Education Committee - Children first: the child protection system in EnglandFurther written evidence submitted by Children and Families Across Borders

SUBMISSION ON PROPOSAL THAT ALL TRAFFICKED AND UNACCOMPANIED ASYLUM SEEKING CHILDREN BE MADE SUBJECT TO CARE ORDERS AS OPPOSED TO BEING ACCOMMODATED UNDER SECTION 20 OF THE 1989 CHILDREN ACT

Introduction

1. The trafficking of children is an increasing phenomenon and more trafficked children and young people are coming to the attention of local authorities and are becoming looked after.

2. At present the overwhelming majority of these children are accommodated under section 20 of the 1989 Children Act and are dealt with, legally, in the way that unaccompanied asylum seeking children (UASC’s) have been dealt with since the Hillingdon judgement. Save that the local authority does not get reimbursement rates for looking after trafficked children if they are not classed as unaccompanied asylum seeking children.

3. It is CFAB’s view that because all trafficked children, and indeed all UASC’s do not have a parent or carer to look after them, nor any competent adult in the UK with parental responsibility to agree to accommodation under section 20, they should be made subject to section .31 orders so that these children and young people have someone in the UK with parental responsibility. Section 20 requires the local authority to accommodate where there is not a parent carer under section  20(1) and it is only 20(7) where this can be done on a voluntary basis with the agreement of a parent/carer. It is not the section 20 provision that is legally wrong, but the fact that it is used for children whose profiles suggest serious harm/risk factors that would make section 31 the appropriate vehicle. Section 20 fails to provide these children with someone in the UK with parental responsibility.

History

4. “Unaccompanied children who are assessed by a social services department to be in need are cared for by a social services department under the provisions of the Children Act 1989.”

5. (Before the Hillingdon Judgement) local authorities had two options available to them. After an assessment, the child may be “looked after” or “accommodated” under the provisions of section 20 of the Children Act 1989. A “looked-after” child is entitled to have a named social worker, and is also entitled to things such as a care plan, an independent visitor and some continued support post leaving care. Alternatively, a child or young person may be “supported” under the provisions of section 17 of the Children Act 1989. The social services department assesses the child’s needs before concluding whether or not that child requires its support services. If it concludes that the child is “in need” of support, the social services department may decide, under section 17, to place the child with relatives, with foster carers, in a residential home, in supported local authority accommodation or in a hostel. Where a child is provided with accommodation under section 17, he/she is not classed as “looked after” for the purposes of the Children (Leaving Care) Act, 2000.

6. Section 17 of the Children Act, mentioned above, sets out the general duties towards a child “in need” by imposing a duty on the local authority to safeguard and promote the welfare of those children in its area who are in need. The local authority is under a duty to promote the upbringing of children by providing a range and level of services suited to the needs of those children. This may also include providing accommodation for the family of the child, assistance in kind and, in exceptional circumstances, assistance in cash (see amendment to section 17(6) of the Children Act, 1989 made by section 116 of the Adoption and Children Act, 2000, which came into force on 7 November 2002). Local authorities may arrange for some other organisation to provide the services mentioned previously, but the responsibility still remains that of the Local Authority. In contrast, Section 20 of the same Act imposes a duty on the local authority to “look after” a child in need. This may involve providing accommodation to a child in its area who is in need as a result of there either being no one with parental responsibility, no one able to provide suitable accommodation for the child or because the child has been lost or abandoned. In providing for such children, the local authority has to safeguard the welfare of the child and try to keep siblings together. Section 20 also provides that a local authority should maintain a service for those leaving care.

7. Under the Children (Leaving Care) Act, 2000, a person who was, before attaining 18 years of age, a child being “looked after” by the local authority under the Children Act, 1989, (either as an “eligible child” or as a “relevant child”) is classed as a “former relevant child” and is entitled to certain types of continued assistance from the local authority; in particular, advice and assistance in relation to employment, education and training until the age of 21 years. In some cases, this responsibility extends even beyond the age of 21 years. The purpose of the 2000 Act is to assist those young people who are moving from care to establish an independent living. It aims to achieve this by amending the Children Act, 1989, placing a duty on local authorities to assess the needs of this category of person, and to meet those needs.

8. Until 2003, when the Department of Health issued Local Government Circular LAC (2003) 13, most unaccompanied child asylum seekers were given support under section 17 of the Children Act, 1989. The 2003 Circular, however, stated that, as a matter of policy, unaccompanied children with no parent or guardian in the UK should be supported instead under section 20 of the 1989 Children Act:

(a)“where a child has no parent or guardian in this country, … the presumption should be that he would fall within the scope of section 20 ( of the Children Act, 1989) and become looked after, unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate. While the needs assessment is being carried out, he should be cared for under section 20.” (Local Government Circular LAC (2003) 13)

9. The 2003 Circular adds that if an older child does not wish to be “looked after” under Section 20, then the local authority concerned might decide, after taking into account the child’s wishes, that the child is able, with the help of section 17’s support, to look after him/herself. The Circular was issued around the time of the Hillingdon Judgement, R (Berhe) v Hillingdon London Borough, [2004] 1 FLR 439, which was thought to have brought further clarity to an area that had previously suffered from some confusion. However, in January, 2005, a report by the Refugee Council, surveying 19 local authorities, indicated a disparity of responses by these authorities to the guidance provided by the 2003 Circular, thus suggesting a continued lack of consistency of approach towards unaccompanied asylum seeking children (Dennis, 2005). A further report in 2005 from Save the Children, building on the work done by the Refugee Council, echoed similar criticisms of the way in which local authority support to unaccompanied asylum-seeking children is being provided in practice (Free, 2005). Between November 2004 and May 2005 Save the Children contacted 18 representative local authorities in England and carried out detailed interviews concerning their responses to the Hillingdon Judgment and the 2003 local authority Circular 13. It was found that, out of the 18 authorities involved, one had been providing section 20 support to young unaccompanied asylum—seekers on arrival in the UK even before 2003, 11 had made the change to providing Section 20 support since 2003, whilst the other 6 were still not providing Section 20 support in this situation. As regards the longer term support of such young people, most of the 12 local authorities mentioned above continued to provide the more extensive Section 20 support after an assessment of the individual case had been made.

10. This transfer of support from section 17 to section 20 has undoubtedly put extra pressure on local authorities, but at the same time it is not a guarantee that the standards of care that each young person now receives is any higher than before. Clearly, resources are an issue here and some local authorities interviewed for the Save the Children report expressed concerns about the level of support which they were in practice able to offer under section 20. These concerns included the difficulty in providing social workers for all UASCs, not having personal education plans for all such young people and the quality and level of support being provided by some of the semi-independent contractors who provide accommodation in some local authority areas to UASCs. More importantly, young UASCs who should be transferred to the leaving care services team were not always transferred at the right stage because of resource difficulties. In all, the report presented a mixed picture of how those local authorities involved had responded to the Hillingdon Judgment and LAC 13. Whilst there were many positive signs, there were also concerns expressed by the local authorities themselves about the support which they were able to provide to UASCs. Barriers to change centred on five main areas, the most important of which were funding, conflicting government policy and the difficulties encountered working with other statutory providers. Funding problems were a very significant barrier encountered to providing UASCs with the right kind of support and this problem related not just to the level of funding but also to administration of that funding. Conflicting policies emanating from the Home Office and the Department for Education and Skills (DfE), to which responsibility for UASCs was transferred from the Department of Health in 2003, however, are also a problem. A lack of joined-up thinking and co-ordination between the Home Office and the DfE has resulted in “mixed messages” and “conflicting agendas.”

11. An example of the sort of mixed message referred to above can be seen in the way in which the Home Office and the DfE approach the question of support to 16 and 17 year old UASCs. Circular 13 places emphasis on a thorough needs assessment of each individual case, which usually means providing section 20 support to most children in this age-band, but funding from the Home Office is half that for this age-band as compared to that available for the under 16 year old category. The end result is often that, whilst the local authority ought to be providing support to the 16 plus UASCs under Section 20 of the Children Act, 1989, there is insufficient funding available to do so.

12. Even within the DfE there are conflicting polices at work, which cause difficulties for local authorities. An example of this can be seen in the way in which the DfE excludes many young UASCs from having access to certain forms of funding which would improve the support which they receive under section 20 and under the Children (Leaving Care) Act, 2000. Both the latter, in combination with LAC 13, would suggest that most 16 and 17 year old UASCs are entitled to section 20 or to leaving care support, but these children may not, on the other hand, be entitled to a student loan or to receive education maintenance allowance which would facilitate that support.

13. Some of the local authorities interviewed by Save the Children were critical of the DfE for failing to provide adequate guidance and for not taking a more assertive role in relation to the Home Office. This had led to the Home Office taking the major role in a number of UASCs issues with the end result that immigration status was taking precedence above the best interests and welfare of the child. The report by Save the Children therefore concluded that, in practice, in a significant number of local authorities, the Hillingdon Judgment and LAC circular 13 had not had a sufficient impact on the treatment of UASCs. Indeed, it would appear that section 17 support is still the main source of support for many UASCs, whilst the quality of service provided to these young people is often hampered by the limited resources available from central government to hard pressed local authorities.

(Paragraphs 4–13 from The Treatment of Children under the UK Asylum system—Children First and Foremost? L M Clements, BA, LL.M.Lecturer in Law, the University of Hull. l.m.clements@hull.ac.uk

Copyright © L M Clements 2006. First published in Web Journal of Current Legal Issues.)

See also:

Coram Children’s Legal Centre—Seeking Support a guide to the rights and entitlements of separated refugee and asylum seeking children.
http://www.childrenslegalcentre.com/userfiles/file/Seeking%20Support%20Complete.pdf

Levelling the Playing Field—Finch and Brownlees
http://www.unicef.org.uk/Documents/Publications/levelling-playing-field.pdf—NB page 9 re private fostering and trafficked children

Proposal

14. That all trafficked and unaccompanied asylum seeking children be made subject to care orders as opposed to being accommodated under section .20 1989 Children Act.

15. The reason for proposing this change in practice is entirely based on achieving outcomes which are in the best interests of the child, and meeting their safeguarding needs. These reasons are:

16. Trafficked children are more likely to go missing from care as they return to their traffickers through direct or indirect coercion. Discharging a missing child accommodated under section 20 is far easier than a child who is subject to a care order. It is envisaged that more careful placement decisions will be made if the child is under a care order, and more proactive efforts made to ensure that they do not go missing and, if they do, that they are proactively searched for.

17. Trafficked children and UASC’s are uniquely vulnerable and this vulnerability is increased by them having no one in the UK who has taken full parental responsibility for them. Use of section 20 was not envisaged for children who have no contactable parent or guardian to give consent for their accommodation. Though guidance suggests that section 20 not be used if a needs assessment pointed to alternate options being more appropriate, there is little evidence that these children are being made subject to care orders.

18. Services provided for these children will be given higher priority within local authorities if the local authority has direct parental responsibility for them.

Numbers

19. At present only just under 600 children have been referred to the National Referral Mechanism (NRM) This is the Home Office body which determines, for immigration purposes, whether a child has been trafficked. The overwhelming majority of local authority social workers have never heard of the NRM so referral numbers are very low. International child protection issues such as trafficking do not appear on any pre-or post qualifying social work curricular.

20. The 2010 annual UAS child new arrivals were around 1,500. The lowest for five years and a drop of 50% on the last four years.

21. The annual figure may also include a significant number of children who are not only asylum seeker children but trafficked. The most recent data provided by CEOP within their Child Trafficking Update (October 2011) states that 202 children have been identified as trafficked into and within the UK over the period 1 January 2011 to 15 September 2011.

22. Estimates on the numbers of unidentified trafficking victims vary and will include accompanied and unaccompanied children and young people. There could be up to an additional 3,000 trafficked children and young people in informal care arrangements in the UK.

23. Therefore the cohort potentially affected by this is potentially 1700 children and young people currently within the system and potentially up to 3000 trafficked children and young people coming to the attention of child protective services.

Potential Barriers

24. The barriers that may be preventing this course of action being followed are:

Cost of care proceedings (Norgrave review has addressed this if accepted).

Length of time for care proceedings to be concluded.

Capacity of Cafcass to provide guardians for increased numbers of care proceedings.

There are also practice and financial issues that may lead Local Authorities to resist issuing proceedings in respect of this cohort.

Concerns about rising leaving care service costs.

Concerns around rising placement costs if placement must be maintained for missing children.

Conclusion

25. The best interests of the child are clearly served most effectively by local authorities using the legal powers available to them to take full responsibility for UASC’s and trafficked children.

26. These children have no adult in the UK with parental responsibility, they have often experienced trauma both travelling to and once in the UK.

27. The reasons why these cohorts are not afforded the protection provided by section 31 orders seems partly custom and practice based, partly based on case law (Hillingdon judgement) and partly finance based (cost of care proceedings and looked after children costs).

28. CFAB would ask the committee to consider recommending that all unaccompanied and trafficked children are made subject to section 31 Care Orders

April 2012

Prepared 16th November 2012