Children and Young Persons Bill [HL]

moved Amendment No. 22: 22: Before Clause 7, insert the following new Clause— ““Guardians for children with special protection needs (1) As soon as a child under 18 who is separated from both his parents and is not being cared for by an adult who by law or custom has responsibility to do so makes an asylum claim or a human rights claim or is identified as a victim of trafficking, a local authority must ensure that a legal guardian is appointed to represent that child. (2) The following expressions have the same meaning in this section as in section 113 of the Nationality, Immigration and Asylum Act 2002 (c. 41)— (a) ““asylum claim””; (b) ““human rights claim””. (3) ““Trafficking”” means the arrangement or facilitation of the arrival in, entry into, travel within, or departure from the United Kingdom for the purposes of exploitation as defined in section 4(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (trafficking people for exploitation).”” The noble Baroness said: Amendment No. 22 is about guardians for children with special protection needs. By that we mean children who are separated from their parents and who come to the UK and seek asylum, or children who have been trafficked. Each year 3,000 such children come to the UK and claim asylum. The Refugee Children’s Consortium has repeatedly called for a system of guardianship for these children, most recently during the passage of the Children Act 2004. The continued denial of full statutory safeguards to be placed on the Border and Immigration Agency under Section 11 of the Children Act 2004, and the proposals to introduce fundamental changes to the system of support for unaccompanied asylum-seeking children, means that the need for a children’s guardian has now become urgent. There is no systematic provision of independent oversight on matters involving separated children who are subject to immigration control. Children may go unrepresented in their asylum application; they may be placed in inappropriate accommodation with inadequate support; and may not understand the implications of their asylum application. In particular, the long-term solutions for each child may not be fully explored. In the current system, separated children seeking asylum—some as young as eight years old—have to instruct their own solicitors. I have difficulty instructing a solicitor, let alone an eight year-old child. The question of a child’s competence to be party to legal proceedings is addressed in various jurisdictions, but not before the Asylum and Immigration Tribunal. Citizen children who go through similar court proceedings are recognised as needing independent advice and support to represent their best interests. This is provided through CAFCASS, a non-departmental public body accountable to Parliament through the Chancellor. It is independent of the courts, social services, education and health authorities and all similar agencies. Children’s guardians represent the interest of a child in court during cases in which social services have become involved in the child’s case. Even a child going to a police station to give evidence about something which he or she may or may not have been involved with has the right to have an appropriate adult with them. Under Code C, Section 1 of PACE, if the police think that a person coming to the police station is under 17 years-old they have to act under Code C, paragraph 11.15, which provides that a vulnerable person, "““must not be interviewed … or asked to provide or sign a written statement … in the absence of an appropriate adult””." In the Code C notes for guidance, paragraph 11C states that it is important to remember that: "““Although juveniles or people who are mentally disordered or otherwise mentally vulnerable are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to provide information which is unreliable, misleading or self incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s age, mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible””." The attendance of the appropriate adult is an essential prerequisite for a lawful interview. Without it the interview is likely to be held as inadmissible by the court. The appropriate adult is not just an observer and their role is to advise the detainee and to observe the interview and whether or not it is being conducted properly and fairly. It is also their role to facilitate communication with the person being interviewed. That is the sort of support that is given to a child who is a citizen of this country, but no such support is provided for separated asylum-seeking and trafficked children, who, in addition, are increasingly unable to access the specialist legal advice needed to ensure that they are properly supported and receive a timely decision on their asylum application. The Home Office consultation paper, Planning Better Outcomes and Support for Unaccompanied Asylum Seeking Children, outlines plans to disperse these children, which raises even greater concerns about the provision of adequate legal advice and other support services. The case for guardianship is even more compelling in the light of the changes made to the immigration rules in December 2007, which state that all children over the age of 12 who make their own asylum application will be interviewed. We would not interview a citizen child without an appropriate adult speaking for them and ensuring that they get fair play, so why should we do that for the most vulnerable children who come to our shores in great need? Also of great concern is the high number of separated children who go missing from local authority care. Two different pieces of research on child trafficking in England found that in well over half of the cases of examined the child identified had gone missing. Based on that evidence, UNICEF UK—I declare an interest as a trustee of that body—recommended that a guardian is appointed for trafficked children as soon as a child victim is identified or there are reasonable grounds to believe that the child is a victim. We have international obligations in this respect but I shall not go into all of them now. The Government have claimed in the past that the children’s panel of the Refugee Council provides what is needed here. But, although the children’s panel is able to help a large number of unaccompanied children to access legal representation, it is by no means guaranteed for all children seeking asylum on their own. The panel’s role is not a statutory one, although it is funded by the Home Office. There is no obligation on children’s services to work together with the panel of advisers or vice-versa. It has no mandate to report, to make recommendations or to ascertain the feelings of the child. It does not act as an ““appropriate adult””, as I described it a few minutes ago, and it does not act as a litigation friend or a CAFCASS court welfare officer. NGO agencies such as the Refugee Council Children’s Panel, valuable though they are, are no substitute for statutory guardianship. I hope that the Minister will pick up this case and heed the needs of these most vulnerable children and give them at least the same sort of protection that we give to citizen children who find themselves tied up with these serious legal matters. I beg to move.