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 forwardImproving 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
come to the UK and claim asylum.
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
and may not understand the implications of their asylum application.
In particular, the long-term solutions for each child may not
be fully explored.
"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 asylumsome as young as eight years oldhave
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.
CAFCASS properly identifies that its job is "to safeguard
and promote the welfare of children ..."
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.
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,
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 childrensome who are known to have been trafficked,
and others who are suspected victims of traffickingwho
go missing from local authority care. Save the Children and ECPAT
UK research found that in 183 (55%)
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.
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.
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."
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."
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
"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
And "those working with unaccompanied minors shall have had
or receive appropriate training concerning their needs ...."
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..."
14. The Separated Children in Europe Programme
(SCEP) Statement of Good Practice
also recommends that as soon as a separated child is identified,
a guardian or adviser should be appointedin a long-term
perspectiveto 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
to ensure that the child has suitable
legal representation to deal with his/her immigration status or
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
15. In response to a recent Parliamentary
question, speaking on behalf of the Government, Lord West of Spithead
"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
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
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."
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.
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"
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".
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.
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
Home Office Statistics. Back
See for example, Save the Children UK (2005) Local Authority
Support to Unaccompanied Asylum-Seeking Young People. Changes
since the Hillingdon Judgement Back
Crawley, H (2006), Child first, migrant second, ILPA, London
see Family Court Practice-Jordan Publishing Ltd-commentary on
text of Statute. Back
"The Role of CAFCASS" http://www.cafcass.gov.uk/English/Publications/information/TheRoleofCafcass.pdf Back
Crawley, H (2006), Child first, Migrant Second, ILPA, London
Home Office (2007) Asylum Statistics United Kingdom 2006. Back
CEOP (2007), A Scoping Project on Child Trafficking in the
ECPAT UK (2007) Missing Out: A study of child trafficking in
the North-West, North-East and West Midlands. Back
Unicef UK & Ecpat UK, 2007, Rights here, rights now: Recommendations
for protecting trafficked children. Back
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
UN Committee on the Rights of the Child (2002) Concluding Observations
on the United Kingdom of Great Britain and Northern Ireland. Back
Article 19 (1). Back
Article 19 (4). Back
18 (2) and 20 (1) paragraph 33. Back
Separated Children in Europe Programme, Statement of Good Practice
House of Lords Hansard, 14 November 2007, Col No. XXX. Our emphasis
in bold. Back
UNHCR, Guidelines on Policies and Procedures in dealing with
Unaccompanied Children Seeking Asylum, Geneva, February 1997,
p 7. Back
18 (2) and 20 (1) paragraph 33. Back
Crawley, H, 2007, When is a Child not a Child? ILPA. Back
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
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