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Lord Roberts of Llandudno: My Lords, I, too, give wholehearted support to the amendment of the noble Earl, Lord Listowel. I do so for a number of reasons. The first concerns transparency. We have heard today a dispute over numbers, but there would be no dispute if we had a record of how many were actually in detention. We should also know their ages. There is a great difference between a two year-old and a 17 year-old. In our discussion of the Section 9 evaluation, 219 minor dependants were mentioned. Were these teenagers or were they children of pre-school age? We do not know. Our ability to make policy that is positive is hindered by our lack of knowledge. We would be able to act in a far more focused way if we knew the ages of these children and

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possibly—I do not know how we would do this—their level of development or attainment, as children in different circumstances develop at different paces. The amendment is the beginning of something valuable and I am pleased to support it.

Lord Bassam of Brighton: My Lords, this amendment would establish guidelines to specify the maximum time for which a child could be held in immigration detention and would enable the guidelines to allow children to be detained for varying periods depending on age or the place to where the child was being returned. The guidelines would also specify different time limits for detention for children falling into “different classes”, although the amendment does not make clear what this could include. The amendment would also require the Secretary of State to publish an annual report detailing the time that children spend in detention and what happens to their cases.

In Grand Committee, I explained that the Government are confident that robust arrangements exist to ensure that the detention of children is kept to the minimum. We have made it plain on many occasions, most recently in discussions surrounding the draft EU returns directive, that we cannot accept a fixed upper time limit on immigration detention, whether for families with children or single adults. Our position has remained consistent.

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A fixed time limit would be out of step with longstanding UK law and policy and go beyond the requirement of Article 5 of the ECHR. A fixed upper limit, or fixed upper limits, which the noble Earl, Lord Listowel, suggested should vary depending on the age of the child or on where the child is being returned to, would only encourage families to delay immigration and asylum processes, including the frustration of lawful removal attempts, in order to reach a point where they would be released from detention. That is simply not acceptable.

The amendment, as it relates to children of different age groups, would have implications also for families with children of mixed ages. Individuals and families are detained for only as long as is reasonably necessary to achieve the purpose for which detention was authorised, which in the case of families is most usually removal from the UK. What is reasonable will vary from case to case, and the actions of parents prolong their detention.

I appreciate the concern that lies behind the amendment, but we cannot have a situation whereby families with children are automatically released from detention at a particular point. We are required to ensure that any detention lasts for as short a time as is necessary. That is extremely important in the case of families with children. In practice, the vast majority of families with children are detained for a small number of days prior to removal. Therefore, in practice, we already go some way toward meeting the main aim behind that part of the amendment.

Furthermore, the amendment would impose a requirement on the Secretary of State to publish an annual report relating to matters concerning the detention of children. As I explained in Grand Committee, to

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require the presentation to Parliament of a report on all children detained as a result of the agency’s activities would be extremely resource-intensive and would serve no practical purpose given the short period of detention for the majority of children and the safeguards that we already have in place to ensure that detention lasts for no longer than necessary.

A system of ministerial authorisation for the detention of children beyond 28 days was introduced in December 2003 to ensure oversight. In the relatively rare event that detention is protracted, the outcome of a thorough process of assessment and consideration is reflected in advice which the immigration Minister receives. On the basis of that, he decides whether detention should continue.

The assessment and monitoring processes ensure that issues relating to the welfare of the children detained are identified and addressed. The asylum bulletin publishes the number of people detained under immigration powers on the last Saturday of each quarter. Statistics on the number of persons recorded as being removed from the UK on leaving detention each quarter also are published in the bulletin.

I understand the concern about the detention of children and I share the aspiration for transparency. We share those concerns, which is why we have introduced the measures that I described. The noble Earl moves his amendment with good heart. We have gone some way to addressing his concerns. However, the unintended consequences of the amendment and the onerous nature of the statistical grubbing-around that it involves mean that he seeks to impose on us an impractical framework. For that reason, I hope that he will withdraw his amendment.

The Earl of Listowel: My Lords, I thank the Minister for his careful reply to my amendment. I am grateful to the noble Lords, Lord Judd, Lord Roberts and Lord Avebury, for speaking in support of its principles. I recognise the difficulties of which the Minister spoke, but the children to whom the amendment would apply are in a vulnerable situation. I understood in Committee that a review of how statistics on them are kept was taking place. If further information on that is available, I would be grateful to hear it from the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Avebury moved Amendment No. 27A:

The noble Lord said: My Lords, I certainly hope that the Minister will not avoid the responsibility of giving me an answer on this amendment on the grounds that it will be dealt with in the plan of action following the consultation on UASC, which is now not going to appear until the end of November, even though the report on the consultation was originally promised by the end of August.

While I can just about understand the Government’s need to work out some of the details regarding the specialist authorities, the technical

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problem of age determination is a self-contained issue that could be settled independently of the general framework of the procedures for dealing with UASC. Although the Minister appeared to think that I was suggesting that dental X-rays should be used subject to guidelines, let me say again, as the wording of the amendment should make crystal clear, that I oppose the use of ionising radiation for the purpose of age determination, full stop. The guidelines I was talking about in my speech on 18 July were those developed by the London boroughs of Hillingdon and Croydon, which have been approved by the courts, and contain no mention of X-rays, as I would have thought the Minister's brief would have told him.

The use of X-rays for age determination was stopped on 22 February 1982 by the then Home Secretary, Mr William Whitelaw, as he then was, following a report by my office, published in June 1981. The matter has been reviewed by Ministers once since then, in 1996, when there was correspondence between John Horam MP at the Department of Health and the late Baroness Blatch at the Home Office, when Mr Horam reaffirmed the stance taken in 1982. In 2003, the Royal College of Paediatrics and Child Health reaffirmed that it is inappropriate for X-rays to be used to assist in age determination for immigration purposes, and in response to the UASC consultation, this was again confirmed by leading professional opinion, including particularly the Children's Commissioner, Sir Al Aynsley-Green, himself a noted paediatric endocrinologist.

It is unethical to use X-rays for non-clinical purposes just as it was in 1981—nothing has changed since then—and any supposed improvements in the accuracy of the process are irrelevant. As far as I know, the accuracy is still plus or minus two years, but that is for middle-class American children on whom the original work was done, and there are no base statistics on children coming from the main countries of origin, such as Somalia or Afghanistan, let alone on the adolescent populations of those countries. There are no averages or standard deviations of the measured characteristics of the children in those countries against which measurements of particular asylum seekers could be compared. The whole idea of assessing age by looking at the physical characteristics of unmeasured populations is bad science, worthy of an article by Mr Ben Goldacre in the Guardian.

In our last debate, I referred the Minister to Dr Heaven Crawley’s analysis on asylum, age disputes and the process of age assessment, published by ILPA, and I hope that he has had the opportunity of reading that work, in which the use of X-rays is condemned but alternatives are developed. I sometimes wonder whether the consultations in which the Government engage are genuine, or designed to arrive at conclusions that they have already pre-determined. In this case, the overwhelming majority of expert professional opinion is against the use of X-rays, reasonable alternatives have been developed, and the proposal should be dropped. I beg to move.

Lord Bassam of Brighton: My Lords, I understand that this amendment has been tabled because of concerns about proposals contained in our consultation paper,

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Planning Better Outcomes and Support for Unaccompanied Asylum-Seeking Children. I am not going to duck the question, as the noble Lord suggested, but it might be helpful if I set out some of the background for those noble Lords who were not present in Grand Committee when a similar amendment was debated.

The consultation paper put forward a number of proposals to reform the arrangements for how unaccompanied asylum-seeking children are treated through the asylum and care process. One of our proposals is to make greater use of dental X-rays for the purposes of assessing the age of young asylum seekers where there is doubt about the person's claimed age.

As some noble Lords may be aware, in recent years there has been clear evidence of a rising level of serious abuse of the asylum and support system by adults claiming to be children. We believe that this can lead to very serious child protection issues, with adults potentially being placed among vulnerable children in the care system or children being wrongly routed into an adult system which can lead to their being detained. It is therefore imperative that we and local authorities work closely together to improve the reliability of age-assessment procedures. We have been working to that end.

In recent years we have relied heavily on the skills and knowledge of social workers. While it is still our view that a social worker's assessment of age should be an integral and essential part of the age-assessment process, we believe that a dental X-ray can be a useful additional tool in the overall decision-making process, particularly where there is a continuing dispute as to the outcome of the age assessment.

As noble Lords will be aware, some local authorities already arrange a dental X-ray and subsequent report by an expert in the field to assist in their final decision.

Lord Avebury: My Lords, I challenge the noble Lord. I do not believe that local authorities arrange for dental X-rays. I believe that the advice that was given by the Department of Health was that X-rays should not be used for this purpose and that local authorities are all awaiting the outcome of the consultations, which include mention of the process. They would not jump the gun by X-raying children now.

Lord Bassam of Brighton: My Lords, I am advised that some local authorities use dental X-rays in that way. I asked officials to advise me on that point. Of course I shall check again and seek further clarification, but I maintain that X-rays are used in that way. Moreover, some applicants who have been assessed as adults themselves commission dental X-rays to support their claim to be under 18, so clearly applicants see this as a valuable process.

We are aware that X-rays on their own cannot determine age precisely; no procedure can give that certainty. However, we believe that they can, when taken with a range of other evidence such as the social worker assessment, provide a better means of narrowing the range of possible ages and thus assist the decision-maker. As I said in Grand Committee, X-ray procedures

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involve a small degree of exposure to ionising radiation—we are all familiar with that—but I reassure noble Lords that we have been advised that the risk of any harm is absolutely minimal.

I have concerns that if this amendment were enacted it would make the operation of our current policy very difficult. As I explained in Grand Committee, this amendment would appear to mean that an immigration officer would not be able to take into account a social worker's assessment if it depended in any way on dental analysis. It might also prevent an individual seeking to rely on their own commissioned dental X-rays to support a claimed age.

We have to find ways to improve the process for age assessments and their reliability and to minimise the serious child protection issues that may arise following incorrect assessments. Many EU member states currently use medical examinations for the purposes of age assessment and it is a procedure which is specifically permitted by the EU Procedures Directive. We have given a commitment to share research that we have commissioned on the subject of ethnic variation in relation to dental development—a point which the noble Lord, Lord Avebury, made today and in Grand Committee—and we are still awaiting the results of this research and expect this to be published sometime toward the end of the year.

For those reasons I invite the noble Lord to withdraw his amendment.

Lord Winston: My Lords, I must voice some disquiet at the use of ionising radiation in any form when it is for the purposes of a non-medical intervention. It raises concerns. Irrespective of the EU directive, is the Minister completely satisfied that that kind of intervention is ethically justified given that the information that one would get from such an X-ray would be of only limited value and that assessment of a young person can be made by other means that are sufficiently adequate in most cases?

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Lord Bassam of Brighton: My Lords, this is Report stage, and it would not be my usual practice to respond to an intervention made after I have sat down, but I will do so in this instance. In my peroration, I was very careful to say that we see this as being just one tool among a range of methods that are adopted. We rely very much and carefully on assessment procedures that social services, social workers in particular, adopt. We do not rely entirely on this technique and method for the very reason that noble Lords have given; that there is still a degree of imprecision. It is one element that is used in some cases where we think it is most appropriate. It is done for very good reasons indeed, which are primarily to ensure that young people, children in particular, are placed in the right setting. It is for that very good reason that we take considerable care here and why we have to rely on the expertise of social workers. I hear what my noble friend says, and he is very knowledgeable in these matters. Those considerations form part of our thinking.

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Lord Avebury: My Lords, the Minister has confirmed my worst fears; that he is going to disregard all professional opinion on this matter. I am delighted that the noble Lord, Lord Winston, intervened, because he brings a high degree of professional expertise to bear on the question of the use of ionising radiation for non-clinical purposes.

If the Minister asked the same question of the BMA, the BDA, the royal colleges, particularly the Royal College of Paediatrics and Child Health, he would have had the same reaction that we have heard from the noble Lord, Lord Winston, this afternoon. I can only take it from the reply that we heard this afternoon that it is the Government’s intention to ignore all professional opinion that disagrees with their point of view. The noble Lord said that the use of dental X-rays is in fact essential to the process of age determination, which means that it will be used whatever the experts tell them. I deny that dental X-rays are necessary.

Has the Minister read the report by Dr Heaven Crawley, to which I referred him when we discussed this in Grand Committee? I take it from the expression on his face that he has not read the report, which is an extremely thorough analysis not only of the use of X-rays but of other methods of age determination that have been found to be fully effective, particularly those developed by the London boroughs of Merton and Croydon, which have been approved in our courts of law as being fully effective. The noble Lord is absolutely wrong to say that the denial of the use of dental X-rays is going to inhibit or damage in any way the process of immigration control.

I shall return to this subject again as frequently as I can, and I would press the amendment to a Division this evening were it not so late in the afternoon. It is the most disappointing reply that I have heard from the Minister in the whole course of these proceedings, and that is saying something. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Judd moved Amendment No. 28:

The noble Lord said: My Lords, the Refugee Children’s Consortium brings together a very wide cross-section of voluntary agencies working with children in a refugee situation and throughout the United Kingdom. That consortium is deeply concerned about the protection of the rights of appeal for children in one important respect. Section 83 of the 2002 Act generally provides a person who is refused asylum with a right to appeal even though he or she has been granted leave to enter or remain for other reasons. However, Section 83(1)(b) denies that right if the leave granted amounts to no more than one year. That predominantly affects unaccompanied children seeking asylum. In 2006, unaccompanied

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children accounted for 84 per cent of all grants of discretionary leave, despite constituting only 13 per cent of applications.

The recent change to the discretionary leave policy lowered the age to which discretionary leave would be granted from 18 to 171/2, with effect from last April. Many more unaccompanied children seeking asylum will be caught by Section 83. Currently, about 1,500 children are aged 16 or 17 on arrival. The majority of those are likely to be over 161/2 by the time an initial decision is made on their asylum claim and are, therefore, likely to be denied access to the appellate system while they remain children.

In Grand Committee, my noble friend restated the Government’s position that if leave is granted for a period of less than 12 months,

However, this response assumes that the appeal is delayed only until the point at which leave expires, while in reality the wait is much longer, because, before an appeal can be launched, the applicant must await a decision on their extension application. In the past, applicants have been left waiting for many months and years for that decision. Although the new asylum model aims to reduce such delays, the target for resolving cases within six months does not work for these cases. Although the Home Office may argue that the target is met by the grant of discretionary leave within six months of the initial asylum claim, Section 83 prevents these cases being resolved. The risk is that the new process achieves nothing for these cases and individuals remain waiting for many years to resolve their case.

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