UK Borders Agency Code of Practice for Keeping Children Safe from Harm
Response of UASC Reform Steering Group
1. Introduction
This document sets out the response of UASC Reform Steering Group to the Home Office’s consultation paper Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children. The Steering Group consists of the following agencies:
§ Association of Directors of Children’s Services
§ Association of Directors of Adult Social Services
§ Association of Directors of Social Services Cymru
§ Local Government Association
§ London Councils
§ Welsh Local Government Association
§ Convention of Scottish Local Authorities
2. General points
2.1 The Code is welcomed as a huge step forward for UKBA, as it brings them into line with the majority of central and local government departments with regard to this safeguarding.
2.2 We welcome the language – keeping children safe from harm – which differs from previous policy documents. We have always maintained that children in the asylum system need to be treated as children first and foremost. Support for UASC needs to be driven by the needs of the child and child welfare considerations, rather than immigration status, and be in line with good childcare principles and practice. We hope that the Code is an opportunity to resolve the tensions between immigration and children’s legislation which local authorities are currently operating within.
2.3 The Code needs to be written in language that makes it clear and comprehensible to UKBA staff in order to ensure it is deliverable. The Code needs to be applied to UKBA staff at all levels and in all locations in order to ensure that the culture change needed is embedded throughout the organisation.
2.4 Lessons on how best to create this culture change could be learnt from other statutory sector organisations like the police. In the future, any new policies and operational procedures are questioned in the light of the code to see if UKBA policy or practice leads to harm to children.
2.5 Information sharing also will be key, both for protecting the vulnerable and for strategic planning. Clearer protocols around data sharing at a national and local level between Local Authorities and Central Government is needed. We need to work together, in order to agree what the best mechanism will be to share data. The Code needs to fit into local partnership structures and UKBA need to work closely with the Local Children’s Safeguarding Board.
2.6 However, there are implications for LA Children Services which, whilst within statutory duty, may require consideration of increased resources particularly in areas where there are significant numbers of children subject to immigration control.
2.7 There is no reference to the ongoing work of the ‘UASC Reform programme’, or the ratification of the EU convention on trafficking, or links to other guidance i.e. ‘safeguarding children who may have been trafficked’. UKBA and the Home Office need to ensure that the Code is linked to all future initiatives.
2.8 In relation to the Code’s section on removals, we recognise that some asylum applications will not be successful and that those applicants may be returned to their country of origin. However, we need to ensure that families have an adequate opportunity to make representation in support of their applications and, should they be unsuccessful, are treated in a humane and considerate manner in which safeguarding considerations of their children are to the fore. These processes must be underpinned by the principles of children’s rights legislation such as the UN Convention on the Rights of the Child, the Children Act 2004 and the Children (Scotland) Act 2005. The Home Office must apply appropriate tracking and monitoring mechanisms to support children returning to a country of origin to ensure they are not placed in any form of danger and are transported safely.
2.9 We would be happy to work with UKBA to discuss and pilot alternatives to family detention, which do not increase a risk of families absconding and detrimentally impacting on their children’s quality of life.
2.10 In summary, we would welcome further discussion needs to take place about the implications of:-
· Closer working and information sharing with UKBA
· Establishing local protocols
· Emphasis upon referral and resource implications
· Referral criteria and action responses / timelines
· Detention impacts and use of detention
· What information will be contained in the record of children detained
· Development of private fostering inspections by LA Children's Service Teams
· Role of LSCB's - possible expansion of current focus
· Code application in enforcing removal
· Responsibility for enhanced CRB checks for subcontracted staff who have access to children
3. Response to consultation questions
Sections 1-3 of the draft Code: The Framework for Keeping Children Safe
Q1.
· It is proposed that there should be a requirement for Border and Immigration Agency staff members to record and explain their reasons in writing if they have departed from the Code or from any instructions issued in support of the Code (section 1.4).
· What other suggestions do you have for the process that Border and Immigration Agency staff should follow if they depart from the Code?
· Do you think this proposed requirement should be introduced? (Yes/No/Don’t know)
· What other suggestions do you have for the process that Border and Immigration Agency staff should follow if they depart from the Code?
3.1 Answer
· The view is that the code should not be departed from unless exceptional circumstances. The consultation responses could provide additional information to amend the Code and make it more responsive to avoid any departure.
· Clear criteria for unavoidable departure should be published and scrutinised by interested bodies. We assume this criteria will be clearly defined within operational guidance.
· Clear lines of accountability need to be made explicit should departure occur i.e. who makes the decision to depart and who authorises it.
· The Code and/or resulting operational guidelines will need careful monitoring and evaluation, particularly in the initial period of transition.
· There needs to be a clear process of a breach does occur. This also needs to allow for external agencies to identify when a breach does occur.
· It is also important to have random checks as to whether staff are meeting the Code, via internal checks and external checks from an independent source.
· Age disputes also need to be subject to the Code.
Q2.
· If the proposed requirement is introduced (see question 1), who do you think should review these recorded departures from the Code?
· Please indicate the most appropriate person or body:
§ An external body with expertise in children’s issues
§ The Chief Inspector of the Border and Immigration Agency
§ The Children’s Champion in the Border and Immigration Agency
§ The Assistant Director responsible for children’s issues within the unit here the departure from the Code occurred
§ Another person or group within the Border and Immigration Agency (please state below)
§ Another person or group external to the Border and Immigration Agency (please state below)
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· If desired, please comment on your answer:
3.2 Answer
· The most appropriate person or body who should review recorded departures should be an independent / external body with expertise in children’s issues to avoid internal bias/ conflict of interest. This could be a role for the Children’s’ Commissioners or the Refugee Council.
· We would like to see explicit mechanisms in place that ensure that once reviewed, feedback is provided to strengthen the code and evaluate it. This learning should be used to strengthen future training.
Q3.
· The Code reflects the view that the best people to care for a child and communicate decisions about his/her future, including the immigration process, are his/her parents (section 1.6).
· Do you think the child’s parents should have primary responsibility for communicating with the child about the immigration process? (Yes/No/Don’t know)
· Do you think that an explanation of the immigration process should ever be given to the child by Border and Immigration staff members?
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§ Always
§ In most circumstances
§ In some circumstances
§ In few circumstances
§ Never
§ Don’t know
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· In what circumstances would it be appropriate for Border and Immigration Agency staff members to explain the immigration process to the child?
· In some instances an explanation offered by Border and Immigration staff members may be different to that offered by the parents. Do you have any suggestions about how such instances should be dealt with?
3.3 Answer
· The welfare of the child is paramount and communication must be tailored to their individual needs. A case management approach would be useful to taking a case-by-case decision about when/what is appropriate to inform a child. A blanket approach should not be taken.
· UKBA should take account of the age and circumstances of the child in considering whether to take a decision to explain the immigration process to a child. The child or young person’s psychological state may impede the fullest understanding of an explanation of the Immigration Process.
· We would advocate that in most cases the parents are best placed to undertake communication. However, for example, if it is there may be concerns or suspicions relating to the identity of the parents, we would suggest appropriate caution and the use of an appropriately trained, independent adult with which they can communicate.
· If it is decided not to involve the parents, there needs to involvement from an independent advocate/adviser with a knowledge of child care policy and practice, for example, involvement from a social worker. This post must be separate to the legal adviser.
· Though training on increasing awareness of children’s issues, UKBA staff should not be expected to gain expertise that would be equivalent to social care training. Playing two roles (of advocate and UKBA representative) also would be difficult for UKBA staff and confusing for applicants.
· There should be clear criteria for a member of UKBA staff talking with a child, it should be emphasised any communication must be restricted to information sharing around the immigration process and not stray onto any personal information.
· Information (posters and leaflets) produced by the UKBA should be made more child friendly as a matter of course so that children can access them, rather than having to request separate information designed for them.
· We note that UASCs are provided an explanation of the asylum process via the First Reporting Event (FRE). However, it is unclear how consistently this is being delivered across the country, and the level of understanding and value it has for the young person concerned. We would welcome further comment on the implications of this section on the current minors segment within NAA.
Section 4- 6 of the draft Code
Q4.
· The draft Code indicates that the Border and Immigration Agency complaints system will be the appropriate route for complaints relating to the Code (section 8.1).
· Should there be a dedicated complaints system for children to access? (Yes/No/Don’t know)
· If yes, what form should this complaints system take?
Q5.
· Section 3 indicates that the Code will be supported by operating instructions that cover all the main occasions when the Border and Immigration Agency has substantive contact with children.
· Do you think that it is appropriate to draw up operating instructions for each of these occasions/groups?
§ Interviewing of children to substantiate their application and their circumstances; Yes/No/Don’t know
§ Children during enforcement activities: (Yes/No/Don’t know)
§ Children during detention activities: (Yes/No/Don’t know)
§ Children during escorting activities: (Yes/No/Don’t know)
§ Children and contractor-led or other commissioned services: (Yes/No/Don’t know)
§ Special groups – missing children; trafficked children: (Yes/No/Don’t know)
· Please list any other occasions or groups for which operating instructions should be drawn up?
Q6.
· Please include any further comments you have regarding sections 1 – 3 of the draft code:
· Please list any other occasions or groups for which operating instructions should be drawn up?
3.4 Answer
Q4.
· UKBA will have to resolve issues of children not wanting to make complaints for fear it will impact on any decisions on status being taken. It should be a clear part of the Code that children making any complaints will not impact on the speed of the decision making process in order to reassure them and their families.
· The role of the independent advocate/child care expert highlighted above will be key. It may also be useful for complaints to be directed to a named individual within UKBA who heads the children complaints department or the children’s champion themselves.
· There needs to be a clear process that starts internally but moves to a higher level of independent people who have expertise with children. All UASC will have the right to an independent advocacy service through statutory requirements as a ‘looked after’ child.
· There also needs to be a clear explanation of the process from the start to reduce the likelihood of complaints. The procedures also should be highlighted to the child in a language they understand from the outset.
Q5.
· We believe there should be operating instructions for all the occasions listed. In particular, escorting activities which in the past have been unclear, and are often unsafe and therefore require specific scrutiny and accompanying instructions. Protocol needs to start at beginning of journey and end with their safe reception at the point of destination.
· We suggest that the others that should be added to the ‘Special groups’ include Forced Marriages, Age Disputes, Spirit possession & Female genital mutilation.
Q6.
Training and operational guidance
· Training and clear operational guidance will be key to ensure that the Code can be delivered and to ensure the culture change is needed. It would be helpful if external stakeholders could also comment on the operating instructions as this will also be key to delivery and partnership working.
· Training will need to be ongoing.