Supplementary memorandum submitted by
the Anti-Trafficking Legal Project
As stated in our original submission the Anti-Trafficking
Legal Project (ATLeP) is an informal network of practitioners
who advise, represent and support victims of trafficking and other
vulnerable people.
On 17 June 2008, four members of ATLeP gave
oral evidence before the Home Affairs Committee. In their evidence
they raised the importance of ensuring appropriate Social Services
support for child victims of trafficking and agreed at the request
of the Committee to prepare a note discussing this issue in more
detail.
As a preliminary point, we would note that Home
Office, ECPAT and international research shows that many trafficked
victims are orphans, stranded children or sold by their families/carers.
They are trafficked because of these vulnerabilities. Their experience
of sex grooming, sexual assault and/or enforced sex or domestic
labour work compounds their vulnerability. It is in that context
that social services care becomes important. The children we represent
are often accepted as refugees. At the very least they will often
have been given discretionary leave until they turn 17½/18—that
is: they have formal, legal immigration status and an expectation
of continuing residence in the UK. Alternatively they are receiving
social services support while their immigration status is resolved.
Section 20 of the Children Act 1989 (provision of accommodation
fro children in need in a given local authority area) makes no
distinction between children whose immigration status is certain
or uncertain.
Notwithstanding that numbers of such children
have or quickly acquire formal immigration/refugee status; such
trafficked and unaccompanied children are treated as if they were
temporary entrants whose treatment and care is determined solely
by their immigrant identity, rather than their actual immigration
status or their real vulnerability and needs. Our recommendation
is directed to deal with the problems this creates for these children.
ATLeP, for reasons set out in full below, strongly
recommends that the following measures be put in place in order
to meet the needs of trafficked children in the UK:
(i) Social Services departments should be required
to conduct a full individual assessment of the needs of trafficked
children for whom they are responsible under the Children's Act
1989. This requirement for a full needs assessment should displace
the present assumption that local authorities owe only a duty
to accommodate such children.
(ii) Social Services departments should pay particular
regard to the need such children may manifest for a safe, secure
home in a foster family. Where such foster family is provided
and is working well for such children, social services should
seek wherever possible to maintain that placement for the child
until he/she reaches her majority (18 years old). This explicit
guidance is required because of the real vulnerability of such
children and the risk that as adolescents or young adults they
will fall prey to traffickers in the UK without such family supervision
and care. While social services have the power under s20 to continue
to provide accommodation to children over 16 and under 21 whose
welfare is likely to be seriously prejudiced if accommodation
is not provided, experience suggests that if accommodation is
provided, it is provided in hostels for the homeless and not foster
homes.
(iii) As part of the full needs assessment undertaken
for such children, Social Services departments should, if required,
put in place individual plans for the immediate and long term
needs of trafficked children in their care, ensuring they are
linked into educational, social care and health provision, therapeutic
support and counselling, and appropriate resources in the community.
(iv) All trafficked children accommodated by
social services should be allocated an independent legal guardian.
Such guardian should continue to be the mentor and guardian for
young adults who continue to receive assistance from Social Services
under the leaving care arrangements.
(v) The Director of Public Prosecutions should
be urged to refrain from prosecuting trafficked children for immigration/criminal
offences relating to their trafficking (eg. document offences).
The Home Office People Trafficking Crime Reduction
Toolkit[161]
provides guidance on the role of Social Services and other agencies
in providing protection and support to trafficked children. The
guidance states that:
"Trafficked children must always be dealt
with within mainstream child care policies and procedures, including
child protection where necessary but in addition they may require
specialist accommodation and casework by skilled specialist staff."
And that:
"All child care agencies—social services,
health, education and the police—and ACPCs need to consider
what would provide the best protection for children in the specific
cases presented. This should include plans for their immediate
and their longer term needs."
ATLeP is aware however that at present there
is no uniform practice within the Social Services and that most
trafficked children whom we have represented are not dealt with
within mainstream child care policies and procedures. In the first
instance they are rarely provided with a full needs assessment,
although such assessment is a core part of mainstream practice
and would be provided to other "home" children in need.
It is also our experience that most young unaccompanied/trafficked
children are routinely placed in hostels rather than foster care
placements, even where the young child is severely traumatised
and at risk. It is of particular concern to note that even where
a foster placement is arranged, Social Services departments frequently
remove trafficked children from stable foster placements when
the children become 16 years old and place them in hostels. To
our knowledge such adolescent children have then fallen in with
traffickers or otherwise become involved in inappropriate employment
or relationships. These risks arise because many of these trafficking
victims have very low self-esteem, feel shame at their earlier
activities and have no family or support base to rely upon. We
have had young trafficked clients who have done extremely well
at their studies during their terms in foster placement who, when
moved to hostel accommodation have left school, and begun working
in industries such as "Nail Bars" which are known to
be targetted by organised crime and where they are in consequence
vulnerable to further sexual exploitation and trafficking. From
our extended knowledge of such adolescent women we are clear they
would have remained in school and safe from protection if the
required "parental"/foster carer supervision had been
maintained. It is possible to compare the experiences of two young
women from West Africa placed with the same local authority. Both
were initially placed with the same foster carer. The first was
then moved to a different placement where she thrived. She is
completing her "A" levels at college and having now
turned 18, has recently moved into a supported hostel. The second
was moved to a hostel when she was 16 years old. She was raped
while living in the hostel and has required considerable support
from an NSPCC project to come to terms with her experiences in
her home country and the UK and to persevere with their education.
A further example concerns a young woman trafficked
to the UK aged 15 and placed in hostel accommodation and then
in shared housing with other young women, none of whom had a common
language. The child was swiftly traced by her trafficker who forced
her back into prostitution and prevented her from attending college
or finding a normal job. Eventually social services and the police
intervened, having been aware of the situation for some time.
The victim now has the right to remain permanently in the UK but
having spent five years in the country, is still illiterate in
English.
The Home Office Trafficking Toolkit[162]
states that trafficked children should be placed in a trusting
and safe environment with carers who understand their needs, and
states clearly that no young person aged under 18 should be placed
in unassisted accommodation such as bed and breakfast. In our
experience this guidance is not being followed. The removal of
trafficked children from stable foster placements at the age of
16 appears even more inappropriate in the light of the announcement
by the government of a pilot programme to provide for young people
in care to remain in their foster placements beyond the existing
age limit of 18 years to ensure stable family placements and supported
transition to adulthood[163].
Trafficked children, as with all unaccompanied children
are simply provided with care arrangements reflecting their immigration
status rather than their individual care needs. These criticisms
are borne out in the detailed research by ILPA into the age assessment
processes for unaccompanied children.
Trafficked children have a particular need for
consistent care and protection. Such an approach would be supported
by the Home Office People Trafficking Crime Reduction Toolkit.
ATLeP believes that the provision of consistent emotional support
in foster placements until the age of eighteen is essential to
ensuring the ongoing safety and protection of trafficked children.
Linking children into protective networks such as education and
health services has also been identified as a protective factor[164]
and in our view should form part of a package of support to trafficked
children to meet their immediate and long term protection needs.
It is ATLeP's view that promoting the recovery
of these children is not only key to their integration into British
society but it is also a necessary component if these children
are to be returned to their country of origin in order to prevent
their exploitation and re-trafficking on return. We should note
that a fair proportion of our clients are re-trafficked to the
UK, and each of the core source counties for trafficking victims
is shown to have high re-trafficking rates.
FIXED FEES
In the summer of 2007, ATLeP conducted research
among suppliers of immigration advice under legal services commission
franchises about their average case costs in conducting asylum
and human rights applications cases for victims of human trafficking.
Thirteen suppliers took part in the survey. The number of firms
was not large but they were a representative sample of all firms
working in this field in that they represented firms within and
outside London and firms which had a nationwide presence, firms
with an LSC solicitor's contract and those with a not-for-profit
contract. The trafficking case loads of those that took part were
generally well above average and we were confident that we would
receive an accurate indication of the preparation times required
for trafficking cases. The data was then analysed and compared
to provide mean times and costs for preparation of the case at
both application and appeal stages and to compare disbursement
costs. We are very confident that our data is representative and
accurate. The reason for undertaking this research was to assess
the impact of the introduction of the fixed fee regime on suppliers
and to ascertain whether it would limit the availability of legal
advice and representation for this client group.
The Graduated fees scheme was introduced on
1 October 2007. After this date, in cases where the fixed fee
applied, suppliers would be paid only £450 profit costs at
the initial Legal Help stage of a case and £600 profit costs
at the CLR appeal stage of a case. There are limits on disbursements
of £400 at the Legal Help stage and £600 at the CLR
stage and fixed amounts for representation by counsel at the appeal
and any pre-hearing review. The disbursement amounts cover all
costs incurred for interpreting, medical reports and country expert
reports. An extension of the disbursement limit may be requested
from the Legal Services Commission but there is no possible extension
to the GFF paid to solicitors.
Not all cases are covered by the GFF, and a
full list of the work excluded from the GFF can be supplied. In
broad terms any new asylum or immigration application made after
1/10/07 will be subject to the fixed fee, although asylum claims
made by minors are not. Fresh asylum claims made after 1/10/07
by applicants who first applied for asylum prior to 1/10/07 are
also outside the fixed fee regime.
Cases which are not subject to the fixed fee
will be paid according to the hourly rates regime which is similar
to the scheme which existed prior to 1/10/07. Under the hourly
rates regime, there are limits of £800 for Legal Help and
£1600 for CLR. There are again limits on disbursements but
extensions of all elements including profit costs may be granted
by the LSC.
Prior to October 2007, LSC franchise holders
either worked under a solicitors contract in which the financial
limits were as described in the new hourly rates regime or under
a Not for Profit contract where suppliers were allowed a certain
number of hours per claim (eg 10 hours at £50 an hour). Under
both schemes extensions of amounts/ hours could be granted on
application to the LSC.
THE IMPACT
OF GFF
Where a case is subject to a fixed fee, the
amounts paid by the LSC will equate to under eight hours' work
by a caseworker for the Legal Help stage (hourly rate £57.35)
and just over nine hours' work at the CLR stage. (Hourly rate
£61.20).
The research conducted by ATLeP showed that
on average caseworkers required between 10 and 20 hours to take
instructions from a victim of trafficking—to take a statement,
prepare the client for interview etc—at the legal help stage.
The consequences of this shortfall between the hours needed and
the hours paid for are clear—either this essential work
in eliciting the client's painful account is not undertaken (and
may not then be disclosed on appeal) or the firms undertake this
work without being paid for it. As all publicly funded legal work
now has a very slim profit margin, this largesse might be expended
as an exception but not routinely on trafficking cases. Our expectation
is that many firms will cease to take on trafficking work because
it is a financial drain rather than a contribution to firms' resources.
The Legal Services Commission has introduced
an exceptional cases category, for GFF cases in which the profit
costs of a case at both legal help and CLR stages of the claim
exceed three times the combined fixed fee. This means that the
profit costs of a case must exceed three times the total of £450
and £600 ie must exceed £3150. Where the exceptional
cases threshold is reached, the LSC will assess whether they will
pay for the work at hourly rates. While this arrangement provides
some relief from the fixed fee regime, it is a difficult option
for most firms. It means that firms carry the costs for the case
without any guarantee of recouping those costs. From our experience
very few firms are willing to carry many such cases.
In any event ATLeP's research shows that although
routinely (ie in every case) trafficking asylum applications would
incur costs exceeding the fixed fees, usually costing double the
fixed fees, they would not reach the exceptional threshold of
three times the costs. The supplier of the legal advice under
the franchise would then have to consider whether they had other
means of subsidising the work or whether they simply cease to
act in all but the most straightforward cases. We anticipate that
the fee arrangements will impact disproportionately on young women
applicants as many suppliers will decline to take their cases
on the working assumption that if the case involves sexual trauma
there is too much preparation time needed for the fee paid.
ATLeP has made representations to the LSC that
cases involving victims of trafficking should be taken out of
the fixed fee regime. As stated this is already done for unaccompanied
asylum seeking children. As a group, victims of trafficking display
extreme vulnerability, may require specialist reports from several
sources and take time to build trust with their legal representatives.
Our statistical research and our own extended experience have
shown that the legal work on an asylum claim by a victim of trafficking
cannot be completed within eight hours.
Our research analysed the costs and outcomes
of 70 cases. Of those that had finally been decided by the end
of the research period, 70% had received a positive decision (and
subsequent grant of protection in the UK) as a result of the first
appeal and 10% had been decided positively by the Home Office
at first application. This evidence challenges the suggestion
that unnecessary costs are incurred by suppliers lodging numerous
appeals. It suggests on the contrary that the provision of adequate
competent legal advice at an early stage will result in the resolution
of a case at an earlier stage, thereby saving costs.
Faced with the introduction of fixed fees, several
suppliers of immigration advice ceased to operate under the franchise
and suppliers anticipate that other firms will follow.
2 July 2008
161 Home Office (2003) People Trafficking Crime
Reduction Toolkit (London: Home Office), available at: http://www.crimereduction.homeoffice.gov.uk/toolkits/tp00.htm Back
162
ibid Back
163
Department for Children, Schools and Families "Young people
allowed to stay in foster families beyond the age of 18",
Press Release 16 June 2008, available at: http://www.dfes.gov.uk/pns/DisplayPN.cgi?pn_id=2008_0115 Back
164
Harper and Scott (2005) Meeting the needs of sexually exploited
young people (London: Barnardo's), p.104 Back
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