Looked-after Children - Children, Schools and Families Committee Contents

Memorandum submitted by Save the Children


  Separated children are a vulnerable cohort of children in care with specialist needs, forced to navigate a complex and at times traumatic asylum system. The Care Matters: time for change white paper and the BIA's Better Outcomes: the way forward—Improving the care of unaccompanied asylum seeking children fail to adequately address these needs. In particular, we would like the committee to consider the establishment of a system of guardianship to ensure the welfare needs of separated children are properly safeguarded within the context of the asylum and immigration system, and to ensure their care and support needs are met. In its submission to the Care Matters Green Paper, Save the Children urged the Government to establish a system of guardianship as part of the looked after children reforms. We would urge the committee to do the same.

  1.  Save the Children fights for vulnerable children in the UK and around the world who suffer from poverty, disease, injustice and violence. We work with them to find lifelong answers to the problems they face.

  2.  As a global organisation, we are uniquely placed to ensure that the rights of all asylum seeker, refugee and trafficked children in the UK are protected, promoted and respected in line with the UN Convention on the Rights of the Child (UNCRC), other international human rights instruments and relevant domestic legislation.


  3.  Each year 3,000 separated children[33] come to the UK and claim asylum.[34] In addition unknown numbers of separated children are trafficked into the UK for the purposes of exploitation. Evidence shows that these children are not receiving the support they require to ensure that their best interests are met whilst they are in the UK and in identifying a durable solution for their future. Save the Children is calling on the UK Government to introduce a system of guardianship for these children, in line with international requirements. This would ensure that their welfare needs are properly safeguarded within the context of the asylum determination and immigration process by the immigration authorities, and that their support and care needs are met by all responsible agencies.

Evidence of need

  4.  There is no systematic provision of independent oversight on matters involving separated children who are subject to immigration control. Children may go unrepresented in their asylum application, may be placed in inappropriate accommodation with inadequate support[35] and may not understand the implications of their asylum application. In particular, the long-term solutions for each child may not be fully explored.[36]

    "My key worker is very good but she doesn't always have time to help me so I don't always get the support I need. A guardian should be someone who is always there for me."

    Abdesalah, Separated child in the UK

  5.  In the current system, separated children seeking asylum—some as young as eight years old—have to instruct their own solicitors. Yet these children may not be competent to instruct a legal representative. The question of a child's competence to be party to legal proceedings is addressed in various jurisdictions, but not before the Asylum and Immigration Tribunal (AIT). Citizen children, who go through court proceedings in the Family Court, are recognised as often needing independent advice and support to represent their best interests, and this is provided through Children and Family Court Advisory and Support Service (CAFCASS) a non-departmental public body accountable to Parliament through the Lord Chancellor.[37] CAFCASS properly identifies that its job is "to safeguard and promote the welfare of children ..."[38] It is independent of the courts, social services, education, health authorities and all similar agencies. Children's Guardians represent the interests of a child in court during cases in which social services have become involved in the child's case. The remit includes giving a professional opinion on the best interests of the child; standing up for those interests; making relevant inquiries; writing a report for the court; spending time talking and listening to children to find out what they think and how they feel.

  6.  Similar support is not provided for separated asylum seeking and trafficked children, who in addition are increasingly unable to access the specialist legal advice needed to ensure that they are properly supported and receive a timely and well-considered decision on their asylum application.[39] The Home Offices' Better Outcomes: The way forward paper outlines plans to disperse these children. Save the Children is apprehensive about children's access to legal advice in these situations, and while the Home Office acknowledges the need to ensure that there is adequate provision of legal services within specialist authorities, we continue to have concerns, especially given that in 2006 only 6% of children were granted asylum, with the majority being granted discretionary leave,[40] a decision likely to be based on the age of the claimant rather than on any belief that he or she requires protection under the European Convention on Human Rights.

  7.  The case for guardianship is even more compelling in light of the changes which mean that all children over the age of 12 who make their own asylum application will be interviewed; and the emphasis on return to countries of origin before a child reaches 18 in the Home Office paper Better Outcomes: The way forward.

  8.  Of great concern are the high numbers of separated children—some who are known to have been trafficked, and others who are suspected victims of trafficking—who go missing from local authority care. Save the Children and ECPAT UK research found that in 183 (55%)[41] of the cases of child trafficking examined, the child identified had gone missing. A Government scoping report had similar findings, and in 52 (64%) of the known cases of child trafficking, the children had gone missing.[42] These children had gone missing from a wide range of support arrangements, but many were in inadequate emergency accommodation. Others were housed in shared accommodation with other young adults, which left them vulnerable to abduction or inducement by their traffickers. Based on this evidence, UNICEF UK has recommended that a guardian is appointed for trafficked children as soon as a child victim is identified, or there are reasonable grounds to believe that the child is a victim.[43]

International obligations

  9.  The UN Committee on the Rights of the Child, the treaty monitoring body for the UN Convention on the Rights of the Child, has clearly outlined in its General Comment on the Treatment of Unaccompanied and Separated Children outside their Country of Origin the responsibility of States to provide guardians for unaccompanied and separated children:

    "States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child's best interests. Therefore States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory, in compliance with the Convention and other international instruments."[44]

  10.  Additionally, in its 2002 Concluding Observations, the Committee made a specific recommendation that the UK Government "consider the appointment of guardians to unaccompanied asylum-seeking and refugee children."[45]

  11.  The Government is also obliged to implement the European Union Directive on minimum standards for the reception of applicants for asylum. Article 19 of this directive in particular provides that:

    "Member states shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship| or representation by any other appropriate organisation."[46] And "those working with unaccompanied minors shall have had or receive appropriate training concerning their needs ...."[47]

  12.  Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings states that; "As soon as an unaccompanied child is identified as a victim [of trafficking] | each Party shall provide for representation of the child by a legal guardian, organisation or authority which shall act in the best interests of that child." The UK Government has said that it will ratify this Convention by the end of 2008.

Role and function of a guardian

  13.  It is crucial that a system of guardianship set up for separated children in the UK follows international standards. The functions of the guardian are set out in the UN Committee's General Comment, which sets out that, inter alia:

    "The guardian should be consulted and informed regarding all actions taken in relation to the child. The guardian should have the authority to be present in all planning and decision-making processes, including immigration and appeal hearings, care arrangements and all efforts to search for a durable solution..."[48]

  14.  The Separated Children in Europe Programme (SCEP) Statement of Good Practice[49] also recommends that as soon as a separated child is identified, a guardian or adviser should be appointed—in a long-term perspective—to advise and protect the separated child. The Statement sets out the role and function of a guardian as follows, based on the experiences of member countries:

    —  to ensure that all decisions taken are in the child's best interests;

    —  to ensure that the child has suitable care, accommodation, education, language support and health care provision;

    —  to ensure that the child has suitable legal representation to deal with his/her immigration status or asylum claim;

    —  to consult with and advise the child;

    —  to contribute to a durable solution in the child's best interests;

    —  to provide a link between the child and various organisations who may provide services to the child;

    —  to advocate on the child's behalf where necessary; and

    —  to explore the possibility of family tracing and reunification with the child.

Save the Children response to the current Government position

  15.  In response to a recent Parliamentary question, speaking on behalf of the Government, Lord West of Spithead stated that:

    "We are not considering creating a system of legal guardianship for unaccompanied asylum-seeking children. The role of such a person is unclear and we consider that the children already receive sufficient assistance from the local authority social workers assigned to their care. The children are also referred to the Refugee Council Children's Panel, which provides additional advice and signposts the individuals to appropriate services. Legal assistance is of course available to assist with asylum applications."[50]

  16.  Save the Children believes that the role of the guardian is clear, as set out above by the Separated Children in Europe Programme. The local authority is not adequately resourced to fulfil the effective functions of a guardian as set out by UNHCR[51] and the UNCRC. The UNCRC guidance states that, "agencies or individuals whose interest could potentially be in conflict with those of the child's should not be eligible for guardianship."[52] The Refugee Children's Consortium (RCC) believes that local authority children's services are such an agency. For example, recent research from RCC member the Immigration Law Practitioners' Association (ILPA) highlights the potential conflict of interest for local authorities in carrying out age determinations of young people, because of the resource implications of determining that someone is a child.[53]

  17.  The Refugee Council's Children's Panel is often quoted as providing a guardianship role for unaccompanied children in the UK. In its consultation on the EU Procedures Directive, the Home Office stated that its obligations to "take measures as soon as is possible to ensure that a representative represents and/or assists an unaccompanied minor with respect to the examination of the application"[54] is met through the Children's Panel. This has been refuted by the Refugee Council:

    "The Refugee Council would like to make it clear that the statement made in the last sentence of paragraph 66 of the Implementation Paper is inaccurate: the Children's Panel of the Refugee Council does not provide legal representation. The BIA is also fully aware that although the Children's Panel is able to help a large number of unaccompanied children to access legal representation this is by no means guaranteed for all children seeking asylum on their own".[55]

  18.  The role of the Panel is not a statutory one although it is funded by the Home Office. There is no obligation on children's services to work together with the Panel of Advisers or vice versa. It has no mandate to report, make recommendations or ascertain the feelings of a child. It does not act as an "appropriate adult", litigation friend or court welfare officer. Valuable NGO agencies such as the Refugee Council Children's Panel are no substitute for statutory guardianship.

  We urge the Committee to recommend that:

    —  Every separated child who arrives in the UK and is subject to immigration control should be appointed a guardian who has powers to represent the child's best interest.

    —  The Department for Children Schools and Families and relevant departments in Scotland and Wales to consider, in conjunction with Better Outcomes: The way forward, the piloting of a system of guardian for unaccompanied children. Save the Children is happy to work with DCSF and the Home Office, as well as the relevant departments in Scotland and Wales to develop a model of guardianship for separated children.

May 2008

33   By separated we mean separated from both parents and not being cared for by an adult who by law or custom has responsibility to do so. Back

34   Home Office Statistics. Back

35   See for example, Save the Children UK (2005) Local Authority Support to Unaccompanied Asylum-Seeking Young People. Changes since the Hillingdon Judgement Back

36   Crawley, H (2006), Child first, migrant second, ILPA, London p32 Back

37   see Family Court Practice-Jordan Publishing Ltd-commentary on text of Statute. Back

38   "The Role of CAFCASS" http://www.cafcass.gov.uk/English/Publications/information/TheRoleofCafcass.pdf Back

39   Crawley, H (2006), Child first, Migrant Second, ILPA, London p29. Back

40   Home Office (2007) Asylum Statistics United Kingdom 2006. Back

41   CEOP (2007), A Scoping Project on Child Trafficking in the UK. Back

42   ECPAT UK (2007) Missing Out: A study of child trafficking in the North-West, North-East and West MidlandsBack

43   Unicef UK & Ecpat UK, 2007, Rights here, rights now: Recommendations for protecting trafficked childrenBack

44   General Comment No.6 (2005) on Treatment of Unaccompanied and Separated Children outside their Country of Origin; articles 18 (2) and 20 (1) paragraph 33. Back

45   UN Committee on the Rights of the Child (2002) Concluding Observations on the United Kingdom of Great Britain and Northern Ireland. Back

46   Article 19 (1). Back

47   Article 19 (4). Back

48   http://www.ohchr.org/english/bodies/crc/comments.htm articles 18 (2) and 20 (1) paragraph 33. Back

49   Separated Children in Europe Programme, Statement of Good Practice 2004. Back

50   House of Lords Hansard, 14 November 2007, Col No. XXX. Our emphasis in bold. Back

51   UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, Geneva, February 1997, p 7. Back

52   http://www.ohchr.org/english/bodies/crc/comments.htm articles 18 (2) and 20 (1) paragraph 33. Back

53   Crawley, H, 2007, When is a Child not a Child? ILPA. Back

54   Article 17 (1) (a) of Council Directive 2005/85/EC of 1 December 2005, laying down minimum standards on procedures in Member States for granting and withdrawing refugee status. Back

55   Refugee Council Response to UK Implementation of Council Directive 2005/85/EC of 1 December 2005, laying down minimum standards on procedures in Member States for granting and withdrawing refugee status. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2009
Prepared 20 April 2009