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


5  Supporting unaccompanied migrant children

GUARDIANSHIP

165. The asylum and immigration process is complex, and can be difficult for the children involved to understand.[234] One idea which has been gathering momentum over recent years is that of establishing a system of guardianship to support unaccompanied migrant children, and to take better account of the roles and responsibilities of the wide range of professionals with whom they come into contact.

166. The UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6.[235] It says a guardian should be present in "all planning and decision-making processes", to provide "the continuum of care required by the child". The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child's State Report in 2008, which called for an independent system to ensure that a child's best interests was considered throughout the decision-making process.[236] The UNHCR insisted that a guardian would help "best interests remain a primary consideration throughout the procedure".[237]

167. Guardianship is a variable concept. It can be established on a statutory basis, as sought by the UN bodies, where the guardian takes on a legal role with respect to the child. Statutory systems in place in a number of countries, including Canada, Finland, Norway and France.

168. A guardian can also serve as an advocate without formal powers. A pilot for a Scottish Guardianship Service in that form was conducted for more than two and a half years, starting in September 2010 and concluding in March 2013. During the pilot, unaccompanied asylum seeking and trafficked children from outside the EU arriving in Scotland were provided with an advocate independent of the immigration authorities and local authority. The definition of a guardian in that respect is given at Box 3. The pilot was evaluated independently in a report produced by the specialist advisers to this inquiry, which concluded that guardians had provided clarity, coherence and continuity for the children involved and had enhanced overall service provision by creating opportunities for greater collaboration, information sharing and interagency working.[238] The Service has now received funding from the Scottish Government for a further three years.
Box 3: Definition of a guardian in the Scottish Guardianship Service pilot[239]

A guardian is someone who accompanies children and young people when they claim asylum or are trafficked and are cared for by health, education and welfare services. A guardian will help a child or young person to be actively involved in decisions that affect their life and to get the help they need, when they need it. A guardian is on the child's side, can explain what is happening to them, will listen to their views and experiences and speak up for them when needed. A guardian will also help a child or young person to plan their future, whether in the UK or elsewhere.

169. During our inquiry we heard strong support for developing a model of guardianship across the United Kingdom.[240] UNICEF UK thought that "a guardian should already have been applied a long time ago".[241] ECPAT thought that a guardian would lead to more durable solutions, more information for children and more effective joint working - a representative "by their side and on their side".[242] Barnardo's said that a guardian would enable more sustainable decision-making, gathering information through trust rather than in detailed interviewing.[243] Praxis stressed the benefits in alleviating the confusion felt by children when dealing with multiple agencies.[244] The Children's Commissioner for England considered that guardianship would greatly assist children in having their views heard in accordance with Article 12 of the UNCRC.[245]

170. Views differed on whether a system of guardianship would be better established on a statutory or non-statutory footing. Some supported a model of legal guardianship with statutory powers.[246] The Children's Society said that a statutory basis was essential to uphold training standards and independence.[247] ILPA stressed that formal powers were required to enable a guardian to give instructions to legal representatives; it said many legal professionals were "desperate" to see such a model developed.[248] The Islington Law Centre, on the basis of experience in the Scottish pilot, raised concerns that a non-statutory system could lead to a perception that some guardians were "biased" owing to the lack of a formal duty.[249]

171. Others preferred a more advocacy-focused model, and the Scottish pilot was widely seen as a possible model on which to build. The Scottish Commissioner for Children and Young People was encouraged by the pilot because of its individualised support through what was otherwise "a very complex system full of its own terminology".[250] Kathleen Marshall, Chair of the Project Advisory group for the Scottish Guardianship Service, highlighted the service's "child-centred" nature, its role in developing social networks and the positive feedback from children.[251] She acknowledged there were issues of clarity, but thought that a non-statutory footing allowed for more individualised representation, and stressed that guardians had shown "fluidity" to find a space within the existing framework.[252] Dost noted that some voluntary sector providers in England already performed a de facto guardianship role in joining up services in some instances.[253] Praxis identified the possibility of an advocacy system developing organically in England and Wales,[254] and thought that the Scottish model "would be well worth pursuing as a way forward".[255]

172. There was a clear sense that due care would have to be taken in developing a guardianship model in the English and Welsh context. ADCS, although it thought the Scottish pilot demonstrated the importance of some form of advocacy for children, said further debate was required as to "what the guardianship arrangement should look like".[256] Kent County Council thought that the idea had "some merit as a proposition", but agreed that there were issues to be addressed.[257] To this end, Kathleen Marshall stressed the need for strong working protocols, proper adaptation to the English and Welsh legal architecture, sufficient resources and legal representation to run alongside it.[258]

173. Not all witnesses were persuaded by the case for a guardianship scheme. BAAF was concerned that, despite the possible advocacy benefits, the role of guardian lacked clarity,[259] while Richard Ross, of the Solihull Council Education and Children's Services department, suggested that a guardian could add confusion to existing processes.[260] The Government acknowledged the "longstanding" demand for a guardianship scheme, but said that its proponents had "struggled to explain precisely what role such an individual will fulfil that is not already the responsibility of a professional involved in the care of looked after children." It was "not persuaded that a guardianship scheme would add value to this system".[261] The Minister, however, noted that he was "open-minded" about possible developments, particularly were the Scottish Guardianship Service to demonstrate its ability to represent children's views effectively.[262]

174. We see great potential in a system of guardianship. Many people are involved in supporting unaccompanied migrant children at present, and it could be far more effective to have one individual working throughout the process to seek to uphold a child's best interests. The best form for such a scheme remains open to question. Though we will support any system that enables guardians to support children fully, we note that any system will need to be adapted carefully, and the functions of a guardian made clear. We consider that the most appropriate way forward at this stage is to build upon the work in Scotland by piloting that advocacy approach more widely. This could also point the way to the best means to guarantee compliance with the requirement in the EU Trafficking Directive to appoint a guardian for trafficked children.[263]

175. We welcome the findings from the Scottish Guardianship Service, which demonstrate the value that a guardian can add for unaccompanied asylum seeking and trafficked children. We recommend that the Government commission pilots in England and Wales that builds upon and adapts the model of guardianship trialled in Scotland. The guardian should provide support in relation to the asylum and immigration process, support services and future planning, help children develop wider social networks, and ensure that children's views are heard in all proceedings that affect them. The Government should evaluate the case for establishing a wider guardianship scheme throughout England and Wales once those pilot schemes are complete.

LOCAL AUTHORITY SUPPORT

SUPPORT SERVICES: DUTIES AND STANDARDS

176. Article 27 of the UNCRC requires States to ensure that all children have a standard of living adequate to support their physical, mental, spiritual and moral development. In the United Kingdom the responsibility for meeting the care, accommodation, health and educational needs of young people rests with each devolved administration, and is usually a responsibility usually discharged by local authorities.

177. A duty towards an unaccompanied child may arise by virtue of a number of provisions in the Children Act 1989:

—  Section 17, which calls on local authorities to "safeguard and promote the welfare of children within their area";

—  Section 20, which imposes a duty to accommodate children where there is no adult with parental responsibility for him or her; and

—  Section 31, which imposes a duty to take a child into care where he or she is suffering or is likely to suffer significant harm unless he or she is taken into care.

178. Such duties applied to 2,150 unaccompanied asylum-seeking children as of 31 March 2012.[264] The No Recourse to Public Funds Network (NRPFN) estimated that the cost of support services to looked after unaccompanied migrant children was around £19m per year.[265]

179. The Government was clear as to the required level of support. It said that local authorities should "adopt the same approach to assessing the needs of those children as they use to assess other children in need in their area. A child's immigration status should not affect the quality of care, support and services that are provided as a result of the assessment." It noted that looked after children benefited from:

—  A social worker or personal adviser to assess the needs of a child and plan their care;

—  Entitlement to an advocate and independent visitor;

—  A care plan kept under regular review, with the process chaired by an Independent Reviewing Officer;

—  Accommodation, which could include foster care, a children's home or supported accommodation, depending on the age at which a child becomes looked after and an assessment of their needs;

—  Educational support on the same basis as other children in statutory education, including support to learn English if necessary;

—  Other services based on an assessment of need, such as health services.[266]

180. However, a significant number of witnesses noted the variability of such provision.[267] Salusbury World said that it had found "extraordinarily varied levels of support" in its work with children.[268] This was also a theme of a recent report by an independent group of members of both Houses, which included members of this Committee.[269] The Government acknowledged that there was an "issue with local authority consistency—some are very effective, and others not so", and noted it had commissioned work to examine practical care arrangements for trafficked children.[270]

181. Accommodation was one of the primary concerns raised. Rosemary Demin, a teacher who ran a project for young asylum seekers in a South London secondary school until 2012 and who gave evidence in a personal capacity, expressed concern about the over-willingness of social workers to place children at 16 into independent accommodation or semi-independent arrangements, where staff were not always trained for the specific needs of unaccompanied children.[271] ECPAT was concerned that children were more prone to go missing in such circumstances.[272] The Children's Society thought that such decisions were being "driven largely by resource considerations rather than welfare needs or children's own views".[273]

182. Jim Wade and BAAF argued that more supportive placements, such as foster care or small-group homes, would benefit educational outcomes and promote the development of strong relationships.[274] There was strong support for such placements to be more routine until children were ready to move into independent arrangements.[275] Barnardo's argued that there was a particular need to provide safe accommodation for children who have been trafficked, and who may go missing as a result of pressure from traffickers or out of fear. It wanted to see a national roll-out of a safe accommodation pilot scheme that it had worked on with the Department for Education, which focused particularly on trafficked children.[276]

183. Others were concerned that broader needs were not taken into account. The Children's Society said that there was "limited provision of specialist therapeutic support for children, and this may be affected by a young person's immigration status or transition into adulthood".[277] The Office of the Children's Commissioner for England thought that this could fail to ensure that proper rehabilitative services were provided, as required under Article 39 of the UNCRC. It drew attention in particular to the lack of mental health support services.[278] The Children's Society thought that funding pressures would limit support even further as specialist teams in local authorities were scaled back or withdrawn.[279] The British Red Cross wanted to see more comprehensive support provided to meet all the needs of children.[280]

184. Witnesses called for efforts to be concentrated on improving support arrangements. The UK Children's Commissioners, among others, called for more effective training efforts and practice development.[281] Local authority representatives drew attention to what they considered to be strong training regimes for safeguarding staff, including work by the ADCS and the London Asylum Seekers Consortium, a collection of London local authorities.[282] Kent County Council thought that clear statutory provision, setting out the responsibilities incumbent upon local authorities, would be the most effective means to clarify what was required and improve provision.[283]

185. The Children's Commissioner for England queried whether good local authorities were transferring their expertise elsewhere.[284] Praxis suggested that there was merit in resourcing some local authorities as "centres of excellence" which could disseminate good practice more widely.[285] To that end, the Minister noted that "one of the key responsibilities that Government has is to understand where there is best practice and to take a lead in sharing that best practice in bringing the performance of all local authorities up to the standards of those that are the best in this area."[286]

186. It is clear that the quality of support services varies widely. There is a gap in knowledge and, though we welcome the Government's work in establishing a clearer picture of provision as regards trafficked children, we are concerned that it has not extended this work more widely. A clear map of good practice would enable the Government to highlight excellent local authorities which can disseminate their expertise widely. This could build on the Government's work in implementing self-improvement models through the Children's Improvement Boards,[287] and in so doing would both benefit practitioners and bring up the standards of care for young people

187. There should be a particular focus on providing safe accommodation for children throughout their time in care. This holds particularly true for those, such as trafficked children, who face continuing risks to their safety. We therefore support further consideration of the wider rollout of the safe accommodation scheme piloted by Barnardo's.

188. We recommend that the Government conduct or commission a mapping exercise that sets out a comprehensive picture of local authority support services for unaccompanied migrant children. This exercise should in particular seek to identify the best performing local authorities in order to develop them as centres of excellence for the benefit of unaccompanied migrant children throughout the United Kingdom. In the light of this exercise, the Government should update its guidance provided to children's services in local authorities to address any gaps that emerge, and link it to the broader Working Together to Safeguard Children document.[288]

189. We recommend that the Government assess the cost-benefit case for rolling out the pilot safe accommodation scheme for trafficked children, operated by Barnardo's in conjunction with the Department for Education, more widely. We support the case for doing so in principle.

TRANSITION

190. The duty towards an unaccompanied migrant child does not end at 18. Local authorities continue to have a duty to provide support to former looked after children into adulthood where a duty was held for at least 13 weeks subsequent to a child's 14th birthday.[289] It is right that such duties continue to apply to vulnerable children who may continue to require support as they face fundamental decisions about their future.

191. The Government stressed that unaccompanied migrant children were supported "in the same way as any other child in need", throughout and beyond the care system. It noted that this could include support up to the age of 25 for those in education or training, or 21 more generally, including where children had no leave to remain.[290] Such support includes the provision of a personal advisor maintaining a pathway plan, and an individualised framework for managing the transition to adulthood for children over 16. Where a young person's future is uncertain, such plans should set out options both for a child remaining in the UK and returning elsewhere.[291] ADCS described pathway plans as a guide "through to independence".[292]

192. A significant number of those submitting evidence were not satisfied with the support provided. The Children's Society said that there was a general lack of concern for transition.[293] It criticised the widespread use of discretionary leave (see paragraph 108),[294] and argued that the failure to pay proper heed to continuing support needs risked destitution for young people.[295] The NSPCC agreed, stating that children often felt "largely on their own and isolated".[296] The Children's Commissioner for England thought that local authorities too often saw the transition to adulthood as a point to tail off support arrangements.[297] In that respect, Jim Wade noted that support funding was based upon age, rather than need, meaning transition was often a "resource-driven" process.[298]

193. Part of the issue was felt to be inconsistency in the quality and nature of pathway planning.[299] Dost said that the pathway planning approach was often "quite a tick-box" approach.[300] The NRPFN said that real pathway planning was "outside of the training and experience of many local authorities", leaving children in a vulnerable position.[301] BAAF considered that one of the main reasons for such issues was that local authorities were planning for an uncertain future.[302]

194. The Refugee Children's Consortium therefore called for stronger support arrangements into adulthood, to reinforce the notion of a "durable solution".[303] It called for substantial reform to plan more effectively for the needs of children.[304] ILPA wanted to see Section 31 of the Children Act 1989 used more frequently to bring children into formal care proceedings.[305]

195. UNICEF UK pointed to policies elsewhere in the EU that sought to support children during transition by applying protective duties for young people aged from 14 to 24 years; similar provisions were being considered in Wales.[306] It believed that this approach would ensure that "adequate protection and care is secured after they reach the age of 18, so there is no abrupt change, uncertainty and instability".[307] However the Scottish Commissioner for Children and Young People noted that resource constraints had to be borne in mind when developing policy in this area.[308]

196. The transition to adulthood is the point at which educational and personal ambitions are shaped, and where children prepare for independence. It is vital that services provided to those children who are looked after by the state are effective. But the evidence we have seen shows a system that leaves children with an uncertain future, and where resource constraints limit the services that can be provided. This is not in the best interests of children.

197. There needs to be reform. More certainty when making decisions about the future of unaccompanied migrant children would facilitate better transition planning, but the problem runs deeper. There is currently an insufficient focus on the needs of children during the transition to adulthood, which is borne out by support funding decreasing at that stage (see paragraph 200). This does not demonstrate a commitment to fostering the full development of unaccompanied migrant children. The Government should shift the focus in transition support onto the best interests and full development of children. In doing so, it should affirm the importance of supporting the educational, rehabilitative and personal needs of those looked after by the state.

198. Unaccompanied migrant children must be properly supported in the transition to adulthood. The Government should ensure that children receive bespoke and comprehensive plans that focus on educational goals, reintegration and rehabilitation. Such plans should give proper consideration to all possible outcomes for the child, including family reunification and reintegration whether in the home country, the UK or a third country. Care plans should take full account of the wishes of the child, and remain applicable up to the age of 21, or 25 if the young person remains in education, to enable children to realise their maximum potential.

RESOURCES

199. Witnesses were concerned that the present financial climate was leading to the under-funding of care services for unaccompanied migrant children, and that this was undermining broader support.[309] The NSPCC noted a £43m decrease in spending on asylum-seeking children between 2009/10 and 2011/12, with a further £12m reduction in the 2012/13 financial year. This, it noted, was "likely to have a significant impact on the availability of support and care services for separated children".[310]

200. Costs incurred in supporting unaccompanied children who are part of the asylum process can be reclaimed by local authorities from the Government. However, witnesses noted that the costs able to be reclaimed did not reflect those actually incurred, with the result that local authorities were obliged either to limit the services they could provide or take on the additional costs.[311] Kent County Council highlighted the particular difficulties this already caused for local authorities with high caseloads, and said that further cuts to local authority grants would therefore be likely to affect unaccompanied children particularly intensely.[312] The Refugee Children's Consortium said that this risked a "two-tier and discriminatory service for migrant children".[313]

201. There was particular concern over the reduction in funding rates when children reached 16. Croydon Council identified a gap of about 10% in funding at this stage, which it said had a "significant" impact on accommodation arrangements[314] Solihull Council suggested that there was "a clear underfunding issue" of around 20% for foster placements for children above 16.[315] Kent County Council agreed that these shortfalls were a "major pressure" on resources.[316]

202. Funding issues were especially acute in the case of "appeal rights exhausted" (ARE) children. These are former looked after unaccompanied migrant children who have exhausted all relevant appeal processes, but who may not be able to be returned owing to inadequate reception facilities. NRPFN indicated that there were 606 such care leavers supported by local authorities in 2010, at a cost of around £4m.[317]

203. However, the leaving care duties owed to such children (see paragraph 189) are amended by Schedule 3 of the Nationality, Immigration and Asylum Act 2002, which states that a local authority is not obliged to provide support to ARE children, unless a human rights assessment determines that withdrawing support would lead to a breach of the child's human rights.[318]

204. Witnesses were concerned that the applicable guidance about the interaction between the relevant statutory provisions was unclear and risked leaving children without support. Kent County Council noted that immigration authority guidance specifies that local authorities should continue to fund ARE cases only after a human rights assessment has been conducted, and even then only for a maximum period of 12 weeks. In practice, the continuance of human rights obligations meant that support was still provided, albeit without any contribution from the Government.[319] In Kent, such provision for 100 young people costs more than £1m; in Croydon around 130 ARE young people, a fifth of the care leavers in the area, were supported without Government funding, at a cost of £1.65m.[320]

205. The Office of the Children's Commissioner for England said the provision removing the obligation to support ARE children was a "stark example of how legislation, designed with the best interests of children in mind, differs in its implementation between young people who are, and those who are not, subject to immigration control".[321] The Refugee Council said that its effect was "to force young people into destitution regardless of their needs and experiences".[322]

206. Witnesses called for clear, consistent and properly funded support from local authorities, in place of the present uncertainty. [323] The ADCS wanted to see the duties of local authorities put on a clear statutory footing.[324] It reflected a wider view when it also said that funding should be administered by the Department for Education, rather than the Home Office, in a way that properly accounted for local authority costs.[325] The Islington Law Centre thought that this would remove the perception of a conflict of interest.[326]

207. The Minister, however, did not think that there was a "systemic" problem with funding in general, or with foster placements for those aged above 16.[327] He insisted that there should be no "cliff edge" for ARE children, with support based upon need.[328] The Government noted that funding streams reflected case numbers, and that it was expected that spending would be prioritised on an authority's most vulnerable children. It acknowledged that human rights needs assessments were inconsistent, and drew attention to its support for work by the Local Government Association (LGA) to improve practice.[329]

208. We understand the context of national and local resource constraints. However, such constraints do not explain the confused and unsatisfactory system of funding to support unaccompanied migrant children, which serves simply to shift funding burdens onto local authorities and put support services at risk.

209. This is especially the case for young people whose appeal rights are exhausted. We are gravely concerned by immigration authority guidance that in effect seeks to cut off support regardless of need. This puts children at risk of destitution, puts local authorities at significant legal risk if support services are stopped, and means that the costs of services that are provided fall solely onto local authorities.[330] Even where support services are continued, the duty to "avoid a breach" of a person's rights under the European Convention on Human Rights encourages a minimum, rather than an effective, level of provision.[331] In such circumstances, it is hard to see how the non-discrimination provision in the UNCRC is being upheld.

210. Support should be based on an assessment of need. Where that need is identified, it should be provided properly regardless of immigration status. We welcome work by the LGA, the ADCS and the NRPFN which seeks to explain case law and practice in this area. However, this is not authoritative guidance, and it does not supersede guidance from the immigration authorities.

211. Furthermore, as the United Kingdom as a whole owes support duties under the UNCRC to unaccompanied migrant children, it is for the Government to ensure that these duties are met in full. It is incumbent upon the Government to provide effective and properly resourced support, and to ensure clarity for local authorities and children.

212. We recommend that the system for distributing grant funding to local authorities for the support of unaccompanied migrant children be administered by the Department for Education (see also paragraph 45). We recommend that such funding should be allocated according to the real costs that arise in safeguarding unaccompanied migrant children within each local authority area.

213. We recommend that the Government amend paragraphs 1(1)(g) - (j) of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 to ensure that unaccompanied migrant children who have exhausted their appeal rights receive the full range of leaving care support to which they would otherwise be entitled, regardless of their immigration status. The Government should also issue guidance to make clear to relevant local authorities that support duties owed to children whose appeal rights are exhausted apply until such children are given leave to remain, or fail to comply with refusal directions.

EDUCATION

214. Article 28 of the UNRC articulates the right to education, stressing the importance of free primary education, the availability of secondary education, and the accessibility of higher education based upon a child's ability to benefit from it. Article 29 of the Convention adds texture to that right, calling for the development of a child's talents, personality and abilities. Rights under both Articles should be respected without discrimination in accordance with Article 2.

PRIMARY AND SECONDARY EDUCATION

215. Witnesses expressed concerns about the effectiveness of education provision for unaccompanied migrant children in the United Kingdom. Researchers from the Centre on Migration Policy and Society (COMPAS) at Oxford University drew attention to inequalities in access to early years education, especially for young people whose legal status was insecure. It said that this was exacerbated by the financial destitution faced by many children, which restricted their ability to afford school materials.[332] The British Association of Social Workers (BASW) also noted that problems with documentation hindered access to educational services, with long delays before children were enrolled on courses.[333] Indeed, one young person we met from the Brighter Futures self-advocacy group of young unaccompanied migrant children had had to decline a university place on that basis.[334]

216. The Office of the Children's Commissioner for England said that educational provision was sometimes denied owing to incorrect age assessments, or left to inadequate "English for Speakers of Other Languages" courses. It wanted to see more consistent language support for children and better access to vocational courses.[335] The Klevis Kola Foundation, a London community organisation, agreed and noted a lack of focus on the development of unaccompanied children as their language skills improved.[336]

217. Our concern at these accounts is heightened by recent reports that consideration is being given to restricting access to education for those with an irregular migration status.[337] The clear vision in the UNCRC for effective, non-discriminatory education for unaccompanied migrant children should be upheld.

218. The Government should affirm its commitment to uphold Articles 29 and 30 of the UNCRC and ensure equal access to education to children regardless of immigration status. It should assess how primary and secondary education is provided to unaccompanied migrant children, with a view to ensuring that their educational needs are met. The Government must ensure that any inequality in provision is addressed urgently.

HIGHER EDUCATION

219. There was also widespread concern over access to higher education. The Education (Student Fees, Awards and Support) (Amendment) Regulations 2011 provide that only those children with a settled refugee status or indefinite leave to remain may access higher education funding at domestic rates—that is, a maximum of £9,000 per year in tuition fees, with fee and maintenance loans made available to those eligible. This means that those with discretionary leave to remain are charged for higher education at international rates, at nearly three times the cost, without access to any loan facilities.

220. The Minister said that the policy was justified as, in cases where children were to be returned, higher education funding should not be provided for those who "should be leaving the country when they become an adult". He said if domestic funding facilities were to be extended, "all we are doing is incentivising [young people] to stay when they should be leaving".[338] The Government also noted that universities could use their discretion in charging unaccompanied asylum-seeking children on a home fee basis.[339]

221. There was strong and widespread disagreement with this view. The Refugee Children's Consortium argued that university education would equip migrant children with essential skills, wherever they eventually settled.[340] The Coram Children's Legal Centre said that the Regulations "effectively cut off" access to an important development opportunity.[341] The Children's Society thought that this prevented young people "transitioning into adulthood successfully and improving their life chances", leaving children in a situation of "great uncertainty and instability" as they awaited decisions on their future.[342] ILPA contrasted the policy with the priority given to other care leavers in accessing learning grants.[343]

222. We note this debate with interest. However, higher education funding arrangements are more appropriately a matter to be considered in the broader context of fair access to higher education, rather than within a Report considering the human rights of unaccompanied migrant children. We therefore do not express a view on this issue.

LEGAL ADVICE AND REPRESENTATION

223. Finally, we turn to legal advice and representation, which cut across issues of protection and support. The UNCRC requires that children are able to understand and contribute to the proceedings that they are subject to. Article 12 stresses that children must be provided with the opportunity to be heard in any judicial and administrative proceedings affecting them.[344]

224. Meeting the obligations under Article 12 requires some provision of qualified legal advice. Questions that are being adjudicated upon in the asylum and immigration system, whether relating to asylum determinations, leave or appeals against decisions, may involve complex questions of law, touching upon the interpretation of the European Convention on Human Rights and the UNCRC. This calls for specialist input, to allow children to have a "full voice" in a way that implements the rights of the UNCRC.[345]

225. Despite the importance of such support witnesses expressed fundamental concerns as to how effectively needs were and would be met. The Children's Society said that solicitors able to work in a child-friendly manner and properly explore a child's case were "rare".[346] Asylum Aid illustrated the problem by citing failures to attend substantive interviews, to agree interview records with the child concerned, and to represent children in appealing decisions.[347] ILPA said that "in all parts of the country the demand for high quality, child sensitive legal advice and representation outstrips supply."[348] The Refugee Council thought that the "very poor legal representation" in some settings fed into what it saw as the arbitrary use of discretionary leave (see paragraph 108).[349] There was also comment on the variability in the quality of advice across the country.[350] The Children's Society noted that many young people struggled to get good quality representation, particularly outside London.[351]

226. Other witnesses looked to the future with concern. Following the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, legally-aided advice will be available only to those children claiming asylum. Those seeking further discretionary leave under Article 8 of the ECHR or family reunion, or who are involved in NRM cases prior to the receipt of a "reasonable grounds" decision, will no longer be eligible. Jim Wade expressed concern over the changes, calling legally aided representation "crucial" for protecting the best interests of unaccompanied migrant children.[352]

227. The Refugee Children's Consortium estimated that this could take as many as 2,500 non-asylum immigration cases involving children out of scope.[353] It thought that the changes could "not only place a huge burden on local authorities, but will also result in these children receiving second-rate, unregulated advice, and being forced to appear at the tribunal, and potentially in the higher courts, without representation".[354] The Children's Commissioner for Wales said that the implications of the changes would be "devastating in relation to access to justice".[355] Solihull Council said that there was a sense that the changes had been "rather sleepwalked into".[356]

228. ILPA also suggested that the changes made as a result of the Act could affect the wider availability of advice, as immigration work could cease to become financially viable.[357] The Refugee Children's Consortium noted that, because asylum work was "cross-subsidised" by immigration work, there would also be knock-on effects for legal advice in relation to asylum claims.[358] Accordingly, many witnesses called for immigration cases to be brought back within the scope of legal aid, using a power under Section 9(2) of the Act.[359]

229. The Government stressed that free legal advice was available during the asylum process, and that there were other individuals involved in children's lives—personal advisors, social workers, foster parents, and Independent Reviewing Officers—who work to identify and represent the best interests of children. It said this was an "appropriate support and advice structure".[360] The Minister also noted the Government's commitment to examine whether further assistance would need to be provided to children negotiating the immigration process.[361]

230. The picture painted of the legal landscape in this area is deeply troubling. The Government should conduct a mapping exercise of the legal advice that is available to establish a clear picture of the effectiveness of provision.

231. We recommend that the Government conduct an immediate assessment of the availability and quality of legally-aided legal representation for unaccompanied migrant children in England and Wales.

232. We are particularly concerned by the changes to legal aid provision. A fully developed case for asylum or leave can demand an understanding of relevant domestic and international obligations, including case law. It is unrealistic to expect unaccompanied migrant children to be able to navigate such processes without the support of qualified legal professionals. It is also unrealistic to expect other professionals, with specific support responsibilities towards children, to be able to take on this role. It is not their place, and nor should it be, to provide detailed legal advice.

233. Furthermore, the cost-benefit case for the changes is not clear. Where local authorities owe a duty under the Children Act 1989, a needs assessment may demand that legal advice be provided in any case.[362] Withdrawing legally-aided support may simply shift spending from the legal aid budget to already stretched local budgets; indeed, the LGA projected that it could cost local authorities as much as £10m annually.[363] Nevertheless, we acknowledge that changes to legal aid must be reviewed in the round, given that changes in one area could lead to a reduction in provision elsewhere.

234. The Government should pay particular attention to the impact of withdrawing legal aid for non-asylum immigration cases involving unaccompanied migrant children when reviewing the changes to legal aid entitlement effected in the Legal Aid, Sentencing and Punishment of offenders Act 2012. The Government should give serious consideration in any such review to the cost-benefit case for providing legal aid to all unaccompanied migrant children involved in immigration proceedings.


234   See Asylum Aid, COMPAS. Refugee Council Back

235   UN Committee on the Rights of the Childe, General Comment No. 6, Treatment of unaccompanied and separated children outside their country of origin, op. cit. paragraph 21. Back

236   UN Committee on the Rights of the Child, 49th Session 'Consideration of Reports Submitted by State Parties Under Article 44 of the Convention, Concluding Observations United Kingdom of Great Britain and Northern Ireland'; paragraph 71, October 2008, Back

237   UNHCR Back

238   Heaven Crawley and Ravi KS Kohli, 'She endures with me': An evaluation of the Scottish Guardianship Service pilot, 2013: www.scottishrefugeecouncil.org.uk/assets/0000/5864/Final_Report_2504_2.pdf Back

239   Definition agreed by the Scottish Guardianship Service Pilot Project Advisory Group. See Heaven Crawley and Ravi KS Kohli, She endures with me: an evaluation of Scottish Guardianship Service pilot, op. cit. Back

240   ILPA, Refugee Children's Consortium, CFAB, Children's Society, British Red Cross, Barnardo's, ECPAT, Law Centre (Northern Ireland), No Recourse to Public Funds Network, Office of the Children's Commissioner, NSPCC, BASW, Coram Children's Legal Centre, Alan Morice, RCPCH, Royal Holloway and Tavistock Centre, Praxis, Refugee Council, Refugee Action, Brighter Futures visit, Coram Children's Legal Centre visit Back

241   Q14. See also Q14 (Children's Society) Back

242   ECPAT. Back

243   Barnardo's Back

244   Praxis Back

245   Office of the Children's Commissioner for England Back

246   ECPAT, No Recours to Public Funds Network, Refugee Children's Consortium, Refugee Council, Law Centre (Northern Ireland), NSPCC, ILPA, Children's Society Back

247   Children's Society Back

248   Q47, ILPA Back

249   Q47.  Back

250   Q37 Back

251   Q46. See also Kathleen Marshall Back

252   Q46 Back

253   Q58. See also Q14 (Refugee Council), Q47 (ILPA) Back

254   ibid Back

255   Q63. See also BASW, Q14 (Refugee Council) Back

256   Q76. See also NSPCC, which wanted to ensure that young people were consulted as part of determining what the scheme should look like. Back

257   ibid Back

258   Kathleen Marshall Back

259   Q63 Back

260   Q76 Back

261   HM Government Back

262   Q100 Back

263   Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, op. cit Back

264   Supplementary submission from HM Government Back

265   No Recourse to Public Funds Network Back

266   HM Government Back

267   See also ECPAT, OCCE, Salusbury World, Compas (Oxford University), RCC, UNICEF, Q38 (Children's Commissioner for England), Q52 (Praxis), Q53 (Jim Wade), Get Qref (BASW) Back

268   Salusbury World Back

269   http://www.childrenssociety.org.uk/sites/default/files/tcs/asylum_support_inquiry_report_final.pdf Back

270   HMG Back

271   Rosemary Demin. See also Refugee Chilren's Consortium and Law Centre (Northern Ireland), Klevis Kola Foundation Back

272   ECPAT. See also Barnardo's, Unseen, Law Centre (Northern Ireland) Back

273   Children's Society. See also Q53 (Jim Wade) Back

274   Q55. See also Q53 (Jim Wade) Back

275   CFAB, Children's Society, NSPCC, Office of the Children's Commissioner for England, Q53-54 (Jim Wade) Back

276   Barnardo's. See also Unseen, ECPAT Back

277   Children's Society Back

278   Office of the Children's Commissioner for England. See also Unseen Back

279   Children's Society. See also Barnardo's, Office of the Children's Commissioner for England, Salusbury World, COMPAS, NSPCC. Barnardo's was concerned that children were not being referred to vulnerable adult teams when they left care. Back

280   British Red Cross. See also Barnardo's, Refugee Action Back

281   Q38. See also Q7 (Refugee Council), Barnardo's Back

282   Q70 (ADCS, Croydon Council) Back

283   Kent County Council. See also ECPAT Back

284   Q38. See also Q53 (Jim Wade) Back

285   Q52 Back

286   Q91 Back

287   Supplementary submission from HM Government Back

288   HM Government, Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children, March 2013, op. cit. Back

289   See, s23 and s24 Children Act 1989, as amended by the Children (Leaving Care) Act 2000. These are supplemented by the Department for Education, The Children Act 1989 Guidance and Regulations Volume 3: Planning Transition to Adulthood for Care Leavers, 2010: http:.//media.education.gov.uk/assets/files/pdf/v/volume%203%20planning%20transition%20adulthood%20for%20care%20leavers.pdf Back

290   HM Government Back

291   No Recourse to Public Funds Network Back

292   Q77 Back

293   Q5 Back

294   Q11 Back

295   Children's Society Back

296   NSPCC Back

297   Office of the Children's Commissioner for England. See also Q38 (Children's Commissioner for England, Scottish Commissioner for Children and Young People), NSPCC, Children's Society, Coram Children's Legal Centre, Refugee Council, Praxis, ECPAT Back

298   Q56 Back

299   Children's Society, Praxis, Coram Children's Legal Centre. Q11 (Children's Society) Back

300   Q55. See also Rosemary Demin Back

301   No Recourse to Public Funds Network Back

302   Q57. See also Q62 (Jim Wade) Q77 (ADCS) Back

303   Refugee Children's Consortium. See also Salusbury World, Children's Society, No Recourse to Public Funds Network, Klevis Kola Foundation, Office of the Children's Commissioner for England Back

304   Refugee Children's Consortium Back

305   ILPA Back

306   Q4. See also Q40 (Keith Towler) Back

307   Q12 Back

308   Q40 Back

309   Refugee Children's Consortium, Children's Society, No Recourse to Public Funds Network Back

310   NSPCC Back

311   Refugee Action, Office of the Children's Commissioner for England, Children's Society, Q74 (Children's Commissioner for England) Back

312   Kent County Council. See also Refugee Children's Consortium, BASW Back

313   Refugee Children's Consortium Back

314   Q73 Back

315   ibid Back

316   ibid Back

317   No Recourse to Public Funds Network Back

318   Schedule 3, Nationality, Immigration and Asylum Act 2002 Back

319   Kent County Council. Back

320   Q69 Back

321   Office of the Children's Commissioner for England Back

322   Refugee Council Back

323   ECPAT, No Recourse to Public Funds Network, ILPA, Praxis, Kent County Council, Refugee Children's Consortium Back

324   Q66. See also Q69 (Croydon Council, Kent County Council) Back

325   Refugee Council, Refugee Chilren's Consortium, Coram Children's Legal Centre, Praxis, Kent County Council, No Recourse to Public Funds Network, Refugee Action, Office of the Children's Commissioner for England, Q48 (Baljeet Sandhu), Q73 (Solihull Council), Q74 (ADCS) Back

326   Q48 Back

327   Q94 Back

328   ibid Back

329   HM Government. See also Refugee Children's Consortium, Refugee Action Back

330   Kent County Council Back

331   No Recourse to Public Funds Network Back

332   COMPAS. See also Office of the Children's Commissioner for England Back

333   BASW. See also COMPAS, Klevis Kola Foundation Back

334   Brighter Futures visit  Back

335   Office of the Children's Commissioner for England Back

336   Klevis Kola Foundation Back

337   The Guardian, Ministers planning immigration crackdown on 'education tourists', March 2013:http://www.guardian.co.uk/politics/2013/mar/27/ministers-immigration-crackdown-education-tourists?CMP=twt_gu

 Back

338   Q95 Back

339   Supplementary submission from HM Government Back

340   Refugee Chilren's Consortium Back

341   Coram Chilren's Legal Centre. See also ILPA, Refugee Children's Consortium, CFAB Back

342   Q11. See also Children's Society, Praxis Back

343   ILPA Back

344   ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 Back

345   Coram Children's Legal Centre. See also Refugee Council Back

346   See also Refugee Action, Coram Children's Legal Centre, Salusbury World, Rosemary Demin Back

347   Asylum Aid. See also Salusbury World, ILPA, Refugee Council, Refugee Action Back

348   ILPA. See also Refugee Children's Consortium, Coram Children's Legal Centre, NSPCC, Barnardo's Back

349   Q12 Back

350   Q42 (ILPA), see also Q59 (Dost) Back

351   Children's Society. See also Coram Children's Legal Centre Back

352   Q57. See also Salusbury World, ILPA, FGAB, British Red Cross, Barnardo's, COMPAS, office of the Children's Commissioner for England, Coram Children's Legal Centre, CFAB, Welsh Refugee Council, Praxis. Q44 (Islington Law Centre) Back

353   See also Q43 (ILPA) Back

354   Refugee Children's Consortium. See also Q43 (ILPA) Back

355   Q36 Back

356   Q82 Back

357   Q42. See also Coram Children's Legal Centre supplementary submission, Barnardo's, Q60 (Praxis) Back

358   Refugee Children's Consortium Back

359   Refugee Children's Consortium. See also ILPA, Q43 (ILPA), British Red Cross, Barnardo's, Salusbury World, Office of the Children's Commissioner for England, Coram Children's Legal Centre, CFAB, Welsh Refugee Council, Praxis, Refugee Action Back

360   HM Government Back

361   Q101 Back

362   Supplementary submission from Coram Children's Legal Centre, ILPA, Refugee Children's Consortium, Q43 (ILPA). Q83 (Solihull Council) were "apprehensive" about the prospect. Back

363   Refugee Chilren's Consortium Back


 
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© Parliamentary copyright 2013
Prepared 12 June 2013