New Clause 43 - Independent Child Trafficking Guardians

Nationality and Borders Bill – in a Public Bill Committee at 3:00 pm on 4th November 2021.

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‘(1) The Modern Slavery Act 2015 is amended as follows.

(2) For section 48 substitute—

“48 Independent Child Trafficking Guardians

(1) The Secretary of State must make arrangements to enable persons (“independent guardians”) to be available to represent and support children to whom this section applies.

(2) This section applies to a child if—

(a) a reference relating to that child has been, or is about to be, made to a competent authority for a determination for the purposes of Article 10 of the Trafficking Convention as to whether there are reasonable grounds to believe that the child is a victim of modern slavery or human trafficking; and

(b) there has not been a conclusive determination that the child is not such a victim; and for the purposes of this subsection a determination which has been challenged by way of proceedings for judicial review shall not be treated as conclusive until those proceedings are finally determined.

(3) This section also applies to a child who appears to the Secretary of State to be a separated child.

(4) The independent guardians’ appointment shall continue to be provided to a child as determined in this section until the age of 25 to the extent their welfare and best interests require such an appointment.

(5) In making arrangements under subsection (1) the Secretary of State must have regard to the principle that a child should be represented and supported by someone who is independent of any of any public authority (as defined in section 6 the Human Rights Act 1998) other than a court or tribunal.

(6) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(7) A person appointed as an independent guardian for a child must promote the child‘s well-being and act in the child‘s best interests.”

(3) After section 48 insert—

“48A Independent Child Trafficking Guardians: functions

(1) This section defines the functions and duties of person appointed as an independent guardian under section 48.

(2) The functions of an independent guardian shall be to—

(a) ascertain and communicate the views of the child in relation to matters affecting the child;

(b) consult regularly with the child and keeping the child informed of legal and other proceedings affecting the child and any other matters affecting the child;

(c) contribute to a plan to safeguard and promote the future welfare of the child based on an individual assessment of that child’s best interests.

(3) In the discharge of their functions, the independent guardian must at all times act in the best interests of the child.

(4) The advocate will assist the child to obtain legal or other advice, assistance and representation, including by appointing and instructing legal representatives to act on the child‘s behalf.

(5) The Secretary of State must make regulations about independent child trafficking advocates, and the regulations must in particular make provision—

(a) about the circumstances in which, and any conditions subject to which, a person may act as an independent guardian;

(b) for the appointment of a person as an independent guardian to be subject to approval in accordance with the regulations;

(c) requiring an independent guardian to be appointed for a child as soon as reasonably practicable;

(d) about the functions of independent guardians;

(e) requiring public authorities which provide services or take decisions in relation to a child for whom an independent guardian has been appointed to—

(i) recognise, and pay due regard to, the guardian’s functions, and

(ii) provide the guardian with access to such information relating to the child as will enable the advocate to carry out those functions effectively (so far as the authority may do so without contravening a restriction on disclosure of the information).

(6) Before issuing regulations under this section, the Secretary of State must lay a draft of the regulations before Parliament.

(7) The Secretary of State shall not launch the regulations unless the draft has been approved by a resolution of each House.

(8) Whenever any other provision of the regulations is altered, the Secretary of State shall lay a statement of the altered provision before Parliament.

(9) If any statement laid before either House of Parliament under subsection (8) is disapproved by a resolution of that House passed before the end of the period of 40 days beginning with the date on which the statement was laid, the Secretary of State shall—

(a) make such alterations in the regulations as appear to be required in the circumstances; and

(b) before the end of the period of 40 days beginning with the date on which the resolution was made, lay a statement of those alterations before Parliament.

(10) For the purposes of this Act—

“separated child” means a child who—

(a) is not ordinarily resident in England and Wales; and

(b) is separated from all persons who—

(i) have parental responsibility for the child; or

(ii) before the child’s arrival in England and Wales, were responsible for the child whether by law or custom.”’—(Holly Lynch.)

This new clause seeks to incorporate an entitlement to independent guardians for separated and trafficked children and set out their functions.

Brought up, and read the First time.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss new clause 44—Independent Child Trafficking Guardians: inspection—

‘(1) The Education and Inspections Act 2006 is amended as follows.

(2) After Clause 145 insert—

“145A Inspection of independent guardians’ performance

(1) The Chief Inspector must inspect the performance of independent guardians.

(2) On completing an inspection under this section, the Chief Inspector must make a written report on it.

(3) The Chief Inspector must send copies of the report to—

(a) the Secretary of State, and

(b) Independent Guardians.

(4) The Chief Inspector must arrange for the report to be published in such manner as he considers appropriate.

(5) In this section, “independent guardians” means those appointed under section 48 of the Modern Slavery Act 2015.”’

This new clause sets out the duty for OFSTED to inspect the performance of independent guardians.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

Before I start, I draw hon. Members’ attention to the Red Box article written by the Independent Anti-Slavery Commissioner, Dame Sara Thornton, and published in The Times today. Entitled “Rushed borders bill will fail victims of modern slavery”, it is damning. Against that backdrop, I will have another go at mitigating the worst elements of part 4 with new clause 43. I start by paying tribute to ECPAT UK and the Children’s Society, which have shared their insight and invaluable expertise in helping us to shape these new clauses.

New clause 43 would amend section 48 of the Modern Slavery Act 2015, to ensure that an independent guardian was provided for all child victims of trafficking and separated children. For clarity, I point out that when I refer to “separated children”, I am referring to migrant children who are unaccompanied. The independent guardian would be a central part of a child’s life, acting as a connection to all the support services that they required, having the ability to instruct solicitors on their behalf and representing their best interests throughout. These guardians would be experts on trafficking and modern slavery, whose purpose was to safeguard and improve the wellbeing of trafficked children, as well as ensuring that statutory services could function more effectively, securing a route both to recovery and to prosecution of those ultimately responsible for their abuse. As specified in the functions laid out in the new clause, an independent guardian would ensure that the child was informed of any relevant legal proceedings, clearly communicate the views of the child and promote the future welfare of the child based on what was in the child’s best interest.

I have cited the numbers previously, but I will remind the Committee. In 2020, 47% of referrals to the national referral mechanism were children, and of the referrals for UK-based exploitation only, 57% were children. It was the case that 51% of the referrals of children were for child criminal exploitation. According to the National Crime Agency, the increase in referrals to the NRM of British children has been driven largely by so-called county lines criminality.

A great deal of the provision in new clause 43 should already be happening and be provided for between international laws, including the UN convention on the rights of the child, the EU trafficking directive of 2011 and the Council of Europe convention on action against trafficking in human beings, as well as domestic provisions. However, the measure has been only partially adopted across the UK. The Children’s Society has supported calls for it to be enshrined in statute, stating that a guardian’s role should be independent from the state, have legal authority and have adequate legal powers to represent the child’s best interests, as well as being respected by an existing regulatory body.

As the Independent Anti-Slavery Commissioner highlighted in her annual report for 2020-21, despite clear evidence of good practice she remains extremely disappointed that six years on from the Modern Slavery Act 2015 the independent child trafficking guardian service is not yet a national provision.

There has been very much a staggered approach to roll-out, with the service still not in operation across around a third of all local authorities, several years after it was adopted in three early adopter areas in Greater Manchester, Hampshire and the Isle of Wight. That shows a real lack of urgency on the Government’s part and we echo the statement by the anti-slavery commissioner that

“access to this specialist support for children should not be a postcode lottery”.

In the year ending June 2021, the UK received 2,756 applications for asylum from unaccompanied children. The majority of unaccompanied children are cared for on a voluntary agreement under section 20 of the Children’s Act 1989, rather than under a section 31 care order, whereby the local authority has full parental responsibility for the child.

Although I pay tribute to the dedicated social workers up and down the country, in reality many social workers will not have received training on the asylum and immigration system, and may lack the skills to aid children with their immigration applications. Therefore, the new clause will provide much needed consistency and security for children who have had some of the worst possible starts in life, supporting them towards recovery and through their relationship with the relevant agencies, in the hope that we can secure child victims a degree of restorative justice, which would be a service for both migrants to the UK and UK nationals.

The report conducted by the Home Office evaluating independent child trafficking guardians supported the argument that they provide a sense of stability and continuity:

“Investing time in trafficked children’s lives by a single trusted, well-informed, reliable adult became a distinct early feature of the ways child trafficking guardians stood out from other professions.”

This is demonstrated by one young person who responded to the evaluation. Speaking about their guardian, they said:

“She is so amazing... I don’t know if they’re all like that, but for me it was different, because I told her things that I haven’t told my social worker and that was beneficial. I think that’s because of her personality...she seems really open, I can talk to her about anything.”

Police offers working to combat exploitation and help young people told me recently that they were becoming aware that the drive to keep young people out of police cells for all the right reasons had led to instances where children were arrested in possession of, say, drugs and cash. Rightly, the police would have taken those items from the children before they were released, pending further inquiries, but before proper consideration of their circumstances could be made.

Officers identified that children and young people were having to go back to serious criminals to inform them that they no longer had their drugs or cash, without any of the risks to them having been identified and without safeguarding support having been wrapped around them. Thankfully, those officers were working through the best practice alternatives, but those are the types of scenarios where guardians would be able to play an invaluable role.

It is notable that the devolved nations have been far more proactive in this area, with Scotland having made greater progress and Northern Ireland introducing a comprehensive independent guardians model, which provides an individualised service for all separated children. If we are to consider the UK a world-leader in combating modern slavery, I ask the Minister to put into primary legislation what should already be happening, as a means of addressing the gaps in provision, which will help us to do what is right for these children as well as assisting the authorities in identifying and apprehending perpetrators of some of the most heinous crimes.

New clause 44 would ensure that the provision of independent child trafficking advocates is subject to an inspectorate regime. As colleagues may be aware, the measure is currently not subject to an inspection framework, which is applied to other services for children under the Education and Inspections Act 2006. We believe than an inspection framework is necessary to ensure that Ofsted can inspect the quality and effectiveness of the service.

In conclusion, I find it hard to believe that any colleagues do not support the aims and objectives of the new clause, which builds upon the commitments in the Modern Slavery Act 2015. As the campaign group Every Child Protected Against Trafficking UK has highlighted, those who are eligible under new clause 43 may have had to flee their country due to conflict and may have faced exploited en route to the UK. Others may be British children in the care system, who have been let down by the adults around them. There is a breadth of vulnerability here and we believe that the new clauses better acknowledge and cater to all child victims’ physical and psychological needs. I hope that the Minister shares the ambition behind the new clauses and understands the need for all trafficked and separated children to be recognised and supported within primary legislation.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I thank hon. Members for tabling their new clauses. They have raised important issues about the support available for child victims who have faced the most heinous crimes. Independent child trafficking guardians are an independent source of advice and support for potentially trafficked children, irrespective of nationality, and somebody who can advocate on a child’s behalf. Provision for the independent child trafficking guardian already exists in section 48 of the Modern Slavery Act 2015, as does the requirement to make regulations.

The Government have developed detailed policy for the provision of this service, which is set out in the interim independent child trafficking guardians guidance, published under section 49 of the Modern Slavery Act 2015. This guidance is kept under review through consultation with stakeholders. The correct place for the detail regarding the function of the service is in guidance, rather than, as new clause 43 suggests, the legislation itself. That enables the Government to respond flexibly to best practice and victims’ needs. The guidance is clear that acting in the child’s best interests must always be a primary consideration for the service.

New clause 43 would also ensure that an independent child trafficking guardian can continue to provide support to a child until the age of 25, to the extent that their welfare and best interests require such an appointment. Following a recommendation from the independent review of the Modern Slavery Act, the Government are currently trialling the provision of support, when appropriate, to individuals beyond the age of 18 in London, West Yorkshire and Warwickshire. An independent evaluation will look at the added value of implementing that change and consider appropriate next steps. The new clause would expand the scope of the independent child trafficking guardian service to all separated children when there are already existing provisions for separated children to receive support and assistance through other means.

I assure the Committee that the Government take their responsibility for the welfare of unaccompanied children extremely seriously. We have comprehensive statutory and policy safeguards in place for caring for and safeguarding unaccompanied asylum-seeking children in the UK, including those who are victims of trafficking. When an unaccompanied asylum-seeking child becomes looked after by a local authority, they are entitled to the same level of support and care from their local authority as all looked-after children. Under these arrangements, a looked-after child must be provided with access to education, healthcare, legal support and accommodation. They will be allocated a social worker who will assess their individual needs and draw up a care plan that sets out how the local authority intends to respond to the full range of those needs. Our record demonstrates the Government’s determination to ensure that unaccompanied children and child victims of modern slavery are appropriately safeguarded and have the support they need.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I am conscious that we need to make progress, but I will take a quick intervention.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I am grateful. I do not dispute that the provision already exists in legislation for independent child trafficking guardians; my dispute is that, as we have heard, they are not available in reality for a third of the country. If the Minister is saying that we do not need a requirement in legislation to do this, how does he plan to ensure that those guardians are available right across the country?

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

If I may, I will write to the Committee. I have undertaken to write to the Committee with more information in relation to another matter we discussed earlier, and I am very happy to provide more information to the Committee in answer to that question.

Turning to new clause 44, I appreciate that appropriate methods of assessing the effectiveness of independent child trafficking guardians are required. The current independent child trafficking guardian service model is informed by the findings of the evaluation of early adopter sites, published in July 2019, and the evaluation of the regional practice co-ordinator role, published in October 2020. The provision of independent child trafficking guardians in section 48 of the Modern Slavery Act 2015 provides the Secretary of State with a duty to make such arrangements considered reasonable to ensure that specialist independent child trafficking advocates are

“available to represent and support children who there are reasonable grounds to believe may be victims of human trafficking.”

Section 48(6) places a duty on the Secretary of State to make regulations about independent child trafficking advocates, which must include the circumstances and conditions under which a person may act as an independent child trafficking advocate, arrangements for the approval of the appointment of such advocates, the timing of appointment and the advocates’ functions. As mentioned earlier, the roll-out of the independent child trafficking guardian service is being informed by the findings of the evaluation of early adopter sites. As such, regulations will be brought forward in due course.

Independent child trafficking guardians are now operating in two thirds of all local authorities in England and Wales, as the hon. Lady said. It is important that the provision is able to support those vulnerable children appropriately, and it is precisely for this reason that a staggered approach has been adopted, with built-in evaluations along the way. We will continue to monitor closely the independent child trafficking guardian service to ensure practitioners are acting in the child’s best interests and that resource is being allocated appropriately. We will adjust guidance as needed to ensure that these vulnerable victims are protected and supported to recover from their exploitation. For the reasons I have outlined, I invite the hon. Lady not to press her new clauses.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office) 3:30 pm, 4th November 2021

I live in hope that anyone who can run a marathon for Justice and Care would understand the value of the independent child trafficking guardians and the victim navigators, and with that in mind, I very much look forward to the Minister’s further commitments in writing. If we are not satisfied, we will come back to this issue on Report, but I trust that he will do everything he can on those two fronts. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.