policy briefing MARCH 2013

Transcription

1 Law Cen entr tre (NI) La policy briefing MARCH 2013 Improving the system for responding to sated children in Northern Ireland: a reflection paper This reflection paper on activities and developmen elopments s relating to sep ated ed children en subject to imm-igration con ontr trol ol in Northern Ireland draws s toge ogether key learning in this comple omplex x area a and sets out actions now required to support this group of children. Key points In recent years, a range of voluntary organisations and statutory agencies have work orked to address s diffic icultie ulties fac aced by sep ated children in Northern Ireland. The numbers of f sep ated children in Northern Ireland are small, however er, these e children fac ace a number of f challeng- ing issues. A Working Group con onvened by the Law Centre examined and mapped out the welf elfar are and immigration proc ocesses s a sep ated child might t encoun ounter on arrival in Northern Ireland. Significant achievements have been made in how w agencies s deal al with sep ated ed children and a number of further dev- elopments are pending. To o build on these e achievemen ements,, we recommend a system of guardianship for Northern Ireland that incorpor orporat ates s a number of initiatives (see full recom- mendations on page 7).

2 sated children Background Sated children are people under eighteen years of age who are outside their country of origin and sated from both parents or their legal/customary primary care giver. 1 Law Centre (NI) advises and represents sated children subject to immigration control. We also provide training to advisers and practitioners on this issue. Since 2010, we have been chairing a working group on sated children. In early 2010, the Law Centre s North/South Immigration Forum examined social services duties to children subject to immigration control. A key discussion point was the obligation in international and regional human rights instruments to appoint a guardian to protect the rights of sated children, as recommended by the UN Committee on the Rights of the Child (see box below). The UN Committee on the Rights of the Child General Commen omment t No.6 (2005) stat ates: 33. States are required [...] to secure proper representation of an unaccompanied or sep ated child s best t inter erests.. Ther herefor ore, States should appoint a guardian or adviser as soon as the unaccomp ompanied or sep ated child is identified and maintain such guardianship arrangemen angements until til the child has either reached the age of majority or has permanently left the territory[...] The guardian should be consulted and informed regarding all actions taken in relation to the child. The guardian should have the authority to be present in all planning and decision- making proc ocesses,, including immigration and appeal al hearings arings,, car are arrangemen angements and all effor orts to sear arch for a durable solution. The guardian or adviser should have the necessary expertise in the field of childcare, so as to ensure that the interests of the child are e saf afeguar eguarded and that the child s s legal, social, health, psychological, material and educational needs are appropriately covered by,, inter er alia, the guardian acting as a link between the child and existing specialist agencies/individuals who provide the continuum of care required by the child. Encouraged by these discussions, the Law Centre convened a Working Group on Sated Children, which met for the first time in September The working group has made a positive contribution to the policies and practices governing sated children in Northern Ireland. It has been instrumental in identifying issues faced by these children and by practitioners and in developing recommendations to improve current practice. This paper outlines the views of the Law Centre and not the working group. How many sated children are in Northern Ireland? A critical first step for the working group was to get a better idea of the numbers of sated children in Northern Ireland particularly necessary given that UK Border Agency does not publish regional figures. It is difficult to get an accurate picture, however, Voices of Young People in Care (VOYPIC) surveyed the five health trusts and found that between July 2009 and November 2010 (a period of seventeen months), thirteen sated children presented to social services in Northern Ireland. The children were from a range of nationalities including Chinese, Nigerian, Sudanese and Somali and were aged between nine and seventeen years old. page 2

3 sated children That the number of sated children in this jurisdiction is small was confirmed in subsequent research conducted by NSPCC and Barnardo s which found less than ten sated children presenting to social services in Data presented to the Northern Ireland Assembly shows that twelve unaccompanied minors were referred to social services between January 2009 and June UKBA data confirms that only three unaccompanied asylum seeking children lodged applications in Northern Ireland in UKBA data also confirms that six referrals of child trafficking were made to UKBA between 2009 and Of these, only two were conclusively recognised as victims of trafficking although one case remains pending. The PSNI acted as the first responder 7 in all but one case, where Border Force played this role. Unfortunately, we also know that sated children are still going missing from the care of social services. Three children went missing between June 2011 and June It is unknown whether these children were asylum seekers, victims of trafficking or other. The mapping process In December 2010, the working group presented a paper to trust directors and subsequently met with DHSSPS officials to outline a range of key issues identified by the group. The Law Centre also surveyed members of its Immigration Practitioners Group to identify common difficulties encountered by those representing sated children. In spring 2011, the working group convened two workshops to identify and record all the different welfare and immigration processes that a sated child might encounter in Northern Ireland. Hosted by Northern Ireland Commissioner for Children and Young People (NICCY), the workshops brought together statutory organisations responsible for sated children with relevant community and voluntary sector organisations. A detailed mapping report was subsequently circulated to attendees. Through this process, a number of issues were identified (see box below): Aut utonom onomy/legal stat atus us Concerns that children have little understanding or participation in the immigration and welfare processes determining their future. Children deal with a range of professionals (social workers, legal representatives, healthcare professionals, police officers, UKBA officers, etc), which can be a bewildering experience. Looked After Status does not give parental responsibility to the trust. Care Orders are rarely obtained for these children, meaning it is seldom that a person or agency has parental responsibility. This may create difficulties for children who are unable to give full instructions in relation to their immigration status or health treatment. Initial identification Concerns that some children are interviewed without the presence of an appropriate adult. Concerns about whether children properly give consent to being fingerprinted and photographed. Difficulties in obtaining interpreters can result in delays in children s needs being assessed. continued on page 4 page 3

4 sated children Immigration proc ocess Children do not always receive prompt access to specialist immigration advice, resulting in protection needs not being correctly identified. Children are subject to repeat interviews. Delays in UKBA decision making. Lack of child friendly interview room at UKBA facilities. Problems arising through the interaction between asylum and trafficking processes. Specialist immigration advisers may have little expertise in welfare matters such as care provision and be unaware of available services. Welf elfar are proc ocess Not all social workers have specialist training, for example in identifying victims of trafficking or conducting Mertoncompliant age assessments (a Merton compliant assessment is the legal standard for formal age assessment of a child). The age dispute process can pit the child against social services (the child s care provider) which may create a conflict of interests. If newcomer children are not recorded on the October school census, there are resource implications for schools which cannot draw down additional funding to support English language needs. Concerns that GPs may not be routinely consulted on key events that could adversely impact on the child s mental/ physical health. The transition between child and adult status can give rise to difficulties in accessing support. Children have limited entitlement to benefits. Welfare practitioners may have little expertise in immigration and therefore may be unaware of the (often) onerous compliance requirements and timescales. Accommodation It can be difficult for social workers to identify suitable accommodation. Likewise, it can be difficult to meet the children s cultural needs. Social services face considerable resource pressures when placing children. Social services duties of care to all children in their care may make the immediate placement of an unknown sated child in a Children s Home inappropriate. Suspected child victims of trafficking have gone missing from care in Northern Ireland and GB. Other issues The difficulties faced by social workers in Northern Ireland are compounded by lack of Dtmental guidance on dealing with sated children. Lack of regional data on sated children. Lack of a monitoring or oversight body to review practice in relation to sated children in Northern Ireland. page 4

5 sated children Mapping process recommendations (2011) The seven key recommendations emerging from the Working Group process were 9. 1 Specific regional guidance should be issued by DHSSPS. 2 A mechanism should be established to review/ monitor practices in relation to sated children in Northern Ireland. 3 Centralised data should be periodically gathered, including details of outcomes for sated children. 4 Better training and support for practitioners, including social workers and carers, on the needs of sated children. 5 Opportunities should be identified to share information and best practice across organisations. 6 A legal representative and independent advocate should be appointed immediately in all sated children cases. 7 Consideration should be given to an expanded service by Guardian ad Litem Agency in relation to these children. What has been achieved? A lot of work has taken place since the inception of the Working Group in In February 2011, the Police Service of Northern Ireland (PSNI) and the Dtment of Health, Social Services and Public Safety (DHSSPS) jointly issued guidance on the working arrangements for the welfare and safeguarding of trafficked children. 10 The guidance is welcome but only applies to trafficked children. The Health and Social Care Board, in conjunction with DHSSPS, is developing a draft Service Standard encompassing sated children. 11 A Regional Group on Sated Children has been set up as part of the monitoring mechanism under the draft Service Standard. The Health and Social Care Board s Service Standard is still in development but will contain explicit standards and will be underpinned by evidence and legislative requirements. We anticipate that it will apply to children who are sated in an immigration sense (ie unaccompanied asylum seeking children, trafficked children and abandoned children subject to immigration control), as well as to any young person aged sixteen or seventeen who is homeless and sated from his or her parent or guardian. As the Service Standard will contain measurable performance indicators, it has the potential of significantly enhancing the care and services provided to sated children. Other developments include: The Corporate Parenting report produced by the Health and Social Care Board has been amended to start collecting data on sated children. A pilot protocol has been drawn up between Belfast Gateway Health and Social Care Trust and VOYPIC to ensure that sated children are referred to VOYPIC s independency advocacy service within 72 hours. NICCY and the UK Border Agency have started to meet annually to help ensure that sated children benefit from the same standards as local children. Additionally, key statutory agencies have been in discussion to look at operational practices, interface issues and to clarify and embed page 5

6 sated children working arrangements in line with DHSSPS/ PSNI guidance on trafficked children. Training opportunities for practitioners working with sated children are increasing. For example, NSPCC, in partnership with Barnardo s and Diversity in Action NI (DANI), has given training on trafficked minors to a range of practitioners including UKBA. This training builds on expertise from the NSPCC National Child Trafficking Advice Centre. 12 The DIANI project also incorporated sated children into its training programmes. In addition, the Law Centre hosted training on refugee children run by Immigration Legal Practitioners Association (ILPA) for legal and non legal practitioners in Northern Ireland. Work is underway in DHSSPS to produce Access to Social Care guidance which will encompass sated children. UKBA has begun to provide some regional data relating to sated children. The Dtment of Justice has established an NGO Engagement Group on Human Trafficking which includes representatives of the children s sector. Moving forward: a system of guardianship for Northern Ireland In June 2012, the Law Centre hosted a roundtable discussion to advance thinking about a guardianship model in Northern Ireland. Participants were mindful that the UK is required to implement a system of guardianship by April 2013 with the coming into force of an EU Directive. 13 EU Traf afficking Directiv ective: e: Article 14 (2) Members States shall appoint a guardian or a repr epresen entativ ative e for a child victim of f traf afficking in human beings from the moment the child is identified by the authorities where, by nat- ional law,, the holders s of f par aren ental al res- ponsibility are, as a result of a conflict of interest between them and the child victim, precluded from om ensuring the child s s best inter erest t and/or or from om repr epresen enting the child. The importance of a legal advocate/ guardian is gaining currency. In summer 2012, Lord Morrow published a Private Member s Bill which included a provision for a legal advocate to be appointed to represent the best interests of the child in cases of human trafficking. 14 In December 2012, the Northern Ireland Assembly resolved to welcome the report from the Group of Experts on Action against Trafficking in Human Beings (GRETA) and called on the Minister of Justice, along with Executive colleagues, to implement the recommendations in the GRETA report which relate to Northern Ireland. 15 One of these recommendations is the provision of legal guardians for potential child victims of trafficking. There are many different tried and tested systems of guardianship across Europe. There is also work taking place closer to home: Scotland is piloting an innovative guardianship system and the first evaluation is positive 16 while, in the Republic of Ireland, the Irish Refugee Council has established a system of independent advocates. Despite these advances, Westminster has constantly rejected the concept of guardianship, partly because it is reluctant to introduce yet another professional role into the lives of sated children. Some NGOs agree that there is no need to create an entirely new role but that page 6

7 sated children the existing framework can be better utilised to ensure protections. The United Nations Convention on the Rights of the Child is not prescriptive as to what form guardianship should take. 17 NICCY s research work, currently underway, should provide clear thinking on an appropriate guardianship model for Northern Ireland. Recommendations In improving on current practice in relation to sated children in Northern Ireland, a system of guardianship that satisfies the requirements of international and European law should be implemented. This should be complemented by a range of other initiatives. These include: 1. Measur asures s to ensure e that practitioner actitioners have a better understanding of processes and systems relating to sated children outside of their own daily working area. 2. The implementation of the Service Standard coupled with an effective Regional Sub Group. In order for the Regional Sub Group to be effective, we believe it should incorporate UKBA participation in the Regional Sub Group. 3. Publication of f DHSSP SPS S guidance on sep ated children. Regardless of whether this is standalone guidance on sated children or incorporated within the broader social care guidance, it should sit seamlessly alongside the existing DHSSPS/PSNI guidance on trafficked minors as well as the Service Standard Every sep ated child should have immediate access s to an independent t advoc ocat ate. We note that VOYPIC currently provides this service within the Belfast Trust area. Similar arrangements should be extended to provide an independent advocacy service for sated children to all trust areas. 5. Every sep ated ed child should have immediate access to a specialist legal representative. 6. Implementation of f the UK Bor order For orce s commitment whereby all children arriving at ports of entry will be immediately referred to local social services teams. Children will be given a period of up to four days to recuperate from their journey and to arrange for legal representation. 19 The UKBA should draw up a protocol with Belfast Trust Gateway Services to this effect. 7. An expanded role for the Guardian ad Litem Agenc gency in the lives of sated children. We envisage a situation where Care Orders are standard practice for most sated children not just for very young children. Thus, NIGALA would play the function of a guardian ad litem and the trust would have parental responsibility for the sated child. In the long-term, we would like to explore the possibility of an expanded NIGALA role, whereby it can advise other decision makers (such as UKBA and the Asylum and Immigration Tribunal) of the child s best interests. 8. Specialised social workers. Specialisms have been developed within social services homelessness teams; this model could usefully be applied to sated children. 9. An exp xpanded role for NICCY. Notwithstanding the fact that immigration is a reserved matter, NICCY should have full monitoring and investigation powers in respect to all children within Northern Ireland regardless of the child s immigration status. 10. Great ater awar arene eness s amongst t practitioner actitioners of existing support scheme such as the NSPCC National Child Trafficking Advice Centre and Barnardo s Safe Choices Programme. For long- page 7

8 sated children term integration, the Independent Visiting Scheme may prove to be very helpful. 11. Finally, opportunities should be sought to o feed into o cen entr tral-polic al-policy y making such as through participation at quarterly meetings convened by the Children s Sub Group of the UKBA National Asylum Stakeholder Forum. Conclusion Many of the measures outlined above are essential to better protect the rights of sated children and are well underway. We recognise that some of the recommendations may require further consideration and possibly legislative change. We do not pretend that all the difficulties currently facing sated children and practitioners would evaporate were these measures to be implemented. However, we do think that their implementation would constitute a considerable step forward in the protection of children s rights. The challenge ahead is to harness the momentum within the statutory sector and voluntary organisations alike. Notes 1 Definition developed by the European network Sated Children in Europe Programme. 2 The initial name was Working Group on Guardianship. In November 2011, members agreed to change the name to Working Group on Sated Children to reflect the fact that the Group s focus was wider than guardianship. Members include: Barnardo s, Belfast Trust, Children s Law Centre, DIANI, Law Centre (NI), NICCY, NIGALA, NSPCC, Northern Trust, VOYPIC. The HSC Board also attended. 3 NSPCC/Barnardo s, Sated children and child trafficking in Northern Ireland (September 2011). 4 Minister Poot s written answer to Assembly question AQW 15255/11-15 (19 October 2012). 5 This information was provided to Law Centre (NI) by UKBA and was correct as of 14 November The figures show a snapshot picture; they are indicators only and are subject to change. 6 This data was provided by UKBA in oral/written form to the NI All Party Group on Trafficking on 13 November 2012 and therefore the 2012 data is incomplete. Note these figures only relate to cases where the potential victim is subject to immigration control and therefore do not include British/Irish/EEA children. 7 The first responder is the organisation/agency that formally refers a victim into the National Referral Mechanism the UK s system for identifying victims of trafficking. 8 Minister Poot s written answer to Assembly question AQW 15255/11-15 (19 October 2012). 9 These were distilled from a total of 24 good ideas suggested at the mapping workshops. 10 DHSSPS / PSNI Working Arrangements for the Welfare and Safeguarding of Child Victims on Human Trafficking (February 2011). 11 The Board is developing a Children and Young People Service Framework, which will contain a number of service standards. The service standard on sated children will be grouped within Children and Young People in Special Circumstances. 12 Formerly NSPCC National Child Trafficking Advice and Information Line. It was reported at the All party Assembly Group meeting in September 2012 that this service has received 77 enquiries from Northern Ireland in respect of trafficking, including nineteen queries from PSNI and two legal queries. 13 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA. 14 Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill. As per the Explanatory Notes to Lord Morrow s Bill, Clause 11 would require a legal advocate to be appointed when a child is identified as a possible trafficking victim and there is no person with parental responsibility available. The legal advocate should be safeguarding the child s best interests and working for a long-term solution for the child. The responsibilities of a legal advocate are based on the UNICEF requirements. 15 Hansard NIA 3 December 2012, Vol 80, No Heaven Crawley and Ravi JS Kohli, First Annual Evaluation Report of the Work of the Scottish Guardianship Service Pilot (December 2011). 17 The UNCRC General Comment No.6, Treatment of Unaccompanied and sated children outside their country of origin (2005) outlines some qualities that a guardian should possess. See also Sated Children in Europe Project for specific responsibilities. 18 Guidance should contain a similar provision to the DHSSPS / PSNI guidance whereby a legal representative should be notified as a matter of urgency when a child is identified (February 2011) paragraph Correspondence written by Minister Damian Green to Dr Maggie Atkinson, Children s Commissioner for England (6 February 2012) in response to the Children s Commissioner s Landing in Dover report. page 8

9 Law Centre (NI) Central office 124 Donegall Street, Belfast BT1 2GY Telephone: Textphone: Web: eb: Western area office 9 Clarendon Street, Derry BT48 7EP Telephone: admin.derry@lawcentreniwest.org Advice line: Mon-Frida riday 9.30 am to 1.00 pm and For more information about the Law Centre: entr treni. eni.or org Law Centre (NI) offers legal services to practitioners and policy development in communit ommunity y car are,, employmen yment,, immigration, mental al health and social sec ecurit urity.. We e also offer training courses for practitioners and information through our publications and website. We hold regular legal practitioner meetings where practitioners can exchange expertise and receive important updates. Law Centre (NI) April 2013 All rights reserved. No part of this publication may be reproduced, stored on any retrieval system or transmitted in any form by any means, including photocopy- ing and recording, without the prior written permission of Law Centre (NI). Law Centre