Guardians for children with special protection needs
‘(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 human rights claim or is identified as a victim of trafficking, a local authority must ensure that a legal guardian is appointed to represent that child.
(2) The following expressions have the same meaning in this section as they have in Part 5 of the Nationality, Immigration and Asylum Act 2002 (c.41)—
(a) “asylum claim”;
(b) “human rights claim”.
(3) “Trafficking” means the arrangement or facilitation of the arrival in, entry to, 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) (trafficking people for exploitation).’.—[Annette Brooke.]
I beg to move, That the clause be read a Second time.
This new clause is very much intended to be probing, although the principle was discussed in the other place. I wish to ascertain the Government’s position on a statutory system of guardianship for all separated children who are subject to immigration control in England and Wales. I want to ensure that the welfare needs of those children are properly safeguarded within the context of the asylum determination process and that their support and care needs are met by all agencies charged with those functions.
Each year, 3,000 children who are separated from both parents and are not being cared for by an adult who by law or custom has responsibility to do so come to the UK and claim asylum. I have a feeling that I might have put the same arguments forward during the passage of the Children Act 2004, as they seem remarkably familiar and there is a sense of dÃ(c)jÃ vu. We also proposed at that time that the Border and Immigration Agency should come under section 11, so I think that it is worth carrying on putting the points forward.
The Bill presents an opportunity to strengthen the protection for children in the care of the state and cover asylum-seeking children and trafficked children, which is a matter of great concern. The new clause does not seek to establish any detailed mechanics on how a system of guardianship would operate, but it is important to recognise that there is no systematic provision of independent oversight on matters involving separated children who are subject to immigration control. Children can go unrepresented in their asylum application and might be placed in inappropriate accommodation with inadequate support. Indeed, they might not understand the implications of their asylum application. In the current system, separated children seeking asylum, some as young as eight years old, have to instruct their own solicitors, yet these children might not be competent to instruct a legal representative. Although there is provision through CAFCASS, which I appreciate, we still need guardianship.
Indeed, my noble friend Baroness Walmsley raised the issue, but I think that the Minister misunderstood what she was saying. Obviously we accept that CAFCASS can be helpful for a small number of non-citizen children going through the family court system, however, there is a gap in provision. A very low number of children is granted asylum. The majority are granted discretionary leave, which means that they need greater protection during the time that they are here, certainly to comply with the European convention on human rights.
We still have the reservation to article 22 of the UN convention on the rights of the child. I was heartened earlier this year when the Minister addressing that issue said that it was being looked at. I am not sure whether we have any information on that matter. I want particularly emphasise trafficked children. Lord Adonis commented in the other place that the Government are considering the changes needed to comply with article 10 of the Council of Europe convention on action against trafficking in human beings, which states that every unaccompanied child identified as a victim will be provided with representation
“by a legal guardian, organisation or authority which shall act in the best interests of that child”.
I would like some more details about that because it is so important. There is cross-party concern for trafficked children.
It is also important to note that the 10th report of the Joint Committee on Human Rights, published March 2007, expressed concern that asylum-seeking children were not getting as much protection as other children. The report recommends
“that a formal system of guardianship should be established for separated children subject to immigration control, including separated asylum seeking children. The guardian would have a statutory role and would be appointed by a statutory body to safeguard the best interests of the child and provide a link between all those providing services and support. The guardian should be expected to intervene if public bodies act in contravention of their legal duties towards a child”
There is a great opportunity to protect further the rights of separated children subject to immigration control. I hope that the Minister will consider favourably something that has been asked for on many occasions. I know the concerns about control of asylum and immigration, but we are talking about children. I believe that child in this country have the same rights to protection as citizens do.
I agree with the hon. Lady that the issue concerns everybody, particularly when we are talking about children who are not only separated from their families but may have been trafficked. I shall say at the outset that the matter was considered in detail in 2004 when we implemented the European Union reception conditions directive, which called for minimum standards on the reception of asylum seekers, including children. Article 19 requires states
“to ensure the necessary representation of unaccompanied” asylum-seeking child by legal guardians or
“representation by an organisation which is responsible for their care and well-being”
We took the view then, and it is still our view, that the care and support that children receive from local authorities, under the same statutory arrangements as other children in need, mean that the UK is fully compliant with that directive. Therefore, we do not believe that a system of statutory guardianship is necessary, or indeed desirable, to achieve that goal. However, I agree with the hon. Lady that services for unaccompanied asylum-seeking children, particularly those who have been trafficked, need to be improved. The provisions of the Bill, alongside some other measures that I will touch on briefly, will deliver some of the necessary improvements that she seeks.
First, it is important to make the point, in relation to the hon. Lady’s concluding remarks, that we are discussing children. All children should have the same rights under the law. I agree with her. Children’s legislation makes no distinction between children who are separated, unaccompanied asylum-seeking children or other children. The duties under the Children Act 2004 depend simply on the levels of assessed need. They are not affected at all by immigration status or other factors of that nature. As she will know, last year the courts made it absolutely clear in a robust judgment that it is not acceptable for local authorities to make any distinction in service provision on any basis other than assessed need. That was in relation to a case involving unaccompanied asylum-seeking children.
Secondly, the reforms in the Bill and the wider “Care Matters” programme will challenge local authorities to improve their practice. That will benefit unaccompanied asylum-seeking and trafficked children who have grown up in this country. I recognise that the experiences of these children will be distinct in some important respects and that they will require more specialised services and care than the generality of looked-after children.
For that reason, the UK Border Agency has proposed that children should be placed not right across the country, but with a limited number of specialist local authorities so that we can be sure that they receive that specialist level of care and expertise. The training of IROs and social workers in those authorities can be given in relation to the dimensions that the separated and immigration statuses give such children. We will therefore develop some specialist areas of expertise. That fits in with the reforms of the UK Border Agency set out in “Better outcomes: the way forward”, which was about improving the care of unaccompanied asylum-seeking children and was published in January this year. It also fits in with the code of practice, “Keeping children safe from harm”. I think that that is the way to ensure that the special needs of such children are dealt with in practice.
We will also update the statutory guidance to recognise and deal with the particular needs of this group. In revising the Children Act guidance for local authorities, we will reflect the significant increase in the number of these children in the care system since the guidance was originally written in the early 1990s. There will be a real focus on this group in that guidance.
On the other hand, I hope that the hon. Lady accepts that it is not clear what benefits there would be from an extra system of guardianship. This matter reflects the debate on advocates for every child. The reality for most of these children is that they already encounter a long list of individuals, many of them charged in one way or another with representing them, such as their solicitor. They are all referred to the Refugee Council children’s panel, which provides advice and assistance. They have their local authority social worker and the enhanced role of the IRO will apply to them, which we have discussed in this Committee. As I have said, if they are located in specialist authorities where the IRO is given special training in the circumstances and needs of such young people, they will get a better service.
We have had this argument before. I do not think that the legislation needs to be adjusted. I accept that we need to adjust practice and we must spotlight the needs of these children and train people to be better in meeting their needs and recognising the issues that come with their immigration status. However, that is a matter for practice and not for legislation in the Bill. I hope that the hon. Lady accepts that the measures I have outlined will meet her aspirations sufficiently and will therefore withdraw the motion.
I thank the Minister for her comprehensive reply. I am still unconvinced, but sometimes one has to beg to differ. I will not press the matter to a vote, but this is an issue that I will continue to raise because I think that we need to go a lot further. I seem to recollect that when the Green Paper was first published, as the Minister will acknowledge, it made little mention of asylum seekers, which always gives the impression that we do not give enough attention to them. We have come quite a way since then but we have not yet reached the best position. I will continue to push for this outside Committee, but I beg to ask leave to withdraw the motion.