Human Rights of unaccompanied migrant children and young people in the UK - Human Rights Joint Committee Contents


3  Upholding the rights of unaccompanied migrant children

SAFEGUARDING RESPONSIBILITIES WITHIN GOVERNMENT

34. For children's best interests to be properly considered, the concept must be at the heart of the Government's work when formulating policy and overseeing its implementation. Under the UNCRC and domestic legislation, the United Kingdom is obliged to identify, protect and assist unaccompanied migrant children This responsibility spans a number of departments. The Department for Education is responsible for safeguarding, education and upholding UNCRC rights for all children regardless of their status. This means that it is responsible for overseeing many of the support structures that children would enter into, including foster care, schools and social care.

35. By virtue of their status, unaccompanied migrant children also interact with the asylum and immigration system, the administration of which is the responsibility of the Home Office. The UK Border Agency administered the system as an executive agency until April 2013, when its agency status was revoked and immigration services, visa services and immigration law enforcement were brought within the Home Office.[28]

36. As children navigate the asylum and immigration process, or wish to challenge support entitlements, specialist legal representation may be required, engaging the work of the Ministry of Justice. Where a child has been trafficked, they may also come into contact with the UK Human Trafficking Centre, a multi-agency body led by the Serious Organised Crime Agency. Finally, unaccompanied children who arrive in the UK and require support are looked after by local authorities, by virtue of duties to care for children in their area.

37. Given the range and variety of actors involved, it is essential that work is coherent and connected. The Government acknowledged in its evidence that joint working was crucial to safeguarding the welfare of children.[29] However, witnesses expressed concern about a lack of joined-up working and called for more consultation and cooperation between departments.[30] Particular issues were noted with respect to higher education access (see para 218),[31] legal aid funding (see para 222)[32] and the protection of trafficked children (see para 125).[33]

38. Some said that immigration authorities were overly dominant in decision-making.[34] Kent County Council thought that the "tension between immigration and childcare legislation has led to a disjointed approach", with a "perceived lack of clarity in relation to who is driving practice and decision-making".[35] A number of witnesses therefore wanted to see more clarity of approach. UNICEF UK noted that "in reality there is no strategy or action plan ensuring a joined-up approach".[36] The NSPCC suggested that there should be firmer guidance provided to ensure consistency and minimise arbitrary variations in local practices.[37] The Welsh Refugee Council wanted to see a greater commitment to ensuring that devolved competencies, such as education and support services, were properly respected.[38]

39. To facilitate greater coherence and a greater focus on the best interests of children, many witnesses called for the Department for Education to take on responsibility as the "lead department" for unaccompanied migrant children.[39] The Children's Society thought that to do so would "facilitate the development of more effective, child-centred policy".[40] Andrew Ireland, Corporate Director for Families and Social Care at Kent County Council, and Janet Patrick, Strategic Adviser for Unaccompanied Minors at Croydon Council, both agreed that a single lead department would allow for greater clarity, co-ordination and standardisation of care.[41] Barnardo's said that such a shift would make clear the primacy of safeguarding children over immigration concerns.[42] The Law Centre (Northern Ireland) supported the idea of a lead department, but thought that the responsibility should be devolved to the relevant safeguarding departments in devolved regions.[43]

40. Others felt that the situation had to be more flexible given the varied issues affecting unaccompanied migrant children. John Simmonds, Director of Policy, Research and Development at the British Association for Adoption and Fostering (BAAF), thought that it was legitimate for different departments to lead in different areas, but urged them to work closely together.[44] The Immigration Law Practitioners' Association (ILPA) wanted to ensure that the lead department for any issue mirrored the department responsible for children more generally.[45]

41. The Government maintained that the present arrangements were sufficient. It said that it would be "unrealistic" to bring oversight of the UNCRC, child welfare and immigration policy under one department. The Minister said that "because of the issues and their complexity, the idea that you can brigade all the responsibilities in one government department is not practical".[46] The Government said instead that "the most important factor is the effectiveness of joint working". It insisted that there was there was already close working between immigration authorities, Local Safeguarding Children Boards, local authorities, devolved administrations and civil society, and that the focus should be on outcomes rather than process.[47]

42. However responsibility is arranged, policymakers must ensure that the focus is on the welfare of children, rather than just on immigration concerns. The evidence that we received raised serious doubts as to how effectively the present framework ensures that focus. While we see the merits in principle of establishing a clear "lead department", we agree with the Government that to do so may cause difficulties in practice. It is right that the Home Office, for instance, takes responsibility for the integrity of the asylum and immigration policy as a whole, and adding oversight from another department may complicate more than it clarifies.

43. At the same time, the present allocation of responsibility is not always defensible. There should be a clear assessment to determine where safeguarding responsibilities should lie. Such an assessment is especially important in the light of the reform of the UK's immigration authorities, during which it was not made clear to which directorate responsibility for unaccompanied migrant children was entrusted. Although the Government insisted that the changes to the immigration authorities would not affect the care provided to unaccompanied migrant children,[48] we remain concerned at their lack of prominence in the debate around reform. It is therefore proper to examine where responsibilities are most appropriately placed to ensure that the children's best interests are properly considered.

44. We recommend that the Government evaluate where responsibility for areas of policy concerning unaccompanied migrant children should best lie, to establish whether some policy areas would be more appropriately overseen by those responsible for safeguarding the welfare of unaccompanied migrant children. The Government should then transfer responsibility and funding accordingly.

45. One area where it would be appropriate to transfer responsibility would be in the administration of grant funding to local authorities for the care of unaccompanied migrant children (see also paragraph 211). This should be wholly the responsibility of the Department of Education, to demonstrate that such funding is given in order to protect the wellbeing of children. A transfer of responsibilities would also be suitable should the Government follow our recommendation regarding the future role of the UK Human Trafficking Centre in the National Referral Mechanism (see paragraph 141).

46. Regardless of how policy responsibilities are organised, effective joint working is crucial. We are struck by the lack of a clear strategy to establish joint working protocols and coherent thinking. We were impressed in this regard by two pieces of work: the Scottish Government's Do the Right Thing action plan, which outlines clear service protocols, including work with voluntary bodies;[49] and the development of service standards for separated children by the Department of Health, Social Services and Public Safety in Northern Ireland.[50] We support similar efforts here, building on the recent revised Working Together to Safeguard Children statutory guidance, which is in the process of being revised.[51] A strategy which puts unaccompanied migrant children's welfare first, and which is coordinated accordingly, could realise the benefits suggested by the establishment of a lead department and encourage a stronger culture of joint working.

47. The Government should develop a strategy document for dealing with unaccompanied migrant children which outlines clear lines of responsibility and detailed service standards in relation to the protection, health and development of children, as well as long-term care planning in their best interests. The Department for Education should be tasked with co-ordinating the development and continuing oversight of the strategy, and appointing a national lead for its implementation.

IMPROVING THE CONSIDERATION OF CHILDREN'S RIGHTS

48. Any structure that puts children's best interests at its heart must give proper consideration to the United Kingdom's international obligations. In the context of unaccompanied migrant children, this is particularly important in relation to the UNCRC.

DECISION-MAKING AND PRACTICE

49. There were widespread concerns about the extent to which the UNCRC was being effectively incorporated into decision-making and practice relating to unaccompanied migrant children. UNICEF noted that, although Cabinet Office guidelines on making legislation stressed the importance of considering the UNCRC,[52] more needed to be done to improve how effective children's rights were being considered.[53] The Children's Society, while welcoming the intention to give proper consideration to the UNCRC, said that it "continues to see unaccompanied children's rights compromised in favour of tighter immigration control and budgetary constraints".[54] A number of witnesses queried the effect of the Section 55 duty on immigration authority practice;[55] the UNHCR noted the "lag" between relevant guidance being updated and its implementation.[56]

50. Some linked these issues to a lack of familiarity with the UNCRC and children's rights among staff dealing with unaccompanied migrant children, in particular with respect to the question of best interests.[57] The UNHCR noted that staff felt that "the guidance and the training they get on assessing best interests does not help them to do it properly, and they are taking instructions from the courts at this stage".[58] UNICEF UK and the Refugee Council both pointed to "huge gaps" in "limited" staff training on child rights.[59] The Office of the Children's Commissioner for England said it was unaware of General Comment No. 6 being considered in any immigration or local authority guidance.[60] It therefore called for more training and awareness-raising about children's rights among those dealing with unaccompanied migrant children, a call echoed elsewhere.[61] The Children's Commissioner for Wales highlighted in particular the need for more training in local authorities, especially where staff dealt with unaccompanied children on a less regular basis.[62]

51. In response to criticisms about training and awareness, the Government pointed out that 13,000 members of immigration authority staff had been trained to date on "safeguarding and Section 55 issues", with a further 5,000 taking up the option of further training modules where dealing with unaccompanied migrant children more regularly. It also highlighted the network of 40 safeguarding co-ordinators based within the immigration authorities that aimed to raise awareness of best practice. These initiatives, it argued, had led to better engagement by staff, more scrutiny of welfare arrangements, and a stronger emphasis on joint working. Local authorities also insisted that there were strong training networks for local authority staff, even in areas where there were fewer unaccompanied migrant children, citing in particular the London Asylum Consortium and its training co-ordination work.[63]

52. It is imperative that the UNCRC operates as a touchstone for all those dealing with unaccompanied migrant children, and the Government has made clear strides to ensure that this is the case. However, we do not consider that due consideration of the Convention is sufficiently embedded among those developing policy and practice in relation to unaccompanied migrant children. The devolved administrations have shown a far greater commitment to embedding the Convention in this way, and we urge the Government to follow suit.

53. There should be a concerted effort made to train those in the safeguarding workforce about children's rights. We see particular value in developing a model with the UNCRC at its core, which could be tailored to the safeguarding environment in which it would be used. This should be delivered by independent providers. The training would ideally be accompanied by guidance from the Children's Commissioner for England to promote understanding of the UNCRC, and its application to unaccompanied migrant children, among practitioners. This would be timely in the light of proposed reforms to the Office of the Children's Commissioner for England in the Children and Families Bill which would put the UNCRC at the heart of the Commissioner's functions.

54. The effectiveness of efforts to safeguard unaccompanied children's rights should be overseen more comprehensively. Within the immigration authority there is a "Children's Champion" for this purpose, though the Office of the Children's Commissioner for England noted that the post has not been evaluated publicly.[64] We also note with regret that the Minister, without due explanation, did not allow the Children's Champion to appear before this Committee. As a result, the effectiveness of the post remains unclear. It should serve as a check and balance within the immigration authority to ensure that all relevant obligations are met.

55. We also consider that there should be more independent oversight of safeguarding across the Government as a whole. We see a clear role for the Office of the Children's Commissioner for England in this respect, and welcome the provisions in the Children and Families Bill to that effect.[65]

56. We recommend that the Government work with child welfare and safeguarding experts to develop a specific training programme to improve awareness and understanding of the UNCRC and its application to unaccompanied migrant children, particularly with respect to properly considering children's best interests. Such a programme, delivered by external providers, should be rolled out first to staff in frontline immigration and asylum roles, and to those in local authorities that deal regularly with unaccompanied migrant children. The programme should then be rolled out more widely as resources allow.

57. We welcome the Government's commitment to give greater consideration to the UNCRC in legislation and policymaking. We welcome also the provision in the Children and Families Bill which would expressly empower the Office of the Children's Commissioner for England to monitor the implementation in England of the UNCRC,[66] and to publish a report on that monitoring.[67] We expect the Commissioner to be resourced accordingly.

58. We recommend that the Government define the role of the Children's Champion in the immigration authority, confirming that it is invested with a proactive duty of care to ensure that the agency meets its international and domestic obligations, and seeks expert input in exercising that duty.

59. We also recommend that the UNCRC be used as a metric in departmental performance monitoring processes within Government for departments with policy responsibilities that relate to the safeguarding of unaccompanied migrant children.

CHILDREN'S RIGHTS IN DOMESTIC LAW

60. One way to give greater consideration to the UNCRC would be to bind it more strongly into domestic law; at the furthest end of the spectrum, this could involve incorporating its provisions directly into domestic law. Indeed, the NSPCC noted that the UK had been criticised by the UN Committee on the Rights of the Child for not pursuing full incorporation, and called for this to be rectified.[68] Incorporation of the UNCRC into domestic law was also one of the recommendations which came out of the UK's recent Universal Periodic Review (UPR) by the UN Human Rights Council.[69]

61. However, the Children's Commissioner for England highlighted that there was a lack of enthusiasm for full incorporation in England. She nevertheless thought that it was important for the Convention to be "one of the lenses through which [the Government] judges all legislation".[70] Confirming the lack of appetite for incorporation, the Minister thought that the UNCRC itself was not "worded precisely enough to put directly into law"; one could not, he said, "just do a straight lift and put it into UK legislation".[71] He insisted that the Section 55 duty "delivers on our responsibilities under the UN Convention",[72] in an immigration context, and that the Government was "delivering on the principles and articles of the Convention" more generally.[73]

62. The devolved administrations have sought to give stronger recognition to the UNCRC, though none has sought full incorporation. The Children's Commissioner for Wales noted that the Rights of Children and Young Persons (Wales) Measure placed a duty on Welsh ministers to have "due regard" to the UNCRC when making decisions.[74] Patricia Lewsley-Mooney, Northern Ireland Commissioner for Children and Young People, said that there were plans to bring forward a piece of children’s rights legislation in Northern Ireland that she hoped would be stronger than the legislation in place in Scotland and Wales.[75] Tam Baillie, Scotland's Commissioner for Children and Young People, noted that the Scottish government had stepped back from an initial commitment to incorporate the Convention fully—though he saw value in doing so—but was nevertheless intent on bringing forward proposals to give more robust consideration to the rights of children.[76]

63. As we have stated, the UNCRC must be a central consideration in those processes that deal with unaccompanied migrant children. In principle, incorporating the UNCRC into domestic law could serve to bring children's rights into the mainstream in the same way as the Human Rights Act 1998 did for the European Convention on Human Rights. We recognise, however, the Government's concern as to the practical obstacles that lie in the way of full incorporation.

64. We note that the Government has recently taken a number of significant steps which have the potential to increase the practical significance of the UNCRC considerably, including its commitment to pay due regard to the Convention when formulating law and policy, and reconfiguring the mandate of the Office of the Children's Commissioner for England to put the UNCRC at the heart of its role

65. We do not express a view as to the merits of incorporating the UNCRC into domestic law at this stage. We urge the Government to keep under review the different approaches taken in recognising the UNCRC in the devolved jurisdictions, in order to evaluate the case for full incorporation.



28   Oral statement by the Home Secretary to the House of Commons on the future of UK Border Agency, 26 March 2013, HC Deb 26 March 2013-columns 1500-1510 Back

29   HM Government Back

30   Refugee Children's Consortium, Rosemary Demin, Children and Families Across Boarders (CFAB), Children's Society, Office of the Children's Commissioner for England, Scottish Refugee Council, COMPAS, ILPA, NSPCC, Refugee Council, Dr Christine Mounge. Q9 (UNHCR), Q51 (BAAF, Praxis), Q38 (Northern Ireland Commissioner for Children and Young People) Back

31   ILPA, Children's Society, Refugee Children's Consortium, Refugee Council Back

32   Q5 Back

33   ECPAT Back

34   Office of the Children's Commissioner for England, Welsh Refugee Council, ILPA Back

35   Kent County Council Back

36   Q2 Back

37   NSPCC Back

38   Welsh Refugee Council. See also Scottish Refugee Council, British Association for Social Workers (BASW), Refugee Children's Consortium Back

39   Rosemary Demin, Alan Morice, CFAB, Children's Society, Refugee Children's Consortium, ECPAT, Royal College of Paediatrics and Child Health (RCPCH), COMPAS, NSPCC, Kent County Council, Refugee Council, Office of the Children's Commissioner for England, Coram Children's Legal Centre. Q2 (Children's Society, Refugee Council), Q51 (Jim Wade, Dost and Praxis), Q65 (Association of Directors of Children's Services).  Back

40   Children's Society. See also Refugee Children's Consortium Back

41   Q66. See also Q66 (ADCS) Back

42   Barnardo's. See also Kent County Council, ECPAT, Children's Society, Refugee Children's Consortium Back

43   Law Centre (Northern Ireland). See also Scottish Refugee Council Back

44   Q51. See also Dr Christine Mounge, Salusburty World Back

45   ILPA Back

46   Q83 Back

47   HM Government, See also Q83 (Mark Harper MP) Back

48   Letter from Mark Harper MP, Minister for Immigration, to the Chair, 15 April 2013: http://www.parliament.uk/documents/joint-committees/human-rights/M_Harper_letter_150413.pdf Back

49   Scottish Govenrment. Do the Right Thing-a progress report on our response to the 2008 concluding observations from the UN Committee on the Rights of the Child 2012: See http://www.scotland.gov.uk/Publications/2012/05/3593. Back

50   Law Centre (Northern Ireland) Back

51   HM Government Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children, March 2013: http://media.education.gov.uk/assets/files/pdf/w/working%20together.pdf Back

52   Cabinet Office, Guide to Making Legislation, April 2013, para 11.30: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/185961/Guide_to_Making_Legislation_April_2013_1.2.pdf Back

53   Q7 Back

54   The Children's Society. See also Barnardo's, Coram Children's Legal Centre, ILPA Back

55   Office of the Children's Commissioner for England, NSPCC Back

56   UNHCR, COMPAS Back

57   NSPCC, COMPAS, UNHCR, ILPA, Barnardo's, Office of the Children's Commissioner for England, Coram Children's Legal Centre, Refugee Action Back

58   Q9 Back

59   Q7. See also Refugee Action Back

60   Office of the Children's Commissioner for England. General Comment No. 6 provides States with guidance on the protection, care and proper treatment of unaccompanied children Back

61   Office of the Children's Commissioner for England. See also ILPA, CFAB, Barnardo's, Dr Christine Mounge, No Recourse to Public Funds Network, NSPCC, Coram Children's Legal Centre, RCPCH, Klevis Kola Foundation, Royal Holloway and Tavistock Centre, Unseen, BASW, Refugee Action, UK Children's Commissioner, Q7 (UNICEF), Q35 (Children's Commissioner for England) Back

62   Q38 Back

63   Q71 Back

64   Office of the Children's Commissioner for England Back

65   See also Joint Committee on Human Rights, 6th Report (2012-13): Reform of the Office of the Children's Commissioner: draft legislation (HL Paper 83/HC 811) Back

66   Proposed new s. 2(3)(i) Children Act 2004, inserted by clause 77 of the Children and Families Bill. Back

67   Proposed new s. 2(3)(j) Children Act 2004. Back

68   NSPCC Back

69   UN Human Rights Council, Report of the Working Group on the Universal Periodic Review, United Kingdom of Great Britain and Northern Ireland, July 2012, Recommendation 110.9: http://www.ohchr.org/EN/HRBodies/UPR/Pages/GBSession13.aspx Back

70   Q28 Back

71   Q89 Back

72   Q84 Back

73   Q89 Back

74   Q28 Back

75   Q28 Back

76   Ibid Back


 
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Prepared 12 June 2013