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The reduction of administrative burdens is linked to the section on unlocking business potential, especially for small and medium-sized enterprises, but the noble Lord may be right about the administrative burdens target. I will have to come back to him on the specific details of what we are doing. I will put them in the Library of the House, which I think is what the noble Lord wants me to do.
Children and Young Persons Bill [HL]
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Consideration of amendments on Report resumed.
Baroness Morris of Bolton moved Amendment No. 7:
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After section 11(1)(m) of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare) insert—
The noble Baroness said: My Lords, the amendment seeks to place a duty on the Border and Immigration Agency to safeguard and promote the welfare of children who pass through its care by amendment of the Children Act 2004. We first championed the issue of children in the immigration and asylum process with cross-party support in 2004. Moreover, during the passage of the UK Borders Bill last year, the Conservative Party, with widespread backing in both Houses and from all parties, again raised this issue and voted on it.
In Grand Committee, the Minister, while appreciating the strength of feeling on the issue, felt bound to point out that we lost the vote. He did not point out that it had been lost by only one vote and by nine votes in 2004. We have therefore brought this important issue back to your Lordships’ House. Once again, it has strong and widespread support, for which we are most grateful.
The Government, on the other hand, are opposed to placing this duty on the Border and Immigration Agency. They have argued consistently that introducing such an obligation will detract from the agency’s primary purpose. However, this argument does not hold water. Many other agencies and bodies have duties to safeguard and promote the welfare of children that are supplementary to their primary function—the police force being the most notable and analogous example. The specific duty of care is not contradictory to the primary function; it simply qualifies the manner in which the primary function is exercised.
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It is not our intention to hinder the Government in the important work on asylum and immigration that they undertake on our behalf. As my noble friend Lady Hanham said during the passage of the UK Borders Bill, this requirement would not prevent the implementation of a removal direction for a child or his or her family. It would at most affect the manner in which the Border and Immigration Agency did that job. This amendment would ensure that these children, whose narrative is starkly different from that of so many other children, do not fall through the cracks but will receive proper care and attention. For anyone who thinks that that is not a problem, I suggest that they read the excellent and disturbing report published in January by Barnardo’s, entitled, Like Any Other Child? Children and Families in the Asylum Process.
I fully acknowledge that the Government have moved considerably on this, with a requirement for the Border and Immigration Agency to have regard to a code of practice to ensure that in the discharge of its functions children are kept safe from harm. The Minister noted in Grand Committee that this would not be a token document. The code of practice has been welcomed by the children’s charities and organisations which do so much amazing work in this area. I appreciate the trouble that the Minister has taken to ensure that
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However, the fact remains that while there is widespread appreciation of the code of practice, the Border and Immigration Agency needs only to have regard to it. The overwhelming view is that a statutory duty is a more appropriate way to ensure that the welfare of these children is promoted and that their interests are safeguarded. This amendment gives a visible sign that these children also matter. I beg to move.
Baroness Walmsley: My Lords, I support Amendment No. 7. In the letter of 25 February from the children’s champion of the BIA, to which the noble Baroness, Lady Morris, referred, Mr Oppenheim referred to the agency,
I am afraid that this phrase, which has been consistently used by the Government when promoting the new code of practice, is taking a negative attitude to the matter of children’s welfare. Protecting a child from harm is not the same as promoting his welfare. If you take the child’s survival without undue harm as being represented by zero on a scale, harm would be -1, -2, -3 et cetera. But actively promoted welfare would put the child up to +1, +2, +3 et cetera. In other words, the child being well, happy and successful, rather than just not suffering harm, is a plus on the scale. I am sure that that is what the noble Baroness, Lady Morris, and all of us in this House want.
I was most concerned to read in a Children’s Society report on 13 February about the shocking plight of some asylum-seeker and refugee families in the West Midlands who are living without heating, electricity or access to food. In one case, a family of six were living in a single room. That is not promoting the welfare of children and it has to stop.
Amendment No. 8 concerns a population of children which somewhat overlaps the population about which the noble Baroness, Lady Morris, has just spoken. These are unaccompanied children who are seeking asylum or who have been identified as having been the victims of trafficking. The amendment seeks to ensure that they have a guardian, who is preferably appointed by an independent body. Since we debated this amendment in Grand Committee the Children’s Commissioner for England has carried out an investigation into how such children are treated in the London Borough of Hillingdon, the borough nearest to Heathrow, which therefore carries an enormous burden in this respect. As part of this report, issues about the lack of resources provided to the borough by the Government were uncovered, as were a number of issues about the understanding of the powers of the commissioner. However, I do not intend to major on that today, although it would be an important subject for a debate at another time.
What I would like to point out is that the commissioner’s conclusion was that these children should have a guardian appointed for them, preferably by an
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“The views of the children and the file reviews of this group of children once again indicate the pressing need for children to have guardians. These guardians should remain in regular contact with the child throughout their application for asylum and until a final determination is made”.
I would stress that this person should not only assist the child to get through the legal system and make sure that he understands what is going on—now that children under the age of 12 are being interviewed, that is all the more important—but ensure that the child’s welfare in all matters is undertaken properly.
In our debate in Grand Committee the Minister misunderstood me in a reference I made to CAFCASS. He may have thought that I had claimed that unaccompanied children have no access to CAFCASS if their case should come before the family courts. Of course I accept that they do, but I was actually making the point that unaccompanied asylum-seeking children have no access to an equivalent source of help when their case comes before the Asylum and Immigration Tribunal. The Government have repeatedly pointed to the Refugee Council children’s panel as a solution to this problem. I can tell the Minister that the council does not have adequate resources to meet all these needs. I quote Liz Barratt, a solicitor at Bindman and Partners, who says:
“The panel simply does not have the resources to allocate an individual adviser to each unaccompanied or separated child referred to it, and therefore it is not true to say that it provides those children with representation. It cannot even allocate an adviser to all such children under 15 as it used to ... I think they are overwhelmed”.
These are the most vulnerable children and our system is failing them. A guardian would be able to help, and I do hope that the Government will think again.
The Lord Bishop of Portsmouth: My Lords, before I support these amendments, I should apologise for my remarks earlier. They referred not to Amendment No. 3, but Amendment No. 22. I am reminded of the late comedian Eric Morecambe, who when challenged on how he played Grieg’s piano concerto, replied, “I play the right notes, but in the wrong order”.
It is impossible to reconcile the Government’s assertion that every child matters with their continued refusal to include the Border and Immigration Agency within the scope of Section 11. This is not an absolute duty; it simply requires agencies to “make arrangements” and to,
- “have regard to the need to safeguard children and promote their welfare in the discharge of their functions”.
In our view, to deny refugee children this protection, which is afforded to all other children in the United Kingdom, is nothing short of discrimination.
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The need for the Border and Immigration Agency to place a greater emphasis on welfare concerns was brought sharply into focus by a recent research report published by the Children’s Society entitled Living on the Edge of Despair. The research found evidence of children growing up in destitution as a result of government asylum policy. Children were found to be routinely going without food, heating or toys. Mothers were forced to prostitute themselves in order to survive. Young people in care had become homeless after being cut off from any help at 18, and pregnant women could not afford to eat. Regardless of their legal status, these children are entitled to better childhoods and we have a duty to protect and support them as we do all other children in the UK. If the mind of the House is to be tested, I hope very much that this and the first amendment are passed.
Baroness Butler-Sloss: My Lords, in supporting Amendments Nos. 7 and 8, I declare an interest as vice-chairman of the All-Party Group on the Trafficking of Women and Children, and would remind the Minister, although no doubt he knows this, that some time later this year the convention on trafficked women and children will become part of English domestic law. Article 10.4 requires the United Kingdom, along with other countries which have signed the convention on trafficking, to provide a guardian, legal organisation or agency. I have not got the words entirely right but, I confess, I could not find in a hurry the convention. So there is an obligation on the Government to put into law—I would assume in primary legislation—the word “guardian” for trafficked children.
Consequently it will not be long—because some asylum children are trafficked and some very often have human rights claims—before, at the very least, trafficked children have a person, whether it be a guardian or someone from a legal organisation or agency, when the convention on trafficking becomes part of domestic law. It seems extraordinarily appropriate that it should be ahead of the game by becoming part of children law at this stage.
However, currently the word “guardian” has a special meaning in English family law. It means a guardian appointed by the court. There have been various guardianship laws in the past; for example, the Guardianship of Minors Act and the Guardianship (Refugee Children) Act, and the Children Act 1989 provides for guardians appointed by the court. I cannot believe that the noble Baronesses, Lady Morris of Bolton and Lady Walmsley, expect the court to appoint a guardian. Consequently, I respectfully suggest that it will be necessary either for another word to be used, or the word” guardian” is used with an explanation that this is not a guardian appointed by the court but a guardian appointed as an independent person—independent, certainly, of the Border and Immigration Agency and, I hope, of social services, which are overwhelmed, particularly in areas such as Croydon and Hillingdon—to carry out what the European convention will require us to carry out by the end of the year.
I know the Government are looking at how to implement the trafficking convention and it would be
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Lord Elystan-Morgan: My Lords, I, too, support the responsible and humane principles which underlie the two amendments the House is considering. I support specifically everything that has been said so authoritatively by the noble and learned Baroness, Lady Butler-Sloss, who speaks with immense authority as a former president of the Family Division.
The concept of guardianship in English law, as the noble and learned Baroness so clearly said, is a very special one. It means that guardianship is in the gift of the court. A guardian is an appointee of the court who has a special responsibility towards it. Therefore, while I well appreciate the indication of the noble Baroness, Lady Walmsley, it was never the intention of the drafters of the amendment that it should be a guardianship of that nature.
However, it is important to realise that the European concept of guardianship is somewhat different from our own. In Europe they see guardianship as much on the same par as a person who is an adviser or a helper of the child. Goodness knows there is every need for such a role, but it is not the role of a guardian. In the light of the noble and learned Baroness’s remarks, the question that I humbly and respectfully raise is whether it is necessary to use the term “guardian”. It is important that the officer fulfilling the role is appointed by an independent body and that his remit and responsibilities are clearly set out in statute. Once you have done that, you have answered the problem to a large extent and you have brought English law, in an anticipatory way, into line with the convention even before it has come into force.
4.30 pm
Lord Judd: My Lords, I apologise that I was not here for a moment or two at the beginning of this debate. I welcome the amendment moved by the noble Baroness, Lady Morris of Bolton. I have discovered in conversations with her that there can be no question of her posturing or playing politics with this sensitive issue. I know that she is deeply committed to what lies behind the amendment and I congratulate her. It is in keeping with something that I believe can be a legitimate feather in the cap of the Opposition: the part that they played in the United Nations Convention on the Rights of the Child and the pride that they took in their part in it. There is an element of consistency there that the House should recognise.
I have one point to make. If we are serious about our commitment to that convention, as I hope we all are, we have an unavoidable obligation to promote the well-being of, not just safeguard, the child. I simply cannot think of a more difficult experience for a child than the circumstances in which they meet the authorities responsible for immigration. We can argue about how they come to be there and the legitimacy of their being there, but it is a time of extreme
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This is a matter of not leaving it to other agencies but ensuring that the priority and the resources are there for those in the front line of immigration policy to have our obligations under the convention high in their responsibilities. It is no good simply saying that we are committed to the convention and then, when there is a really traumatic moment in the life of the child, saying, “Oh, well, someone else is responsible at this particular time for promoting their interest; all we’re concerned about here is a minimal function of safeguarding the interests of the child”. That is the time when it really matters.
I suspect that the noble Baroness might have been counselled that she ought to be a bit careful with this amendment because it had quite challenging implications for immigration policy. I would like to place on record my admiration for the fact that, if she did come under such pressure, she withstood it and said, “No, I want to stand by the promotion of the interests of the child at this critical time”. If she has done that, it behoves us all to respond positively to what she has said.
Lord Ramsbotham: My Lords, I, too, apologise to the House for not being present when the noble Baroness began to speak to her amendment. I repeat a point that I made in Grand Committee about consistency. The noble Baroness, Lady Walmsley, has mentioned the problems faced by boroughs near Heathrow, such as Hillingdon. One of the effects of having so many of these unaccompanied minors is that they have been spread all over the United Kingdom to share the burden between social services around the country, but that means that there is a terrible inconsistency in the way in which they have been treated. One of the good effects of such an amendment, containing some form of statutory duty, would be to ensure some consistency in their treatment, which I suspect would be very welcome not just to the children but to the social services authorities, some of which may not appreciate fully what these children require.
Lord Adonis: My Lords, perhaps I may start with Amendment No. 7. As the noble Baroness, Lady Morris, said, this issue has been debated by the House several times. The House therefore knows that the Border and Immigration Agency is committed to meeting fully its obligations to children within the immigration context and to working both on its own and with others to keep children safe from harm.
The Border and Immigration Agency appointed Jeremy Oppenheim, formerly director of social services in Hackney, as children’s champion in spring 2006. In response to debates in this House last year, Section 21 of the UK Borders Act provides for the Secretary of State to issue a code of practice to ensure that, in exercising its functions in the United Kingdom, the Border and Immigration Agency takes all appropriate steps to keep children safe from harm. The Act also creates a requirement for the agency to follow the code of practice.
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The proposed code of practice, Keeping Children Safe from Harm, which I have circulated to noble Lords who have taken a keen interest in this issue, was published on 31 January. Public consultation on it has begun. I stress that the code will apply not only to Border and Immigration Agency staff, but also, in response to the debate on the UK Borders Bill last year, to its contractors when they exercise immigration agency functions and are in contact with children who are in the United Kingdom. It will apply whether that contact is in person or indirect—for instance, making a decision on papers that has an impact on a child.
The issue before us, therefore, is not whether we are committed to safeguarding children in the immigration and asylum system—the BIA is fully committed to that task—but the best means of doing so. Amendment No. 7 would extend the duty in Section 11 of the Children Act 2004 to the Border and Immigration Agency. In so far as the purpose of Section 11 is to ensure that children are kept safe from harm and are properly protected, the BIA takes its responsibilities seriously; hence the proposed code of practice and the machinery to enforce it. However, our concern is that applying the general terms of Section 11 to the BIA would have a side effect highly detrimental to the public interest; namely, that it would give a further legal basis for litigation to prevent the implementation of immigration decisions over and above the extensive litigation that already takes place in this area. This aspect marks out the BIA from the other agencies mentioned by the noble Baroness, Lady Morris. I reiterate that the code of practice will bring the benefits that would arise from extending the Section 11 duty in respect of child protection while avoiding the serious risk of an increase in legal challenges to removal decisions.
In developing the code, we have worked with important groups such as the Association of Directors of Children’s Services, the Children’s Commissioner, officials in the devolved Administrations, the Children’s Society and Barnardo’s. The BIA is also consulting widely on the content of the code and is actively seeking the views of NGOs and professionals with experience in children and their welfare.
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