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Baroness Williams of Crosby: I apologise that I was not in the Chamber when the noble Viscount started his remarks, but I wish to give him the assurance that I have every intention of writing about the case to the noble Baroness. It troubles me because my understanding is that as of 1st April the young person was still in detention and had been there for a substantial part of the past 18 months. I shall send the details to the Minister.

Baroness David: Despite the careful speech of the noble Baroness in response to the earlier amendment moved by my noble friend Lady Hilton, there are still anxieties about children being detained when they come to this country. So I am happy to support the right reverend Prelate's amendment.

After the sad death of Lady Faithfull earlier this year, I have taken on the job of chairing the all-party Group for Children for the remainder of the Session. I am anxious to follow her example in attempting to improve

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the plight of unaccompanied children asylum seekers. I am sure that most Members of the Committee here today will remember the amendment put forward by Lady Faithfull and the noble and learned Lord, Lord Brightman. Members will remember their successful efforts during the passage of the 1993 Asylum Bill through this House, when the noble and learned Lord moved an amendment at Report stage to set up the panel of advisers for unaccompanied refugee children at the Refugee Council. I very much regret that the noble and learned Lord is not here today as he has been seriously ill and, although improving, he will not be back for another week. His help would have been very much to our advantage while discussing these children. His amendment, which was supported on all sides of the House, was won by a large majority, 169 to 114.

The panel, set up and funded by the Home Office, has been highly successful and is working well. The Minister referred to it when she spoke earlier. The panel is very keen for the amendment to be accepted, as it would help in its work and give more power to its elbow. None of us can contemplate the detention of children with equanimity. Nor can we tolerate the removal of children to a country without certainty that they will be adequately cared for when they arrive there. And this does no more than put into law the informal Home Office policy that now exists and which again I spoke to earlier.

The acceptance of this amendment would be a real step forward in the protection of vulnerable children. I hope very much that the Minister can look on it favourably.

Lord Henderson of Brompton: I break my silence for the first time during the Committee stage to say that I too very much hope that the noble Baroness will respond favourably to the amendment. I especially bear in mind the words which she uttered earlier today which I noted, that understanding the need of children is very much the intention of the Government. If she could only display the generosity of that sentiment in regard to this amendment and the next, I should be most grateful, as I am sure would most of the Committee.

Lord Dubs: I support the amendment. I have already declared an interest in the Bill. Until about a little under a year ago, I was director of the Refugee Council. I was director at the time the panel was established. I hope that I played some part in ensuring that it came effectively into operation. I believe that it has been a success. It has done a great deal to protect the rights of unaccompanied refugee children.

The amendment would go one stage further. There can be no one who accepts the principle that children should be detained. I visited Campsfield House a couple of years ago. Children were detained there. I know that children have been detained at other centres run by the Home Office, prisons, and detention centres. It seems to me deplorable that young persons against whom there are no criminal charges, who are perfectly innocent, are being detained on the decision of a Home Office official. No matter how worthy the official, and how

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objectively the official seeks to use his or her powers, it seems wrong in principle that anyone should be denied his liberty in this country without a proper judicial process.

The amendment does not deal with that principle, but it provides a safeguard against children being held in detention. I give it my warm support.

Lord Winston: Perhaps I may ask the Committee to take note of one case which has just been drawn to my attention by the refugee legal centre. It illustrates some of the difficult problems with regard to age. An asylum seeker arrived in the UK in December 1994 when he was 15, giving his age as 21. He was held in detention for four months before being granted bail by the independent adjudicator into the care of Hillingdon social services. They accepted that he was a minor under 18.

The Immigration Service has always maintained that he was an adult. The asylum seeker has since been detained twice and is currently in detention as at 1st April 1996. That is despite two reports by independent medical experts. I know both medical experts. One is Dr. Persoff, a consultant fellow of the Royal College of Physicians; the other is Dr. Peter Renton, an expert radiologist whom I have known for many years.

Dr. Persoff reports that both clinically and radiologically the age of this asylum seeker is just now over 17, which accords with his stated age of birth. Dr. Peter Renton reports on his radiology, saying that the distal radial growth plate is on the point of fusing but is not yet totally fused, which would make his age around 17. So there is some congruence on that issue. However, the immigration services still do not believe that the asylum seeker is a minor, and he is being detained in a unit with adults. No special provision is being made for his education. It illustrates the difficulty of this grey area.

Lord Avebury: I am sorry to hear from the noble Lord that radiological techniques are being used for age determination despite the fact that he deprecated them earlier. I ventured to point out earlier that the BMA reached the conclusion that radiological techniques for age determination should not be applied, and that it was incorrect and ethically wrong to use a technique of an invasive nature, as the noble Lord has already pointed out, when there is no clinical necessity for it.

I say this with some regret because the absence of any reliable techniques for age determination was one of the factors which gave rise to the earlier amendment. It is at the centre of the amendment moved by the right reverend Prelate.

I suggested--I still believe that it is a sensible idea--that one should ask paediatricians to express an opinion and, if the Home Secretary wishes, take a majority opinion of several of them if there is doubt.

I warmly support the right reverend Prelate in the third of his paragraphs. If we could get the concessions that the noble Baroness said already exist written into the statute book, it would be highly desirable. Whatever the present Home Secretary may do regarding ensuring that adequate arrangements exist for the child's

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reception and care overseas, if it is not a statutory obligation it could always be watered down or eliminated by someone less liberal who occupies the post of Home Secretary in the future. I hope therefore that the noble Baroness will find it possible to do as the right reverend Prelate suggests and incorporate at least subsection (3) in the statute.

11.15 p.m.

Lord Burnham: Is the case to which the noble Lord, Lord Winston, referred in relation to this amendment the same as that referred to by the noble Baroness, Lady Williams, on a number of occasions in speaking to this amendment and earlier ones? It seems remarkably familiar.

Baroness Williams of Crosby: I think that is so.

Baroness Blatch: It is very difficult to respond to particular cases. I hope the noble Lord will write to me with the evidence that he cites in the course of this debate. I shall reply fully to him and make any reply I give to either the noble Baroness or the noble Lord available to Members of the Committee who have been interested in the debate.

I have to say to the noble Lord, Lord Avebury, that through both these and earlier amendments there is a desire on the part of the Opposition and the right reverend Prelate to put the burden of proof on the Home Secretary. It would seem that, given that the Home Secretary will not have the information that will give the particular age of a person--particularly in the case cited, in which the child himself actually claimed to be another age--that immediately causes a problem. To deny the methodology for determining age seems quite extraordinary and would create a conflict. As the noble Lord knows, I shall oppose the reversal of the burden of proof.

The amendment as worded would apply to any child who had expressed a fear of return, even where that fear was not based on any convention reason. It also confuses the issue of whether a child is a refugee with the issue of whether a child should be removed.

As I set out in great detail earlier, we recognise the potential vulnerability of an unaccompanied asylum seeking child. That is why we have special provisions in the Immigration Rules for handling their cases. Last year we set up a special case working unit to ensure that their applications were given priority and were considered by specialist case workers. That development has been widely welcomed.

During the passage of the Asylum and Immigration Appeals Act 1993, my right honourable friend the then Parliamentary Under-Secretary of State said in another place that the Government would not send an unaccompanied child to another country, whether or not that child had claimed asylum, unless they were satisfied that safe and adequate reception arrangements had been made. I am happy to repeat that commitment today. Any return of an unaccompanied child is arranged by negotiation with those responsible for his or her care.

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The Government's view is that where a child has no claim to refugee status it is normally right that he or she should be returned to their own family, community and culture. That is consistent with UNHCR guidelines which emphasise the importance of family unity.

If a child has no claim to refugee status but we cannot be satisfied about reception arrangements, then we grant the child exceptional leave to remain. But the decision whether to return a child must be made after the child's asylum application has been considered.

The amendment as worded would apply to any child who had expressed a fear of return, even where that fear, as I said, was not based on any convention reason; it is therefore open to abuse. While we sympathise with the sentiments behind the amendment, we cannot agree that it would add anything to our present safeguards for unaccompanied children.

Amendment No. 49 also deals with disputes over the age of an applicant. As I have already explained, the Immigration Rules define an asylum seeking child as a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age. This amendment would reverse the current position and require the Secretary of State to demonstrate that a claimed age for which there was no evidence was incorrect. I explained in relation to other amendments why it is right that the burden of proof should remain with the applicant.

To return to the statistics I gave on this point earlier, the vast majority of applicants are 16 or 17. It seems to me that if somebody claims to be 16 or 17--indeed, if somebody older than 18 claims to be 16 or 17--in order to enjoy the more generous provisions, it is incumbent upon somebody to prove that that is his (or her) age. That is the case of the person who I understand from what has been said had claimed to be 24 when in fact that person was only 15, 16 or 17.

The right reverend Prelate asked me a particular question. We are prepared to look at any evidence submitted on behalf of the applicant as to the applicant's age. That can include medical evidence and indeed any evidence that would substantiate the age that is claimed. But we see no need for setting up a new mechanism for that purpose.

Let me also say to the right reverend Prelate, who referred to a statutory reference to reception arrangements, that we believe that such a measure is unnecessary. It would address a non-existent problem. No one--certainly no one speaking in the debate today, now or earlier--suggested that our approach to ensuring reception arrangements in the receiving country is anything other than scrupulous. We have never been found wanting in that regard. I therefore hope that the amendment will not be accepted.

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