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6.5 Safeguarding Children from Abroad (including children who are victims of trafficking and unaccompanied asylum seeking children)

If practitioners have a query it may be directed to Mary.Moroney@hertfordshire.gov.uk.

RELEVANT CHAPTERS

The Laming Report is particularly relevant to the area of work covered in this chapter.

Section 55 of the Borders, Citizenship and Immigration Act 2009 came into force on 2 November 2009. It requires the UK Border Agency to make arrangements to safeguard and promote the welfare of children in discharging its immigration, nationality and general customs functions. The guidance is set out in 'Statutory Guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children'.

See also:

The Age Assessment Joint Working Guidance produced jointly by the Immigration and Nationality Directorate of the Home Office and the ADSS.

Safeguarding Children who may be Trafficked published by the DCSF (now the Department for Education) in December 2007

"Better Outcomes - the way forward, improving the care of unaccompanied asylum seeking children"

NCB: Asylum Seeking and Refugee Children and Young People - Good Practice Project Website

This chapter is currently under review.


Contents

  1. Introduction
  2. Purpose
  3. Principles
  4. The Status of Children Who Arrive From Abroad and Legal Duties Towards Them
  5. Identification and Initial Action
  6. Establishing the Child's Identity and Age
  7. Parental Responsibility
  8. How To Seek Information From Abroad
  9. Assessment
  10. Seeing the Child
  11. Child's Developmental Needs
  12. Parenting Capacity
  13. Family and Environmental Factors
  14. Children In Need Of Protection
  15. The Trafficking of Children

    Appendix 1: Legal Status


1. Introduction

Large numbers of children arrive into this country from overseas every day. Many of these children do so legally in the care of their parents and do not raise any concerns for statutory agencies. However, recent evidence indicates that many children are arriving into the UK under the following circumstances

  • In the care of adults who, whilst they may be their carers, have no Parental Responsibility for them;
  • In the care of adults who have no documents to demonstrate a relationship with the child;
  • Alone;
  • In the care of agents.

Evidence shows that unaccompanied children or those accompanied by someone who is not their parent are particularly vulnerable. The children and many of their carers will need assistance to ensure that the child receives adequate care and accesses health and education services.

A small number of these children may be exposed to the additional risk of commercial, sexual or domestic exploitation.

Immigration legislation impacts significantly on work under the Children Act 1989 to safeguard and promote the welfare of children and young people from abroad. This guidance refers to the current legal framework but it is important to note that regulations and legislation in this area of work are complex and subject to constant change through legal challenge. The guidance intends only to reflect broadly the additional issues faced by families operating also within the context of immigration law. All practitioners need to be aware of this context to their contact with such families. Legal advice on individual cases will usually be required by Children's Services.


2. Purpose

The purpose of this guidance is to assist staff in all agencies to:

  • Understand the issues which can make children from abroad particularly vulnerable;
  • Identify children from abroad who may be in need, including those who may be in need of protection;
  • Know what action to take in accordance with their responsibilities.

As with any guidance, it is not intended to provide the answer to all situations. No practitioner or agency holds all of the knowledge; the groups of children and families change and our knowledge of specific issues is developing.


3. Principles

There are some key principles underpinning practice within all agencies in relation to unaccompanied children from abroad or those accompanied by someone who does not hold Parental Responsibility.

These are:

  • Children arriving from abroad who are unaccompanied or accompanied by someone who is not their parent should be assumed to be a Child in Need unless assessment indicates that this is not the case. The assessment of need should include a separate discussion with the child in a setting where, as far as possible, they feel able to talk freely;
  • Assessing the needs of these children is only possible if their legal status, background experiences and culture are understood, including the culture shock of arrival in this country;
  • Be prepared to seek out information from other sources;
  • Beware of "interrogating" the child;
  • Ensure that when working with interpreters they are screened and trained.


4. The Status of Children Who Arrive From Abroad and Legal Duties Towards Them

See also Appendix 1: Legal Status for information about Legal Status

Children who arrive in the UK alone or who are left at a port of entry by an agent invariably have no right of entry and are unlawfully present. If they are in a position to claim asylum, this should be arranged as soon as possible if appropriate. Children's Services will have a duty to provide appropriate support and services to Children in Need until they are 18 years of age, under section 17 or section 20 of the Children Act 1989.

If their asylum claim is not resolved before they reach 18 years old, support after the age of 18 years is generally provided by National Asylum Support Services (NASS) and jointly with Adult's Social Care Services where appropriate.

Children who arrive in the UK with or to be with carers without parental responsibility may have leave to enter the country or visas or may be in the UK unlawfully. Children's Services will have responsibilities towards them if they are Privately Fostered under the Private Fostering Regulations. If the child is assessed to be in need, support can be provided by Children's Services for the child, and for the family if this is not excluded by section 54 of the Nationality Immigration and Asylum Act 2002 (see Appendix 1: Legal Status).

Some children who arrive in the UK with their parents belong to families of European Economic Area States or European Union nationals migrating into the UK. Whereas adults in such families cannot be supported by Children's Services except for the provision of return travel (and associated accommodation), they still have responsibilities towards any child who is a Child in Need, including providing accommodation for the child alone.

Data Sharing:

In January 2012, the UK Border Agency wrote to all chief executives of local authorities in relation to data sharing between the UK Border Agency and local authorities. The letter refers to the establishment of the new Independent Family Returns Panel for the purpose of providing expert advice to the UK Border Agency on the method of removal from the UK. As part of this, the Panel may request information in order that any return plan for a particular family has taken into account any information held by other agencies that relates to safeguarding, welfare or child protection. In particular a social worker or manager from Children’s Social Work Services may be invited to contribute to the Panel.

Click here to view the UKBA letter regarding Data sharing between UK Border Agency and local authorities.


5. Identification and Initial Action

Whenever any professional identifies a child who they believe has recently moved into this country, they should see the child alone and ascertain his or her wishes and feelings (depending on age and understanding).

The following basic information should always be sought:

  • Confirmation of the child's identity, age and immigration status;
  • Confirmation of the carer's relationship with the child and immigration status;
  • Confirmation of the child's health and education arrangements in this country;
  • Confirmation of the child's health and education arrangements in the country of origin and any other country that the child has travelled through.

This should be done in a way which is as unthreatening to the child and carer as possible.

If this information indicates that the child has come from overseas and is being cared for by an unrelated adult or one whose relationship is uncertain, Children's Services should be notified as the child will come within the definition of a Privately Fostered child and an assessment must be undertaken under the Private Fostering Regulations.

The immigration status of a child and his/her family has implications for the statutory responsibilities towards the family. It governs what help, if any, can be provided to the adults in the family and how help can be offered to the child.

Where families are subject to immigration legislation, which precludes support to the adults, many families will disappear into the community and wait until benefits can be awarded to them. During this interim period the children may suffer particular hardship - e.g. live in overcrowded and unsuitable conditions and with no access to health or educational services. They are particularly vulnerable to exploitation because of their circumstances.

Children who disappear and where there are concerns about the child's welfare should be consider to be missing and agencies should notify the Police and Immigration and Nationality Department - see Children who go Missing Including from School Procedure.


6. Establishing the Child's Identity and Age

See also the Age Assessment Joint Working Protocol between Immigration and Nationality Directorate at the Home Office

Age is central to the assessment and affects the child's rights to services and the response by agencies. In addition it is important to establish age so that services are age and developmentally appropriate.

Citizens of EU countries will have passport or ID card (usually both). Unaccompanied children very rarely have possession of any documents to confirm their identity or even to substantiate that they are a child. Their physical appearance may not necessarily reflect his/her age.

The assessment of age is a complex task, which often relies on professional judgement and discretion. The advice of a paediatrician with experience in considering age may be needed to assist in this, in the context of a holistic assessment. Such assessment may be compounded by issues of disability. Moreover, many societies do not place a high level of importance upon age and it may also be calculated in different ways. Some young people may genuinely not know their age and this can be misread as lack of co-operation. Levels of competence in some areas or tasks may exceed or fall short of our expectations of a child of the same age in this country.


7. Parental Responsibility

The Children Act 1989 is built around the concept of Parental Responsibility. This legal framework provides the starting point for considering who has rights, responsibility and duties towards a child.

In some cultures, child rearing is a shared responsibility between relatives and members of the community. Adults may bring to this country children for whom they have cared for most of their lives, but who may be unrelated or "distantly" related.

An adult whose own immigration status is unresolved cannot apply for a Residence Order to secure a child for whom he/she is caring.

Children whose parents' whereabouts are not known have no access to their parents for consent when making important choices about their life. Under Section 3(5) of the Children Act 1989, the person who has the actual care of the child may do all that is reasonable in the circumstances to safeguard the child's welfare. In these circumstances, children can still attend school, and schools should be pragmatic in allowing the carer to make most decisions normally made by the parent. They are also entitled to health care and have a right to be registered with a GP. If there are difficulties in accessing a GP, the local Patient's Services should be contacted to assist.

Emergency life-saving treatment will be given if required. However, should the child need medical treatment such as planned surgery or invasive treatment in a non life-threatening situation, the need for consent will become an issue and legal advice may be required by the medical practitioner.

Children's Services have statutory duties where the child is Privately Fostered.

Carers/parents are not eligible to claim benefits for their child unless each have been granted some form of "leave to remain" in this country by the Home Office.


8. How To Seek Information From Abroad

Seeking information from abroad should be a routine part of assessing the situation of an unaccompanied child. Professionals from all key agencies - Health, Education, Children's Services and the Police - should all be prepared to request information from their equivalent agencies in the country or countries in which a child has lived, in order to gain as full as possible a picture of the child's preceding circumstances.

It is worth noting that agencies abroad tend to respond quicker to e-mail requests/faxed requests than by letter. Similarly, the Internet may provide a quick source of information to locate appropriate services abroad.

See Contact Details for contact numbers and addresses which are possible sources of information.


9. Assessment

NB Any assessment should be informed by reference to the issues raised in the Laming Report.

Following a referral to Children's Services, any unaccompanied child or child accompanied by someone who does not have Parental Responsibility should receive an Assessment in order to determine whether they are a Child in Need of services, including the need for protection.

Such children should be assessed as a matter of urgency as they may be geographically mobile and their vulnerabilities may be greater. All agencies should enable the child to be quickly linked into universal services, which can begin to address educational and health needs.

The assessment of children from abroad can be challenging. It is helpful to use the Assessment Framework, provided that it is recognised that the assessment has to address not only the barriers which arise from cultural, linguistic and religious differences, but also the particular sensitivities which come from the experiences of many such children and families.

The needs of the child have to be considered, based on an account given by the child or family about a situation, which the professional has neither witnessed nor experienced. In addition, it is often presented in a language, and about a culture and way of life about which the professional is unfamiliar or has only basic knowledge.

It is vital that the services of an interpreter are employed in the child's first language and that care is taken to ensure that the interpreter knows the correct dialect. Agencies should ensure that the interpreter is professionally trained and, wherever practicable, a member of a recognised organisation. They can be a rich source of information about traditions, politics and history of the area from which the child has arrived. They may also be able to advise on issues like the interpretation of body language and emotional expression.

The first contact with the child and carers is crucial to the engagement with the family and the promotion of trust which underpins the future support, advice and services. Particular sensitivities which may be present include:

  • Concerns around immigration status;
  • Fear of repatriation;
  • Anxiety raised by yet another professional asking similar question to ones previously asked;
  • Lack of understanding of the separate role of Children's Services to that of the Police and Immigration Services;
  • Lack of understanding of why an assessment needs to be carried out;
  • Previous experience of being asked questions under threat or torture, or seeing that happen to someone else may affect the child's and the carer's response to questioning;
  • Previous traumatic events can impact upon the child's mental and physical health;
  • Previous traumatic events may also lead to a minimising by the family of agency concerns, for example about minor injury, poor living conditions or school attendance, which may appear trivial by comparison. This mismatch may add to the fear and anxiety;
  • The journey itself as well as the previous living situation may have been the source of trauma;
  • The arrival into a country with unfamiliar culture, systems and language can cause shock and uncertainty, and can affect the mood, behaviour and presentation of the child and carer.

In such circumstances, reluctance to divulge information, fear, confusion or memory loss can easily be mistaken for lack of cooperation, deliberate withholding of information or untruthfulness.

The first task of the initial contact is therefore engagement. Open questions are most helpful, with a clear emphasis on reassurance and simple explanations of the role and reasons for assessment. If the "engagement" with the family is good, there are more likely to be opportunities to expand on the initial contact, as trust is established.

Professionals should ensure that the engagement with the family is carefully planned. This will provide opportunities to expand on the initial contact. The ethnicity, culture, customs and identity of the child must be a focus whilst keeping the child central to the assessment.


10. Seeing the Child

When seeing the child, it is vital not to presume that the child's views are the same as their carer's, or that the views and needs of each child are the same. Seeing each child alone is crucial.

It is important to clarify with the child his or her relationship with the person accompanying them. For example, if it is claimed that the child is from the same place of origin as the carer, the child should have appropriate knowledge of that place.

In assessing the reliability of the child's account, practitioners should bear in mind the possible pressure the child may be under to follow a script or to give answers they believe are expected of them.

The pace of the interviewing of a child should aim to be at the pace appropriate to the child, although the need to ensure that the child is safe may become paramount in some circumstances.

Talking about parents/family can be stressful and painful for children, as can being denied the chance to do so regularly.


11. Child's Developmental Needs

Things to consider include:

  • Health, behaviour and social presentation can be affected by trauma and loss. Famine and poverty can have an impact upon development;
  • Wider health needs, including TB, HIV, and Hepatitis B and C. (this applies to the parent/carer also);
  • Education. What is the child's experience of school and/or any other education? and what are the child's educational needs?
  • Self care skills;
  • Identity. What is the child's sense of who they are, including any disabilities they may have, as well as their family, community and history?
  • Physical appearance. Life experience and trauma can affect this. Lack of nourishment may make the child present as younger or older;
  • Any physical, sensory or learning disability;
  • The impact of racism on the child's self image and the particular issues faced by asylum seeking children and their families.


12. Parenting Capacity

Things to consider include:

  • War, famine and persecution can make a family mobile. The family may have moved frequently in order to keep safe. The stability of the family unit might be more important to the child than stability of place. Judgements that mobility may equate with inability to provide secure parenting may be entirely wrong. In some countries regular migration to deal with exhaustion of the land is part of the culture;
  • The fact that a child appears to have been relinquished by a parent may not imply rejection, as the motive may have been to keep the child safe or seek better life chances for him/her;
  • Importance of the extended family/community rather than a Eurocentric view of family;
  • Do not assume that you cannot contact a parent who is living abroad unless you have established that this is the case by actively seeking to do so;
  • Lack of toys for a child may indicate poverty or different cultural norms rather than poor parenting capacity to provide stimulation;
  • The experience of racism can adversely affect parenting capacity;
  • The additional difficulties of parenting a child conceived through rape - either dealing with the negative response of the partner or with the stress of keeping it secret from him.


13. Family and Environmental Factors

The impact of economic and social hardship is visible. In addition there may be issues such as:

  • Family history may include the loss of significant family members, social status, housing and income, which are likely to impact on the family's functioning;
  • Different concepts of who are significant adults in the family and community and what responsibility is normally assumed by the whole community, e.g. who a child could safely be left with.


14. Children In Need Of Protection

Where assessment indicates that a child may be in need of protection and child protection procedures apply, additional factors need to be taken into account. These dilemmas include:

  • Perceptions of authority, the role of the Police in particular, and the level of fear which may be generated;
  • The additional implications for a family where deportation or prosecution is a real threat;
  • Balancing the impact of separation on a child with any previous history of separation or disruption.


15. The Trafficking of Children

The UN definition of trafficking is as follows:

  1. "Trafficking in persons" shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by the means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
  2. The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
  3. The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered "trafficking in persons" even if this does not involve any of the means set forth in subparagraph (a) of this article;
  4. "Child" shall mean any person under eighteen years of age.

Trafficking in people involves a collection of crimes, spanning a variety of countries and involving an increasing number of victims - resulting in considerable suffering for those trafficked. It includes the exploitation of children through force, coercion, threat and the use of deception and human rights abuses such as debt bondage, deprivation of liberty and lack of control over one's labour. Exploitation occurs through prostitution and other types of sexual exploitation, and through labour exploitation. It includes the movement of people across borders and also the movement and exploitation of people within borders.

The Criminal Justice System Trafficking Toolkit provides helpful guidance.

The Child Exploitation and On Line Protection Centre (CEOP)'s report on the Scoping Project on Child Trafficking in the UK (which contains Indicators of Child Trafficking in Annex 5)

Agencies should work together to ensure a joined up response.

A number of factors identified by the Assessment may indicate that a child has been trafficked:

  • The child may present as unaccompanied or semi accompanied;
  • The child may go missing;
  • The multi use of the same address may indicate that it is an "unsafe house" or that the house is being used as a "sorting house";
  • Contracts, consent and financial inducement with parents may become apparent;
  • The child may hint at threats to family in their home country for non co-operation or disclosure;
  • There may be talk of financial bonds and the withholding of documents;
  • False hopes of improvement in their lives (escaping war, famine, poverty or discrimination).

If it is identified that a child may be being trafficked for the purposes of sexual exploitation, see also Safeguarding Children Abused Through Sexual Exploitation Procedure.

Children are also trafficked for the purpose of domestic service or benefit fraud. These children may be less obvious, and their use to the family may be more likely to be picked up if they are Privately Fostered assessment, or because someone notices that they are living at a house, but not in school etc. Children who enter the country apparently as part of re-unification arrangements can be particularly vulnerable to domestic exploitation.

As soon as suspicions are raised that a child is being trafficked, immediate action to safeguard the child is required. This includes urgent liaison with the Police. Planning of the investigations should be within a Strategy Discussion/Meeting, in order to ensure that both the safety of this individual child and the investigation of organised criminal activity are addressed.

The offence of trafficking for prostitution, introduced in the Nationality, Immigration and Asylum Act 2002, carries a maximum penalty of 14 years.

The Sexual Offences Act 2003 introduced new wide-ranging offences covering trafficking into, out of or within the UK for any form of sexual offence, which also carries a 14 year maximum penalty. It also introduced a range of new offences covering the commercial sexual exploitation of a child, protecting children up to 18. These include buying the sexual services of a child (for which the penalty ranges from 7 years to life depending on the age of the child); and causing or inciting, arranging or facilitating and controlling the commercial sexual exploitation of a child in prostitution or pornography, for which the maximum penalty is 14 years imprisonment. A new offence of trafficking for exploitation, which covers trafficking for forced labour and the removal of organs, was introduced in the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004. These measures will also take into account the UK's international obligations under the UN Trafficking Protocol and the EU Framework Decision on Trafficking for the Purposes of Sexual and Labour Exploitation.


Appendix 1: Legal Status

The legal status of a child/family may be apparent from the documentation which the family carries.

An unaccompanied child (under 18) with an asylum claim has no access to public funds. However, the provisions of the Children Act 1989 will still apply. At least three weeks prior to reaching 18 the young person should be referred and assisted to the National Asylum Support Service (NASS) for ongoing support if the asylum claim is still outstanding.

The level of support given by the National Asylum Support Service (NASS) to a young person who has turned 18 may vary if they continue to live with relatives, e.g. no contribution will be made towards rent.

This is often complicated by duties that exist towards their parent/carers.  The Local Authority has no powers under the Children Act 1989 to support parents or carers. Support, including financial, can only directly benefit the child.

Some children may arrive in the UK to be rejoined with their parents. If their parents have an outstanding asylum claim, the children can be recognised as 'dependants' and granted the same status as the principle applicant. Dependants are those who:

  • Are related (as claimed on the Asylum application);

or

  • Were dependent on the principal applicant prior to arrival in the UK (even though unrelated);

    or

  • Had formed part of the preexisting family unit abroad (again even though they may be unrelated).

If indefinite or exceptional leave to remain (ILR/ELR) or Humanitarian Protection has already been granted to the parent, the child's application is considered as one for 'family reunion' and not as a 'dependent'. In these circumstances the child must have formed part of the pre-existing family unit abroad.

Children who are dependent on asylum seeking parents may also claim asylum in their own right and their applications are then considered individually, irrespective of the outcome of their parents' claim. The claims must be registered with the Immigration and Nationality Directorate (IND).

Relevant Legislation

Nationality, Immigration and Asylum Act 2002

Section 54 is retrospective and applies to anyone who comes within the categories set out below. This is not dependent on the length of time they have been in the UK.

The Act has the effect of preventing local authorities from providing support under certain provisions, including section 21 of the National Assistance Act1948 and section 17 of the Children Act 1989, to:

  • Nationals of the European Economic Area (EEA) States (other than UK);
  • Those with refugee status in another EEA state;
  • Persons unlawfully present in the UK who are not asylum seekers, including those who have overstayed visa entry limit and those without confirmation of ELR/ILR leave to remain;
  • Failed asylum seekers who refuse to cooperate with removal directions.

Section 55 applies to those who have made or are intending to make an asylum claim in the UK. It prevents NASS from providing asylum support unless the Secretary of State is satisfied that the person applied for asylum as soon as reasonably practicable after arrival in the UK. Families with dependent children will, however, receive asylum support even if they did not apply as soon as reasonably practicable.

Section 55 does not apply to unaccompanied minors.

Those who have not yet officially lodged an asylum claim can be offered assistance with accommodation (usually overnight) and travel to Immigration and Nationality Directorate Public Caller Unit (IND) by social services in order to register the claim with the Home Office. Family can then access NASS support via Refugee Action once IND has accepted the claim and provided written confirmation of this.

End