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The requirements of the code could not be clearer or more robust. Perhaps I may quote from page 7, which states that,
- “the staff of the Agency must act in accordance with the following key requirement: that due consideration be given to the wishes and feelings of the child, parents, or any person with parental responsibility for the child, or whose views in caring for the child would normally be considered relevant. Partnership with the parents and consultation with the child should be the norm whenever a family are being required to comply with the immigration laws”.
- “the Code recognises that the Border and Immigration Agency will keep children safe from harm by acting on our concerns about the safety of any child which, in the course of our dealings, appears to be at risk and referring to outside statutory and professional agencies where appropriate. This referral to outside agencies where aspects of protection are involved is an important part of the Border and Immigration Agency’s approach”.
The code is not a document without teeth. There are new, strong training and inspection arrangements to back it up. On inspection, Section 48 of the UK
17 Mar 2008 : Column 37
Lord Judd: My Lords, I am grateful to my noble friend, who is replying as fully as he always does. Would he please appreciate that those of us who are behind the amendment are specifically concerned with his concentration on safeguarding children? Our argument is that there should be a statutory responsibility at this critical time to promote the well-being of the child, which is not the same thing. That is our commitment under the convention—here is the child in the middle of a crisis or trauma, so how do we start building for its future, not just safeguarding it from harm?
Lord Adonis: My Lords, I believe that the paragraphs of the code that I read out make clear the agency’s responsibilities in ensuring that children are kept safe from harm. They could not have been spelt out more clearly. We do not believe that it is desirable to extend the 2004 Act because of the issues of more extensive litigation that will follow.
Lord Elystan-Morgan: My Lords, I in no way impugn the Minister’s sincerity and sensitivity in this matter, but he said that if the amendments are accepted there is a danger that litigation will follow. Is he suggesting that at present the rights in the document from which he quoted cannot be enforced in the courts of our land? If these rights can be enforced, the amendments would make little difference. If they cannot, they are surely needed.
Lord Adonis: My Lords, the rights in the code of practice have a statutory effect; it is statutory guidance to which all officers of the agency must have regard. The noble Lord will know that that places a strong legal requirement on them. For all those reasons, we believe that the code and the means in place to implement it meet the legitimate concerns underlying this amendment. We hope that the House will not impede the legitimate workings of the immigration system, which is an issue of real public concern, by supporting the amendment.
On Amendment No. 8, we recognise that services for unaccompanied asylum-seeking children, including children who have been trafficked, need to be improved. Some of the necessary changes that need to be made are described in Care Matters, which applies to all children, irrespective of their immigration status, as do the Bill’s provisions.
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However, as the noble Lord, Lord Elystan-Morgan, said, in respect of the concept of guardianship it is the substance of the role that matters, not the name. The reality for most unaccompanied asylum-seeking children is that they already have a long list of individuals who directly and specifically are concerned with their welfare. These typically include not only the Border and Immigration Agency asylum case owner, who will deal with their immigration affairs from start to finish, but, independent of the BIA, the solicitor who assists with their asylum application, representatives from the British Refugee Council’s children’s panel, who provide advice and assistance, their local authority-appointed social worker, the independent reviewing officer, who chairs their reviews, and, in many cases, a personal adviser. Many, especially the younger cohort, will also have their foster parents to turn to for help. We do not believe that it would serve their interests to add yet another level of complexity and duplication to a system that already ensures that there are a significant number of professional and concerned individuals whose roles, and in some cases statutory functions, include supporting the child—so many professionals that it could well cause confusion for children if things are not effectively co-ordinated.
4.45 pm
It may be helpful if I set out some of the practical arrangements for unaccompanied asylum-seeking children, particularly how they access legal representation for the purposes of their asylum claim, as I am aware that this is an area of concern. All unaccompanied minors who apply for asylum are referred to the Refugee Council children’s panel within 24 hours of the claim being lodged. The children’s panel is a non-statutory body, but it is funded by the Border and Immigration Agency. The panel does not represent the children in their dealings with the agency but provides appropriate guidance and signposts them to the appropriate services that they need. In practical terms, this normally means arranging for the local authority to look after them appropriately and referring them to a solicitor if they do not already have one.
The funding of legal services for unaccompanied asylum-seeking children is provided by the Legal Services Commission. Legal aid is made available for solicitors to accompany the child to the first interview with the BIA, known as the “screening event”, as well as the later interview, at which the child is interviewed about the substance of their asylum claim. Following recent changes, all unaccompanied asylum-seeking children aged 12 and above are now interviewed. The interview is conducted by specially trained immigration officials and must take place in the presence of a responsible adult.
In previous debates, mention has been made of the difficulty that children have in giving clear instructions to solicitors. Obtaining relevant information from children can, of course, present difficulties, but it is the responsibility of solicitors who have a recognised specialism in asylum and immigration practice to ensure that relevant information is obtained to represent their client effectively. This is why children are interviewed by
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The noble and learned Baroness, Lady Butler-Sloss, made an important point about the Council of Europe Convention on Action against Trafficking in Human Beings. As she rightly said, Article 10.4 of the convention calls for the representation of a trafficked child by—these were the words that she sought to give the House—
as soon as a child victim is identified or there are reasonable grounds to believe that the child is a victim. We believe that the convention obligations are met by existing officers acting on behalf of the child in question, as I set out, and that the convention allows member states options other than legal guardians to meet the requirements of Article 10.4. For all these reasons, I hope that the House will not support these two amendments.
Baroness Morris of Bolton: My Lords, I am most grateful, as always, to the Minister for his courteous and detailed reply. I thank all noble Lords who added their names to the amendment and all who spoke so eloquently. I thank the noble Lord, Lord Judd, for his kind words.
The noble Baroness, Lady Walmsley, is not allowed to reply at Report but, following this debate, particularly given the comments of the noble and learned Baroness, Lady Butler-Sloss, she may well wish to consult on the measure and perhaps bring it back at Third Reading.
As regards the now familiar argument used by the Government, I say only that the Refugee Children’s Consortium has taken legal advice which suggests that Section 11 of the Children Act 2004 would not prevent the Home Secretary from implementing the removal directions for a child or for his or her family and would at most affect the manner in which the removal occurred. As I said, the code is welcome, but the BIA needs only to have regard to it. We think that this needs to be stronger.
We heard today from the noble Baroness, Lady Walmsley, and the right reverend Prelate the Bishop of Portsmouth of the horrors faced by these children. Many of them, as the noble and learned Baroness, Lady Butler-Sloss, said, are trafficked. They are the very children whom we are seeking to champion. Wherever these children may originally have come from, and wherever they may go, they are first and foremost children and while they are in our country they should be afforded the rights of every child.
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In Grand Committee, the noble Baroness, Lady Kennedy of The Shaws, said:
“When the Children Bill was going through this House ... I remember thinking what wonderful legislation it was and how content I was that here was something on which I could agree with my Government ... Then, one evening, I came into the House and took my place on my Government’s Benches. I was shocked to hear an amendment being moved by the Minister that would keep out of the great advances being included in the legislation the children of immigrants. Child asylum seekers would not have the protection that the Children Bill would provide to others”.—[Official Report, 14/1/08; col. GC 433.]
We now have an opportunity to right a wrong. I wish to test the opinion of the House.
4.51 pm
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 173; Not-Contents, 119.
Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Blackwell, L.
Blaker, L.
Bledisloe, V.
Boothroyd, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Butler-Sloss, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Chidgey, L.
Chorley, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Craigavon, V.
Crathorne, L.
Crisp, L.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
D'Souza, B.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elystan-Morgan, L.
Erroll, E.
Falkland, V.
Fearn, L.
Ferrers, E.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Fowler, L.
Freeman, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Giddens, L.
Glasgow, E.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Greengross, B.
Hameed, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Henley, L.
Hooper, B.
Howarth of Breckland, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
James of Blackheath, L.
Jay of Ewelme, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Judd, L.
Kerr of Kinlochard, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Listowel, E.
Liverpool, E.
Livsey of Talgarth, L.
Low of Dalston, L.
Lucas, L.
Ludford, B.
Luke, L.
Lyell, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Mar, C.
Marlesford, L.
17 Mar 2008 : Column 41
Masham of Ilton, B.
Massey of Darwen, B.
Mawson, L.
Mayhew of Twysden, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Montrose, D.
Morgan, L.
Morris of Bolton, B.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Newton of Braintree, L.
Northbourne, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Onslow, E.
Palmer, L.
Patel, L.
Portsmouth, Bp.
Prys-Davies, L.
Ramsbotham, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Rotherwick, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Southwark, Bp.
Steel of Aikwood, L.
Steinberg, L.
Stern, B.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trimble, L.
Turner of Camden, B.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Walmsley, B.
Walpole, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Young of Hornsey, B.
Adams of Craigielea, B.
Adonis, L.
Amos, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Bilston, L.
Blood, B.
Borrie, L.
Bradley, L.
Bragg, L.
Brookman, L.
Brooks of Tremorfa, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B. [Teller]
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Falconer of Thoroton, L.
Falkender, B.
Farrington of Ribbleton, B.
Fyfe of Fairfield, L.
Gale, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Griffiths of Burry Port, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
King of West Bromwich, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
17 Mar 2008 : Column 42
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mitchell, L.
Moonie, L.
Morris of Aberavon, L.
Morris of Manchester, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Plant of Highfield, L.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Richard, L.
Rooker, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sewel, L.
Simon, V.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thomas of Macclesfield, L.
Thornton, B.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Uddin, B.
Vadera, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Resolved in the affirmative, and amendment agreed to accordingly.
5.03 pm
Baroness Walmsley moved Amendment No. 8:
(1) As soon as a child under 18 who is separated from both his parents and is not being cared for by an adult who by law or custom has responsibility to do so makes an asylum claim or a human rights claim or is identified as a victim of trafficking, a guardian shall be appointed to represent that child.
(2) The following expressions have the same meaning in this section as section 113 of the Nationality, Immigration and Asylum Act 2002 (c. 41)—
(3) “Trafficking” means the arrangement or facilitation of the arrival in, entry into, travel within, or departure from the United Kingdom for the purposes of exploitation as defined in section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19).”
The Deputy Speaker (Lord Haskel): My Lords, the amendment was grouped with Amendment No. 7. The Question is that the amendment be agreed to.
Baroness Walmsley: My Lords, I beg leave to withdraw the amendment.
The Deputy Speaker: My Lords, is it your Lordships’ pleasure that the amendment be withdrawn?
Earl Ferrers: My Lords, I think that the Question has been put, has it not? How can you withdraw the amendment after the Question has been put?
The Deputy Speaker: My Lords, I asked if it was your Lordships’ pleasure that it be withdrawn.
Amendment, by leave, withdrawn.
17 Mar 2008 : Column 43
Clause 7 [Support for children placed with family or friends]:
Lord Northbourne moved Amendment No. 9:
“( ) In fulfilling his obligations under subsection (1) of this section the Secretary of State shall have regard to children’s need for supportive parenting.”
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 11 and 39. I welcome the government amendment that was introduced in Committee giving the Secretary of State a duty to promote the well-being of children in care. My amendment specifies that, as part of his general duty to promote the well-being of children in his care, the Secretary of State should also be concerned to ensure that, so far as possible, those children enjoy supportive parenting.
I believe that having a reference in the Bill solely to the well-being of the child is not enough because the meaning of “well-being” in the context of children is not absolutely clear. For example, the guidance that the Government provide for the Human Fertilisation and Embryology Authority seems to suggest that, in considering a parent’s suitability for IVF treatment, the welfare of the child who may be born as a result of that treatment can be adequately provided for if it can be shown that the child is not likely to be exposed to serious harm. In the previous debate, the noble Lord, Lord Judd, referred to the difference between promoting the welfare of the child and just safeguarding the child from serious harm. It seems to me that there is a gradation of meanings in the phrase “the well-being of the child”, going from “promoting welfare” through “best interests” down to “safety from harm” and, finally, to “safety from serious harm”. In my view, “safety from serious harm” is not an adequate definition of the welfare needs of the child, especially for a child in care. On this, the Government seem to agree with me because they have introduced into the Human Fertilisation and Embryology Bill the phrase “supportive parenting” to fill the gap to indicate the level and kind of care that every child needs and is entitled to. If every child born by IVF is entitled to well-being and supportive parenting, surely a child looked after by the state should also be entitled to those things.
In Amendment No. 11, I suggest the same general definition of the phrase “supportive parenting” as the one that the Government agreed to put in guidance in the Human Fertilisation and Embryology Bill. Incidentally, the wording is taken from the Children (Scotland) Act 1995. It may well be that this definition should also be in guidance rather than in the Bill, and I should be glad to hear what the noble Lord feels about that.
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