acted unlawfully in other respects, including by transferring UAS children under the National Transfer Scheme (the NTS) to other local authorities without transferring local authorities playing any role (the NTS Protocol), and for the way in which UAS children were accommodated in hotels. 

Quashing orders in the ECPAT UK judicial review

Following this judgment, the Administrative Court adopted a novel approach to relief. In exercise of its new powers under the 1981 Act, the Court issued suspended quashing orders of the unlawful policies (the Kent Protocol and NTS Protocol), subject to the satisfaction by KCC and the Home Secretary of certain conditions (including KCC having to take all possible steps to increase its capacity to accommodate and look after all UAS children), all of which were aimed at correcting the illegality. Chamberlain J explained it would be “counterproductive” if the unlawful practices were stopped immediately, as it may place UAS children at risk. 

Very unusually, the compliance of KCC and the Home Secretary with these conditions was then subject to monitoring by the Court in a series of ongoing relief hearings. Chamberlain J noted that “[w]here the power in s. 29A(1)(a) to suspend a quashing order is exercised, it may be necessary to hold a further hearing to check that the conditions for suspension have been complied with and to determine whether the suspension should be extended” but noted that it will only be “rare occasions” where such a departure from the normal approach is “justified”.

Further hearings in the ECPAT UK judicial review

Chamberlain J fixed a hearing for 17 August 2023 to determine whether additional relief was needed, and called for KCC and the Home Secretary to file evidence of the steps taken to ensure that each UAS child arriving in Kent was housed and looked after by KCC in compliance with its duties under CA 89. Following this hearing he ruled that the order quashing the Kent Protocol would take effect on the date originally ordered, but that there would be an extension to the suspension of the quashing order of the NTS Protocol, to enable the Home Secretary to transfer the remaining UAS children to an alternative local authority. Chamberlain J said there was "a continuing remedial role for the court" given that “considerable work remains to be done" and that "[i]f the court does not retain some further role, there is a serious danger that the parties will revert to positions of each blaming the other and that these positions will lead, again, to an impasse". While he acknowledged the burden this continuing monitoring placed on KCC, he noted that the court’s continued supervision had “focussed minds and achieved results”.

The next hearing was held on 15 September 2023 at which Chamberlain J ordered the Home Secretary to take all possible steps to transfer UAS children into local authority care. A further hearing was held on 15 December 2023 at which, among other things, KCC and the Home Secretary were directed to file an agreed action plan setting out how each UAS child arriving in Kent would be accommodated and looked after by KCC under CA 89. On 6 March 2024, KCC and the Home Secretary agreed a funding settlement, with the Home Secretary funding all capital and revenue costs associated with the increase in KCC’s capacity to take UAS children.

The process of developing this action plan gave rise to further questions relating to the scope of KCC’s duty under section 20 of the CA 89 and drew attention to KCC’s practice of issuing “section 11” notices under the Children Act 2004 to indicate that KCC could not safely accommodate UAS children.

The final relief hearing was held on 14 March 2024, following which the Court issued a judgment on 5 June 2024, ruling on a number of matters including the section 20 CA 89 duty. Chamberlain J clarified that KCC’s section 20 duty to accommodate and look after UAS children arriving in Kent applies “irrespective of the resources of the local authority” and that this should not be limited or qualified by KCC’s duties under section 11 of the CA 04. Consequently, Chamberlain J found that KCC’s “section 11 notices” had “no apparent statutory basis”. KCC hence still had an obligation to ensure that its responsibility to safeguard and promote the welfare of all UAS children was appropriately discharged.

Looking forward

The ECPAT UK judicial review has ensured that UAS children will no longer be subjected to the unlawful practices that denied them access to the statutory child protection framework and which ultimately saw hundreds of children going missing. 

However, the case is equally significant from a legal perspective, as it provides guidance on the circumstances under which a court may make a suspended quashing order under the 1981 Act; namely where requiring a public authority to cease unlawful conduct immediately would have a significantly detrimental effect. The case has been dubbed a ‘rolling’ judicial review – one of the first of its kind – and one that may herald an era of enhanced court monitoring where the Administrative Court takes a more active role in ensuring compliance with its decisions in more complex cases. 



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