Clause 43 - Presumption about age

Modern Slavery Bill – in a Public Bill Committee am 2:30 pm ar 14 Hydref 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Sarah Champion Sarah Champion Llafur, Rotherham 2:30, 14 Hydref 2014

I beg to move amendment 101, in clause 43, page 28, line 40, leave out “with functions under relevant arrangements”.

Photo of Mark Pritchard Mark Pritchard Ceidwadwyr, The Wrekin

With this it will be convenient to discuss the following:

Amendment 103, in clause 43, page 28, line 41, after “trafficking”, insert “or slavery”

Amendment 104, in clause 43, page 29, line 1, after (2) insert “Unless and”

Amendment 105, in clause 43, page 29, line 2, after “determined”, insert “and no challenges to that determination are pending”

Amendment 106, in clause 43, page 29, line 2, leave out from “for” to “that” in line 3.

Amendment 102, in clause 43, page 29, line 5, leave out subparagraph (3).

Photo of Sarah Champion Sarah Champion Llafur, Rotherham

In the interests of time I will speak briefly. These are probing amendments to try to get clarity on the Minister’s position and to get some reassurance. The amendments seek to strengthen the support available to victims if they are deemed to be under the age of 18 and they would ensure that there are no gaps in the provision and protection offered to them. Deciding whether the victim is under 18 is a fraught exercise. Unless correctly decided, it would mean that the victim does not receive the child-specific protection and support that they really need. The Minister highlighted that there is a real risk of many children going missing in the first 72 hours. That is why we should have a presumption of age as a safeguarding measure to prevent that happening.

Amendment 102 asks for slavery to be included rather than just trafficking. That would make local authorities consider whether a possibility of slavery is apparent. If there are any grounds for considering slavery, the presumption of age should immediately kick in. Such an approach would not require a national referral mechanism decision, which is at best slow and bureaucratic. The hon. Member for Brent Central went into great detail about how the mechanism fails the people it is meant to protect, and I was heartened to hear the Minister say that she recognises such failings.

Amendments 104 and 105 have been tabled because currently there is no statutory basis for age assessment. Clause 43(1)(b) states:

“the authority is not certain of the person’s age but has reason to believe the person may be under 18.”

Can the Minister confirm whether that overrides the existing statutory guidance for local authorities on the care of unaccompanied asylum-seeking and trafficked children released by the Department for Education in July? It states:

“Age assessments should only be carried out where there is significant reason to doubt that the claimant is a child. Age assessments should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children.”

The word is a small addition, but I am concerned about the emphasis and the switch from “reason to believe” to “significant reason” to believe, and I hope that the legislation will override the existing guidance, because age assessment is not a science. There is no reliable means of assessing age. Age assessment is nothing more than social workers sometimes making an educated guess at a person’s age, often based on little more than a short interview. It is a notoriously difficult exercise to perform. The migrant children who are assessed come from many different cultures with varied life experiences and will display very different behaviours as a result.

For example, trafficked children often appear more sexualised than their peers, because of the abuse that they have suffered. Age assessments are frequently challenged in the courts and found to be unlawful. We know that local authorities have financial factors at play that create an obvious disincentive to making a finding that someone is a child. If they make such a finding, that local authority will have to support the child financially. The age assessment process is failing children and redress is beyond the scope of the Bill. We need to protect trafficked and enslaved children who are going through stressful age disputes and the best way to do that is to ensure that the presumption remains in place until the end of any dispute that may have arisen. That is achieved by amendment 105. Otherwise, the presumption of age is entirely toothless—it could remain in place for as little as one day and then be nullified by a wrong social services age assessment.

Photo of Sarah Teather Sarah Teather Democratiaid Rhyddfrydol, Brent Central

I want to make a few remarks further to those made by the hon. Member for Rotherham. This is a very welcome clause and I look forward to the Minister’s response to the hon. Member for Rotherham, who raised important issues. I agree with her that a local authority should never undertake an age assessment as a matter of course, but only when it is really necessary to determine the age of a child and there is good reason to doubt the child’s account.

The issue of age assessment is important and has some bearing on this clause. The determination of an age assessment has a profound impact on children and will determine whether they are eligible for a child guardian or local authority support. It can also impact upon an asylum claim where child-specific forms of persecution and risk need to be taken into account.

As Committee members know, there is currently no statutory procedural guidance to local authorities on how to conduct an age assessment. Instead, the current approach has developed over time through local authority practice and emerging case law, giving us what are called “Merton compliant” age assessments. The lack of statutory guidance and training has resulted in confusion within both the Home Office and local authorities about what constitutes a legal assessment, as well as a lack of consistency across authorities. During a case in 2012, a Home Office official admitted to not knowing the meaning of “Merton compliant”, despite having accepted an age assessment that claimed the child in question to be aged 18 to 20. That age assessment was considerably flawed and resulted in a 15-year-old boy being unlawfully detained in an immigration removal centre for 44 days. I have a personal interest in this issue because I was involved in the negotiation of the ending of child detention for immigration purposes. Of the last few children who ended up being detained, almost all fitted into this category, so it is really important that we get this right.

It is not an isolated example, unfortunately. For parliamentarians and civil society alike it is very difficult to monitor the prevalence of the use of age assessments by the Home Office, because statistics on young people who have had their age disputed are not kept as a matter of course and are not available to the public. Organisations such as the Coram Children’s Legal Centre have called for that information to be collected and made public, but those requests have so far fallen on deaf ears.

Age assessment can only ever be that—an assessment. There is no hard and fast way of determining an individual’s age, but the problems of the present system of age assessments are well documented. Back in 2007, Dr Heaven Crawley’s report “When is a child not a child?” found that the lack of statutory guidance has resulted in inconsistencies in the weight given to evidence and information that might be relevant to the decision, including paediatric and medical evidence where that is available. Likewise, the Coram Children’s Legal Centre’s report of May 2013 found that there is

“still much room for improvement” in the assessments carried out by local authorities. High among their recommendations was the need for a multi-agency approach to assessment, rather than leaving assessment solely in the hands of social workers.

Last year, the Association of Directors of Children’s Services established an age assessment strategic oversight group, which includes civil servants as well as practitioners and members of the Refugee Children’s Consortium. I hope that the Minister will pay close attention to the work of the group, so that we can see meaningful reform, rather than pursuing the idea that seems to rear its ugly head from the Home Office every year or so—the magic bullet of X-rays, which every paediatrician will say is less accurate than the rather inaccurate method we currently have, of using social workers. Luckily, the weight of ethical and scientific objections usually beats that back into submission until 12 or 18 months later, it reappears. This is a plea, while we are considering the clause, for the Minister to take note of the Association of Directors of Children’s Services oversight group, which I think will have some interesting and relevant things to say.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

I am very grateful to the hon. Member for Rotherham and my hon. Friend the Member for Brent Central for speaking in the debate, and to the hon. Member for Kingston upon Hull North for tabling the amendments. All have spoken with great insight and knowledge, especially my hon. Friend with her experience as an Education Minister. We are grateful for the knowledge she brings to the Committee.

Clause 43 reflects the presumption at article 13(2) of the EU directive on preventing and combating trafficking in human beings. The pre-legislative scrutiny Committee recommended that such a clause be included in the Bill to give clear effect to the UK’s international obligations in the trafficking context with regard to a child receiving appropriate assistance and support as soon as possible.

The Government recognise the particular vulnerabilities of child victims of trafficking. Their welfare must always be a primary consideration for public authorities, and I believe we all recognise that it is in the interests of a child victim, including their safety, that they should not be treated in adult services.

That is why the clause provides a presumption of age that reflects the UK’s international obligations in statute. It will ensure that where a trafficking victim’s age is uncertain and there is reason to believe they are a child, they are presumed to be a child for the purposes of receiving appropriate assistance and support.

Policy and guidance are already clear on this point, but further to assure partners that this is the case, and in line with the recommendation of the pre-legislative  scrutiny Committee, we have reflected that presumption in the Bill. The clause will ensure that child trafficking victims receive immediate and appropriate support and assistance. I welcome the chance that the amendments give me to set out as clearly as possible how the clause will provide effective protection to the child victims of trafficking.

Amendments 101, 102 and 106 aim to make the presumption of age a broader provision. The current provision relates the presumption directly to those public authorities that support child victims of trafficking, through the arrangements for support set out in statutory guidance under clause 42. The amendments would mean all public authorities, with the exception of courts and tribunals, would have to apply the presumption.

However, I can assure the Committee that in practice all relevant public authorities will be covered by clause 43. Public authorities that are required to provide support and assistance to trafficked children will be covered by the clause since those public authorities will be specified in the guidance issued under clause 42, and will therefore be specified for the purposes of the clause 43 presumption about age.

I welcome the challenge that the amendments posed and the opportunity they have given me to satisfy myself that this provision will be effective. However, I want to assure the Committee that the amendments are not necessary to achieve our shared goal.

Clause 43 has been drafted in order to ensure that it properly reflects our obligation under article 13 of the EU trafficking directive, that the presumption of age must apply in order that the person presumed to be a child can

“receive immediate access to assistance, support and protection in accordance with articles 14 and 15”.

Amendment 103 would extend the presumption about age to victims of slavery. The purpose of clause 43, added to the Bill following the recommendation of the pre-legislative scrutiny Committee, is to give clear effect to the EU’s international obligations under article 13 of the EU directive on preventing and combating trafficking in human beings, which does not extend to slavery.

As discussed during the debate on child advocates, it is recognised that victims of child trafficking are particularly vulnerable. They will be alone in an unfamiliar country, often unaware of their right to have a childhood. They will have specific needs that require specialist support and our international obligations set that out.

That need for specialist support has been highlighted by the Refugee Children’s Consortium, which said that it has been

“found that trafficked children are frequently age disputed because they will carry false documents or be forced to lie about their age by their traffickers”.

The Refugee Children’s Consortium also pointed out:

“Children whose age is disputed by the authority are put at risk of re-trafficking, exploitation or serious harm and unable to access the services they need.”

It is, therefore, particularly important that there is clarity in the Bill that public authorities, whose responsibility it is to support trafficked children, treat anybody who may be a trafficked child as such.

My hon. Friend the Member for Brent Central and the hon. Member for Rotherham talked about the quality of age assessment and the related ongoing work. The Government are committed to promoting improvements to the age assessment process. In the interests of safeguarding, it is vital that children should not be managed in adult services and vice versa. The Home Office, the Department for Education and the Department of Health are working closely and constructively with the Association of Directors of Children’s Services, the Office of the Children’s Commissioner for England, the Royal College of Paediatrics and Child Health and other partners to improve the quality of the age assessment process and of age assessments themselves through improved guidance on information sharing, joint working and practice.

I understand the concerns raised here this afternoon and I can confirm that revised local authority practice guidance and a revised joint Home Office and ADCS protocol will be published in the coming months. We understand the need for the guidance to get the processes absolutely right, and I am happy to discuss achieving that aim outside the Committee. We have alternative arrangements in place to ensure that young people who have been victims of slavery are appropriately supported, including where age is in dispute.

Photo of Andrew Stunell Andrew Stunell Democratiaid Rhyddfrydol, Hazel Grove 2:45, 14 Hydref 2014

I see that the Minister is moving on from the point about age assessment. It seems to me a bit of a theme today that there are these conflicts of interest. There is a problem when the assessments are in the hands of people who, if they decide one thing, it will lead to their authority having to stump up a significant amount of money, and if they decide something else, it will not. How does she hope to safeguard victims of slavery from that conflict of interest when the assessments are being drawn up?

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

The pre-legislative scrutiny Committee, of which my right hon. Friend was a very distinguished member, highlighted that establishing age was most difficult for child victims of trafficking. The presumption of age in the clause will apply where a young person is a victim of slavery after they have been trafficked. Where they have not been trafficked and they are a victim of slavery, it should not be as difficult to establish age because they will be UK nationals and there will be records available to assist. Clearly the whole issue of age assessment for all young people is important and needs to be looked at, but I want to keep the discussion today focused on the victims of trafficking where there is this identified problem with establishing age due to the nature of the crime that has been committed against these young people, who are moved from one place to another, usually with false documents.

Although the EU directive and therefore this clause does not extend to victims of slavery, our domestic policy is set out through statutory guidance for local authorities on the care of unaccompanied and trafficked children. This ensures that as soon as any young person becomes looked after, including victims of slavery, the local authority must aim to provide them with all necessary support to offer them the safety and stability  they will require. Ideally this should be provided by offering the young person the chance to form a relationship with a reliable and consistent adult, to support them and to contribute to planning for their care—an issue that we discussed this morning.

The responsibilities of local authorities towards such children should not be hampered by disputes about age. Where a young person’s age is in doubt, they must be treated as a child unless and until a full age assessment, drawing on all available sources of relevant information and evidence, shows them to be an adult. We agree wholeheartedly that age assessments conducted by default would be undesirable. That is why the clause states that the presumption applies only where a public authority with functions under relevant arrangements is

“not certain of the person’s age”.

In most cases there will be no doubt that the person is a child and they will be treated as such; the clause should apply only where there is a doubt about the person’s age. Amendment 104 raises an important issue, but as I have set out, the amendment is not necessary to prevent unnecessary age assessments. At a technical level, the amendment would not materially change the meaning of the Bill.

Amendment 105 seeks to ensure that all those persons who have been determined to be an adult by the appropriate authority but who are challenging that decision should be treated as a child for the duration of the challenge. Although we agree with the sentiment behind this amendment, there would be unfortunate and, I am sure, completely unintended consequences were it to be accepted. Guidance is clear that where the age of a person is uncertain and there are reasons to believe they are a child, they should be offered immediate access to assistance, support and protection. As I mentioned—this is a point on which we agree with the Refugee Children’s Consortium—age assessments should not be a routine part of a local authority’s assessment of a potentially trafficked young person. Age assessments should take place only where the local authority has reason to believe that a person may in fact not be a child.

Local authorities are frequently required to make careful judgements based on findings from professional assessments in a wide range of areas involving child protection and welfare. A difficult balance has to be struck between ensuring that child victims are properly identified and ensuring that public authorities are not unduly hindered in performing their important statutory functions, particularly in cases where the challenge is ultimately judged by a court to be “totally without merit”. Undesirable consequences could result from creating the proposed requirement: for example, a local authority might have to keep someone assessed as an adult in a placement intended for children, which could significantly increase pressure on local authority resources or risk the safety and welfare of other children within that placement. That would be unnecessary if the victim was ultimately found to have been correctly assessed as being over 18.

Given the clarification and explanations I have set out, I hope that the hon. Lady will feel able to withdraw the amendment.

Photo of Sarah Champion Sarah Champion Llafur, Rotherham

I thank the Minister for her approach to the Bill. I believe she is listening to us, and she has clearly researched the area. I appreciate her comments on my amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 43 ordered to stand part of the Bill.