LEVEL AND QUALITY OF SUPPORT
184. Although the Home Office is responsible for
deciding whether a separated child should be granted asylum in
the UK, it has no power to provide accommodation or financial
support whilst the asylum application is being processed.[255]
The duty to provide support to separated asylum seeking children
falls to local authority social service departments, who are under
a statutory duty to safeguard and promote the welfare of any child
in need, irrespective of his or her immigration status, under
the Children Act 1989. The Government accepts that the provision
of services for children should be funded centrally and, in 1996,
introduced a grant for separated asylum seeking children. Social
service departments claim each year for the costs of services
provided for this group of children. A proportion of these costs
is then met by the Home Office. The Department of Health (which
was responsible for separated asylum seeking children before this
responsibility was transferred to the Department for Education
and Skills in 2004) issued guidance to local authorities in 2003[256]
stating that where an asylum seeking child has no parent or guardian
in the UK, there is a presumption that the child will be accommodated
under section 20 of the Children Act 1989. Section 20 allows for
a child to be taken into the "looked after" system.
This would normally entail placement with a foster parent or in
residential care for those under 16, although more independent
living arrangements, for example in shared flats or supervised
accommodation, might be found to be appropriate for the older
age group. Once a child is accommodated the local authority has
further ongoing duties to safeguard and promote the child's welfare,
provide an appropriate package of support and conduct "Looked
After Reviews" on a regular basis to ensure that the child's
needs are being met.
185. The presumption that separated asylum seeking
children should be looked after under section 20 of the Children
Act can only be rebutted if the child does not wish to be accommodated
and the local authority believes the child is sufficiently competent
to look after himself or herself. However, we have heard evidence
that separated asylum seeking children are not always provided
with an appropriate care package. A study undertaken by Save the
Children in 2005 found that some local authorities were not able
to allocate all children and young people with a social worker
and that the quality of accommodation and support was not always
adequate. The study suggests that local authorities are not sufficiently
resourced to provide proper and appropriate care for separated
children, particularly those who have outstanding immigration
issues. Recent research has also found that some local authorities
are very reluctant to top up the grants provided by central government
towards the accommodation and support of separated children from
their own resources. [257]
They are therefore reluctant to accommodate them under section
20 and provide them with foster care or supported hostel placements.
Instead they choose to assist them under section 17 of the Children
Act and place them in what amounts to bed and breakfast accommodation,
often with minimal contact or support.
186. In their evidence to us, Save the Children described
the current situation as resulting in a "lottery of care"
which had very negative impacts on the health and welfare of separated
children:
"It really is a lottery in terms of the
services an unaccompanied child get, whether they have a qualified
social worker or an unqualified social worker, whether they have
a named social worker or an unnamed social worker, whether they
have any knowledge of the systems they are going through or whether
they do not and…the quality of legal advice, if they get
any at all, and access to education and access to health. We are
seeing huge deterioration in children's mental health in some
of the projects that we are working in, cases of self-harm and
issues like that." [258]
In his evidence to us, the Children's Commissioner
for England confirmed that a "looked after" service
under section 20 was almost always going to be the most appropriate
care route for a separated asylum seeking child, but raised concerns,
shared by other Commissioners, that some children continued to
be provided with a less comprehensive service under section 17
of the Children Act in order to avoid the costs of providing a
leaving care service:
"The Commissioners are concerned that many
local authorities continue to provide accommodation to unaccompanied
minors under section 17. It is doubtful whether these decisions
are based on the young person's assessed needs but rather on the
desire to avoid incurring leaving care duties." [259]
187. In addition witnesses told us that some local
authorities were routinely "de-accommodating" separated
asylum seeking children in order to reduce the costs of providing
support. "De-accommodation" is a technical term which
means essentially that children are taken out of the "looked
after" system and provided with support under the leaving
care provisions of the Children Act before they turn 18.
These children will be provided with the support package that
is provided to care leavers. They will have access to a personal
adviser rather than a qualified social worker. Their needs as
children will not be assessed or reviewed. The issue of "de-accommodation"
was raised by the Children's Commissioner, who expressed concerns
about the policy and practice of the London Borough of Hillingdon.
Hillingdon has particularly extensive experience of and responsibility
for asylum seeking children, because many enter the UK via Heathrow
airport, which is located within Hillingdon's boundaries. The
Children's Commissioner was concerned that separated asylum seeking
children, who are frequently extremely vulnerable, were effectively
being removed from the looked after system without due regard
to the law, their needs or their welfare, and that their access
to an appropriate level of service was thus prevented or restricted:
"We consider that the Hillingdon policy
of de-accommodating UASC children at 16 is inimical to these children
and fails to adequately safeguard and promote their welfare. We
further take the view that the policy violates the child's right
to family life and private life under Article 8 ECHR and discriminates
against UASC contrary to Article 14 ECHR. In addition, in introducing
such a policy it would appear that the best interests of the child
have not been the paramount consideration."[260]
188. There is some evidence that the problem of "de-accommodation"
arises from the fact that the financial costs, both direct and
indirect, of providing an appropriate accommodation and support
package to separated asylum seeking children under section 20
of the Children Act are only partly met by the Home Office's grant.
The London Borough of Hillingdon told us that it had no formal
or blanket policy to "de-accommodate" separated asylum
seeking children and that its practice was to provide services
on the basis of assessed need.[261]
However, further information produced by the Children's Commissioner,[262]
provided clear evidence that Hillingdon had adopted a de-accommodation
policy. The evidence stated that, contrary to local authority
guidance, there was no expectation that children would remain
"looked after" unless there was an "exceptional
reason" and advised social workers to avoid placing asylum
seeking children in foster care to avoid the "obvious problems"
that would arise. Hillingdon also told us that the Home Office
grant was insufficient to cover its costs:
"At the current time Hillingdon is responsible
for 1137 UASC… As a consequence of the local authorities
support to UASC, this council has faced the following funding
problems (Funding Gap 2004/05 £1.6m, Funding Gap 2005/06
£4.7m, Funding Gap Ongoing £6m). London Borough of Hillingdon
is currently pursuing a Judicial Review of the Government in respect
of retrospective charges to grant funding which has created funding
pressures for this Council. All public bodies are required to
operate within limited resources and London Borough of Hillingdon
is no exception to this, however the pressure on this Council
to fund services to UASC is far greater than that of any other
Local Authority in the Country. Despite this, London Borough of
Hillingdon contends that their practices in regard to support
to UASC are neither discriminatory or unlawful. The Council further
contends that if greater funding was available there is no doubt
that services to children and young people could be improved and
enhanced."
189. The Immigration Minister told us that the proposed
reforms to arrangements for the support of separated asylum seeking
children would not lead to more resources being available to local
authorities:
"Sadly, as the Immigration Minister it is
difficult for me to change the local government settlement so
I do not think there is recourse for me to change funding that
way, nor do I have evidence that the rates we have published in
the field are the wrong rates." [263]
190. We are concerned about the detrimental consequences
of providing inadequate and inappropriate support and accommodation
to separated asylum seeking children. These children, who come
to the UK, often traumatised, from some of the most troubled regions
of the world, are particularly vulnerable. All local authorities
should follow the guidance set out in LAC13 (2003) and provide
separated children with support under section 20 of the Children
Act. Children should not be "de-accommodated" before
they turn 18.
191. We recognise that the difficulties local
authorities face in providing an appropriate package of accommodation
and support to separated asylum seeking children are compounded
by the lack of additional resources available to social service
departments, and by a broader political and policy context which
pushes the needs of separated children down the already long list
of priorities facing local authorities in providing children's
services. Local authorities must be provided with sufficient funds
to deliver an appropriate package of support and care, including
leaving care costs.
192. We have heard evidence that the difficulties
that many separated children face in accessing appropriate care
and support are exacerbated by the fact that these children, including
those who have been granted discretionary leave, are not provided
with a legal guardian or advocate who can ensure that they receive
the services and support to which they are entitled. Although
the Refugee Council's Children's Panel of Advisers is able to
support some children, it does not have a statutory role and its
resources are limited.[264]
One mechanism for ensuring that separated asylum seeking children
are aware of their rights and have access to the support to which
they are entitled is to provide these children with a guardian,
as recommended by the Children's Commissioner.[265]
The guardian would be appointed as soon as a separated child is
identified and the arrangement would continue until the child
reached the age of 18 or permanently left the UK. According to
Save the Children such an arrangement would be able to prevent
the "lottery of care" which currently exists. [266]
193. We are concerned that there is currently
no statutory oversight for ensuring that separated children are
able to access the services and support to which they are entitled,
and for ensuring that the wide range of bodies in contact with
a child act in his or her best interests. This is despite the
requirement of Article 19 of the EU Reception Directive, that
separated children should be provided with a guardian. We recommend
that a formal system of guardianship should be established for
separated children subject to immigration control, including separated
asylum seeking children. The guardian would have a statutory role
and would be appointed by a statutory body to safeguard the best
interests of the child and provide a link between all those providing
services and support. The guardian should be expected to intervene
if public bodies act in contravention of their legal duties towards
a child.
THE GOVERNMENT'S PROPOSALS FOR IMPROVING SUPPORT
TO SEPARATED CHILDREN
194. The Home Office told us that it had been considering
a number of improvements to the way that separated asylum seeking
children are supported. [267]
Its proposals to reform current arrangements for the support of
separated children were published as a consultation paper on 1
March 2007. The UASC Reform Programme is of great significance
in its systematic and wide-ranging scope and in its attempt to
subordinate welfare services provided to unaccompanied children
to the objectives of immigration control. An explicit objective
of the programme is to realign immigration and child care systems
and to ensure that care systems acquire an "immigration focus".
These reform proposals could create major challenges for social
workers providing services to separated children. The following
are among the proposals outlined in the consultation paper:
- creation of reception and dispersal
model for unaccompanied young people;
- closely aligning immigration
and care systems;
- Home Office commissioned Social
work Teams;
- social workers to work more
closely with Immigration Officers;
- "separate and different"
support services for unaccompanied young people;
- "care planning" in
preparation for deportation;
- attempt to drive down costs
and reduce the quality of care;
- restricted educational opportunities
post 16;
- improved systems of surveillance
and supervision;
- possible use of X rays and
dental checks as means of age assessment;
- planned returns of under 18s
and Fast Track deportations of 18 year olds.
195. Many groups working with unaccompanied asylum
seeking children are concerned that these proposals will further
undermine the safety and welfare of one of the most vulnerable
groups in society. For example, the Medical Foundation for the
Care of Victims of Torture[268]
stated that the proposed changes amounted to a cost-saving
exercise that was a betrayal of the Government's undertaking on
child welfare and that the changes, many of which have already
been negotiated or even introduced, would have a major and negative
impact on the care, support and protection arrangements for child
asylum seekers. The Children's Commissioners have described the
Home Office's approach to the needs of separated asylum seeking
children as "unsympathetic, sceptical and insensitive"
and have criticised the focus on enforcement and cost savings:
"Overall these proposals will make it harder
for children to seek protection in the UK, restrict their entitlements
while here, including access to education, and speed up their
removal with little regard for their best interests. The historic
failure of the asylum determination system to properly account
for separated children's protection needs mean that these proposals
present a high risk strategy which jeopardises the Government's
commitment to safeguarding children." [269]
196. We recommend that the Government's proposals
to reform the arrangements for supporting unaccompanied asylum
seeking children should be carefully scrutinised against the benchmark
of the UN Convention on the Rights of the Child to ensure that
this group are not excluded from the care, consideration and protection
to which all children and young people are entitled.
DISPUTES OVER AGE
197. There has been a significant increase in the
number of asylum seekers arriving in the UK who state that they
are under 18 years of age but whose status as children is disputed
by the Home Office and/or a social services department. In 2005
nearly half (45 per cent) of all applications made by those presenting
as unaccompanied asylum seeking children were age disputed and
the applicants treated as adults.[270]
Many of these disputes remain unresolved with implications for
the Home Office, for social services departments, for legal representatives,
for voluntary sector practitioners and, most importantly, for
the unaccompanied children and young people themselves.
198. The Home Office suggests that the key issue
is that of adults pretending to be children in order to access
services and support to which they are not entitled. According
to Jeremy Oppenheim, the Children's Champion for IND, there are
three possible reasons for the increase in age disputed cases:
"The first is that, over time, we have improved,
with agencies who deal with children, our identification of what
we call age disputed cases. Over time it has become something
on which we have worked more closely with other agency partnerships
in identifying. Secondly, there are some improved methods for
revealing age disputed cases than there have been previously and
I think that has been going on over the last three or four years
Lastly, I think there is a greater evidence of exploitation by
people claiming to be one age when they are possibly another.
There are significant incentives for people at the moment to claim
to be younger than they are…"[271]
199. Evidence from voluntary sector organizations
and from the research undertaken by Bhabha and Finch suggests
that the Home Office often disputes the stated age of an applicant
without taking into proper account the potential risks and violation
of rights which arise from wrongly treating as a child as an adult.
According to Bhabha and Finch:
"A very significant number of unaccompanied
or separated children are denied access to a child appropriate
asylum process and to social services accommodation because their
age is disputed…This sometimes occurs because the child travelled
on a passport with an adult's date of birth, even though the case
worker accepts that the passport in question was false. More usually
it occurs because the officer simply thinks the child looks like
an adult."[272]
200. ILPA is currently undertaking research into
the experiences of children whose age is disputed. The research
has found that the IND staff do not always give the "benefit
of the doubt" in practice and that there are inconsistencies
in the process of age assessment currently undertaken by social
service departments. Statistical evidence supports the claim that
the Home Office does not give the "benefit of the doubt"
as its own policy says it should. In 2005 over 60 per cent of
those detained at Oakington who were assessed by the local authority
were found to be children following a formal age assessment.[273]
201. The Children's Commissioner has expressed his
concern about disputes over the age of asylum seeking children
and a lack of appropriate procedures for ensuring that children
are properly and fairly age assessed and are not simply treated
as adults:
"Although Home Office policy is for the immigration
officer to apply the "benefit of the doubt" in favour
of the applicant in borderline cases, the evidence suggests that
in practice this is frequently not adhered to. The result is that
a substantial number of asylum seekers who are in fact unaccompanied
children are excluded from the protection of the domestic care
regime which incorporates the "best interests" principle
guaranteed by the CRC." [274]
The Royal College of Paediatrics and Child Health
(RCPCH) considers that age determination is an inexact science,
and that estimates of a child's physical age from X rays of his
or her dental development are only capable of producing a four
year age range for 95 per cent of the population.[275]
The Royal College of Radiologists has also advised its members
that a request from an immigration officer to have an X ray to
confirm chronological age would be unjustified both on grounds
of accuracy and also because of the risks attached to using ionising
radiation for non-clinical purposes.[276]
According to the RCPH guidelines, the determination of age is
a complex process where various types of physical, social and
cultural factors all play their part, although none provide a
wholly exact or reliable indication of age, especially for older
children. For this reason, assessments of age should only be made
in the context of an integrated examination of the child and no
single measurement or type of assessment should be relied on.[277]
However, the Home Office proposes to introduce dental X-rays in
an attempt to assess the age of those presenting as children.
According to the Immigration Minister this is to prevent the risks
associated with having adults in systems designed for children:
"If it is true that a dental X-ray is able to
establish with a more precise range an individual's age than,
for example, any other form of X-ray or, indeed, any other form
of determination, then I think we have to look very hard at that
evidence because we cannot have adults in the children's system.
To have adults in the children's system poses a serious threat
to our obligation to protect children effectively."
[278]
202. We have also heard concerns about the continuing
detention of children whose stated age is disputed. The Government
has recently conceded that the approach to fast-track detention
in disputed age cases, prior to a change in policy in November
2005, did not strike the right balance between, on the one hand,
the interests of firm and fair immigration control and, on the
other hand, the importance of avoiding the detention of unaccompanied
children, save in exceptional cases and limited circumstances.[279]
However there is evidence of a gap between the new policy which
was introduced to redress the balance and the reality of current
practice. Voluntary sector practitioners maintain that age disputed
children continue to be detained, especially at the end of the
process when the Home Office is seeking to remove them from the
UK. The Children's Commissioner states that:
"Home Office policy is not to detain unaccompanied
children. This policy was not applied to age disputed cases until
a policy change, effective from February 2006, reduced the discretion
of immigration officers to authorise detention in the fast track
asylum processing regimes operating at Oakington, Harmondsworth
and Yarl's Wood removal centres.
Despite the welcome change in policy, the Children's
Commissioners have seen evidence that some children are still
being processed in the detained fast track." [280]
203. We are concerned by the lack of recognition
given by the Government to the risks of having children whose
age is disputed in the adult system. We are not convinced that
the Home Office is ensuring that the "benefit of the doubt"
is given to separated asylum seeking children or that local authorities
receive appropriate training and support to enable them to undertake
an integrated assessment process. We are also concerned that age
disputed children continue to be detained as adults despite Government
policy which says that this should not happen; and legal actions,
in which the Home Office has conceded that this approach is not
appropriate.
204. It is clearly a priority that the gap between
current policy in relation to age disputed cases and the realities
of current practice are closed. Children must be given the benefit
of the doubt because the risks associated with treating children
as adults are much greater than those of treating adults as children.
We recommend that where an asylum seeker's age is disputed even
where the benefit of the doubt has been given, he or she should
be provided with accommodation by the appropriate social service
department in order for an integrated age assessment to be undertaken,
considering all relevant factors. X-rays and other medical assessment
methods should not be relied upon, given the margin of error.
The process for dealing with age disputes should be reviewed,
particularly in light of the evidence and recommendations arising
from the research currently being undertaken by ILPA and due to
be published shortly, with a view to ensuring that no age disputed
asylum seeker is detained or removed unless and until an integrated
age assessment has been undertaken.
244 We have chosen to use the term 'separated children'
in this chapter because this is the term used in most countries
to describe those children who are outside their country of origin
and separated from their parents or legal or customary primary
carer. In the UK, separated children who have applied for asylum
are commonly referred to as unaccompanied asylum seeking children
(UASC). This term does not include those children who are accompanied
by an adult who is not their parent, guardian or primary carer. Back
245
Twenty-sixth Report of Session 2005-06, op. cit., para.
180. Back
246
Appendix 56. Back
247
Appendix 56. Back
248
ibid. Back
249
Appendix 74. Back
250
Seventeenth Report of Session 2004-05, Review of International
Human Rights Instruments, HL Paper 99/HC 264. Back
251
Q500. Back
252
Q500. Back
253
Asylum Statistics United Kingdom 2005, Home Office. Back
254
Bhabha and Finch (2006) Seeking Asylum Alone: Unaccompanied
and separated children and refugee protection in the UK Massachusetts:
Harvard University Back
255
Appendix 69. Back
256
Local Authority Circular (LAC) 13 (2003) Guidance on Accommodating
Children in Need and their Families. Back
257
Bhabha and Finch (2006) op. cit. Back
258
Q122. Back
259
Appendix 56. Back
260
Appendix 80. Back
261
Appendix 84. Back
262
Appendix 80. Back
263
Q506. Back
264
Q122. Back
265
Appendix 56. Back
266
Q122. Back
267
Appendix 69. Back
268
Press release available at http://www.torturecare.org.uk/news/latest_news/912. Back
269
Press release available at https://www.childrenscommissioner.org/adult/news/news.cfm?id=1964&newsid=75. Back
270
Asylum Statistics UK 2005, Home Office, 2006. Back
271
Q511. Back
272
Bhabha and Finch (2006) op. cit. p.55. Back
273
Appendix 56. Back
274
ibid. Back
275
RCPCH (1999) The Health of Refugee Children: Guidelines for
Paediatricians, para. 5.6. Back
276
Royal College of Paediatrics and Child Health (1999), The Health
of Refugee Children: Guidelines for Paediatricians Back
277
Bhabha and Finch, op. cit. (2006). Back
278
Q514. Back
279
http://news.bbc.co.uk/1/hi/uk_politics/6302919.stm. Back
280
Appendix 56. Back
