Children's Rights - Human Rights Joint Committee Contents

Memorandum submitted by the Refugee Children's Consortium


  The Refugee Children's Consortium works collaboratively to ensure that the rights and needs of refugee children[449] are promoted, respected and met in accordance with the relevant domestic, regional and international standards, in particular:

    — The United Nations Convention on the Rights of the Child; — The European Convention on Human Rights (adopted in 1998);

    — The Children Act 1989 & Children (Scotland) Act 1995; and

    — The United Nations 1951 Convention relating to the Status of Refugees.

  Our response is concerned with refugee and asylum seeking children, although it has implications for other groups of children such as those who have been trafficked.


  There have been two positive developments in relation to the treatment of asylum seeking children:

    — the removal of the UK's immigration reservation to the Convention on the Rights of the Child; and

    — the introduction of c21 of the UK Borders Act 2007 and a subsequent commitment to introduce a duty equivalent to section 11 of the Children Act 2004 in the Borders, Citizenship and Immigration Bill currently before Parliament.

  However despite this progress asylum seeking and refugee children still face substantial inequality of treatment. These are now the only children who do not have any formal link with the Department for Children, Schools and Families.[450] The result is:

    — a substantial loss of expertise in policy development;

    — a growing gap between treatment of children generally and the treatment of asylum seeking children; and

    — the primacy of immigration control over children's best interests.

  While the welfare of children rests with a department that has no targets in relation to the treatment of children, and objectives that often run counter to children's best interests, it is difficult to see how the standard of treatment set out in Article 3 of the CRC (primacy of a child's welfare) will ever be achieved.

  We believe the lack of statistics relating to refugee children is a serious omission. The most pressing example is that there are no published statistics to show how many children are detained with their families, where or for how long and information is not recorded about age disputed children in detention. For example Ann Owers reports:

    "Other centres, including Yarl's Wood, had no accurate record of length of detention: indeed, we were initially told that some children had spent 275 days in detention, only to be informed later that this was a recording error and the figure should have been 14 and 17 days."[451]

  The UKBA cannot be confident they are keeping children safe in accordance with c21 of the UK Borders Act 2007 without this information. We are also concerned about the reliance on management information which is not considered robust enough to publish but is routinely used as a basis for policy development.


  We strongly welcome the Government's decision to withdraw the reservation to the Convention on the Rights of the Child but we were alarmed to learn that according to Phil Woolas "no additional changes to legislation, guidance or practice are currently envisaged."[452] The remainder of this response sets out the key areas in which we believe the Government falls short of international and national standards for the treatment of children.


  Children in families continue to be detained for significant lengths of time with no judicial oversight, contrary to both Article 37 of the CRC and the Government's own policy. We agree with Ann Owers that:

    "The detention of children, sometimes for lengthy periods and too often without effective monitoring of the length of detention, remains a major concern, and is ripe for review, as the UK removes its immigration reservation to the UN Convention on the Rights of the Child."[453]

      We are aware that pregnant women and new mothers still do not always have access to adequate nutrition in contravention of Article 24 of the CRC.

      We increasingly come into contact with families where the UKBA has avoided detaining the child by separating the family and detaining the parent(s). This has been put forward as their preferred approach.[454] This is clearly not in accordance with Article 9 of the CRC, it is extremely damaging to the family and in some cases may seriously expose to the child to harm. We are unconvinced by the Government's position that this practice is consistent with Article 8 of the ECHR.

      We remain extremely concerned about the fact that there are age disputed young people in detention. The detention of children is directly counter to Article 37, yet RCC members routinely uncover instances of children detained with adults. Of 165 age dispute cases dealt with at Oakington by the Refugee Council in 2005, 89 (53.9%) turned out to be children. In another period over 72% were determined to be children. We urge the Committee to investigate why age disputed young people are still detained, why these cases are not recorded (either upon entry or if they come to light while a young person is being held) and why there is no adequate or transparent process for dealing with an allegation that a child is held in detention as an adult.


      We welcome the Code of Practice to keep children safe from harm issued under c21 of the UK Borders Act 2007 although it is too soon to assess its impact. To a large extent this will depend on the efforts made by the UK Border Agency to roll it out, particularly to private contractors such as escort services and private accommodation providers about whom we have very serious concerns. For example, the Medical Foundation for the Care of Victims of Torture recently highlighted serious cases of families in inadequate, unsafe accommodation.[455] We are also keen to see a well developed policing mechanism to ensure the Code is adhered to. We would welcome a commitment that all staff including contractors will be trained in how to use the Code, a deadline by which this will be rolled out and more information about how the Code will be policed.


      We strongly support the Government's commitment to ending child poverty. However asylum seeking children are not counted for the purposes of the child poverty measure and as a result they have been entirely excluded from efforts to raise children's standard of living. In fact, the direction of travel has been in precisely the opposite direction for this group of children. We remain strongly opposed to section 9 of the Asylum & Immigration (Treatment of Claimants, etc) Act 2004 and urge the Committee to press Government to remove this from the statute books. This provision can be achieved without the need for further legislation under section 44 of the Immigration, Asylum and Nationality Act 2006. RCC members are supporting increasing numbers of destitute children with families, age disputed young people and unaccompanied minors who become 18.[456]

    The Government is currently considering how to reform the support regime for all asylum applicants including families. We are alarmed by suggestions that a new support regime may aim to remove support from unaccompanied children at their most vulnerable time at 18, and may enable Government to remove support from families at any stage in the process if they are deemed to be non-compliant. We maintain that child destitution is inconsistent with Article 8 of the ECHR and is neither necessary, proportionate or humane. Further, the Government's position that child destitution is necessary because of the actions of parents is in clear breach of Article 2.1 of the CRC—that children are protected against punishment or discrimination on the basis of their parent's actions.


      We remain opposed to the use of x-rays in determining age and we would like to draw the Committee's attention to the opinion of Nick Blake QC and Charlotte Kilroy, relating specifically to the use of x-rays, that: "No individual, and in particular no child, can lawfully be `subjected' to a medical examination. This would be an assault."[457]

      Obtaining informed consent from a child is a highly specialist skill, and more so when the question is around something so fundamental to identity as age. We endorse the independent regional age assessment centre model put forward by the Immigration Law Practitioners Report, When is A Child Not a Child.[458] The RCC was represented on the Government's age assessment working group which met for the last time in August. We have not had any further information since this time and we would welcome clarity about the Government's plans.


      We have seen no progress in relation to our concerns about education and in particular the difficulties children face accessing and participating fully in education because of the demands of the immigration and asylum support processes.

    Article 22 of the 1951 Convention sets out that refugees should have the same access to elementary education and remission of fees, but it is in practice difficult for them to achieve this. For example we are aware from our practice that some young people who arrive in the UK at the ages of 14 or 15 are placed into pupil referral units or sixth form colleges rather than mainstream school.[459] Restrictions on financial support based on immigration status and/or length of residence prevent many children from having any opportunity to achieve their Article 29 rights under the CRC.


      We remain very concerned about the Government's intention to forcibly return unaccompanied asylum seeking children. We have been told that the UKBA is now working with the Foreign and Commonwealth Office and the Department for International Development to achieve this. We believe returns of children should only ever take place where it is proven to be in a child's best interests in accordance with Article 3 of the CRC. We understand that the DCSF is not involved in this which sends out a worrying signal. We cannot see how the Government intends to realise children's rights under Article 3 without the involvement of the DCSF.

    February 2009

    449   The term "refugee children" is used here to mean: children seeking asylum, those with refugee status or leave to remain, those within families or in the U.K. without their usual caregiver. The focus will be on those children under 18, but may include elder siblings of the above and those who, although over 18 are still entitled to services under The Children (Leaving Care) Act.

450   The only link that we are aware of is through the looked after children status of some children seeking asylum, but the policy framework for unaccompanied asylum seeking children and other looked after children varies widely. Back

451   HM Chief Inspector of Prisons for England and Wales Annual Report 2007-08. Back

452   Hansard, 24 November 2008. Back

453   HM Chief Inpsector of Prisons for England and Wales 2007-08. Back

454   Border and Immigration Agency Code of Practice for Keeping Children Safe from Harm Consultation-Pro Forma for Responses, 25 April 2008. Back

455   BBC News, UK "failing" victims of torture, 10 December 2008. Back

456   See for example, Living on the Edge of Despair, The Children's Society 2008. Back

457   7 November 2007. Back

458   Crawley, H. May 2007. Back

459   The Children's Society. Back

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