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2.8 Children from Abroad (including Migrant Children and Unaccompanied Asylum Seeking Children)

RELATED GUIDANCE

Care of unaccompanied and trafficked children: Statutory guidance for local authorities on the care of unaccompanied asylum seeking and trafficked children (2014)

RELATED CHAPTER

For children who may have been trafficked, please see the separate procedure Safeguarding Trafficked Children Procedure.

See National Contact Details for contact numbers and addresses, which are possible sources of information, including the Children's Legal Centre which includes the Refugee Children's Rights Project and the Migrants Children's Project.

See also Cross-Border Child Protection Cases Under the 1996 Hague Convention Procedure.

AMENDMENT

In March 2016, Section 6, Establishing the Child's Identity and Age was updated with links to good practice guidance with regards to age assessment and information sharing. These have been produced by the ADCS and the Home Office.


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. Child’s Developmental Needs
  11. Parenting Capacity
  12. Family and Environmental Factors
  13. Children in Need of Safeguarding

    Appendix 1 - Legal Status


1. Introduction

Large numbers of children arrive in 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

  • 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 to safeguard and promote the welfare of children and young people from abroad. It is important to note that regulations and legislation in this area of work are complex and subject to constant change through legal challenge. This guidance, therefore, intends only to reflect broadly the additional issues faced by families. All practitioners need to be aware of this context to their contact with such families. Legal advice about individual cases will usually be required by Children's Social Care Services.

A small number of children may be exposed to the additional risk of commercial, sexual or domestic exploitation. See also the chapters for Safeguarding Children and Young People from Child Sexual Exploitation and Safeguarding Trafficked Children.


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:

  • Never lose sight of the fact that children from abroad are children first - this can often be forgotten in the face of legal and cultural complexities. Care of unaccompanied and trafficked children: Statutory guidance for local authorities on the care of unaccompanied asylum seeking and trafficked children (2014) provides that where the age of a person is uncertain and there are reasons to believe that they are a child, they are presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Article 10(3) of the European Convention on action Against Trafficking in Human Beings. 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. Where age assessments are conducted, they must be Merton Compliant;
  • 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 actively 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

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. (See Statutory Guidance issued in November 2009 for the UK Border Agency for main arrangements to safeguard and promote the welfare of children).

They are likely to be in a position to claim asylum and this should be arranged as soon as possible if appropriate. They are the responsibility of Children's Social Care Services to support until they are 18 years of age, (Section 20 of the Children Act 1989 and if they have been looked after for a minimum of 13 weeks see Section 23(6) of the Children (Leaving Care) Act 2000).

If their asylum claim is not resolved before they reach 18 years old, they are generally supported by the United Kingdom Border Agency or continue to receive support from the Local Authority under S23c of the Leaving Care Act.

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 Social Care Services will have responsibilities towards them if they are assessed to be In Need, in which case support and accommodation can be provided by Children's Social Care Services for the child, and may in limited cases also be provided for the family, if otherwise the family would be destitute. In addition, Children's Social Care Services will have responsibilities towards the child if he or she is Privately Fostered. However, if close relatives care for the child, Private Fostering Regulations may not apply.


5. Identification and Initial Action

Whenever any professional comes across a child who they believe has recently moved into this country the following basic information should be sought:

  • Consideration of the child's age;
  • Confirmation of the child's identity 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 Social Care Services should be notified in order that an assessment can be undertaken.

The immigration status of the child's family has implications for the statutory responsibilities towards them. It governs what help, if any, can be provided to the family and how help can be offered to the child.

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

Children who disappear, where there are concerns about the child's welfare should be considered to be missing and the Children and Families who go Missing Procedure should be followed.


6. Establishing the Child's Identity and Age

Care of unaccompanied and trafficked children: Statutory guidance for local authorities on the care of unaccompanied asylum seeking and trafficked children (2014) provides that where the age of a person is uncertain and there are reasons to believe that they are a child, they are presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Article 10(3) of the European Convention on action Against Trafficking in Human Beings.  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. Where age assessments are conducted, they must be Merton Compliant.

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. 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.

As the issue of age assessment in social work with asylum seeking young people remains controversial the ADCS (Association of Directors of Children’s Services) Asylum Task Force has worked with the Home Office to provide two new jointly agreed documents, as detailed below. These documents are offered as practice guidance, by way of assistance to local authorities and their partners. The use of the proforma and consent form is voluntary. The content does not, nor does it seek to, be binding on local authorities. It is simply a recommended approach.

The advice of a paediatrician with experience in considering age may be needed to assist in this, in the context of a holistic assessment. However, the High Court has ruled that, unless a paediatrician's report can add something specific to an assessment of age undertaken by an experienced social worker, it will not be necessary.


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 established 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 Child Arrangements 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. Children who do not have someone with parental responsibility caring for them can still attend school, and schools should be pragmatic in allowing the carer to make most decisions normally made by the parent.

Such children are 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 should be given if required. However, should the child need medical treatment such as surgery or invasive treatment in a non life-threatening situation, the need for consent will become an issue and legal advice will be required.

Carers/parents are not eligible to claim benefits for their child unless they have both 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 Social Care 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 where it is assessed as safe to do so.

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

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


9. Assessment

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. See Assessment Protocol for more information.

Such children should be assessed as a matter of urgency as they may be very 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 with which the professional is totally unfamiliar or has only basic knowledge about.

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 shares more than a common language, and is professionally trained. They can sometimes be a rich source of information about traditions, politics and history of the area from which the child has arrived. They may be able to advice 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 Social Care Services, and that it is not an extension of the police;
  • 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;
  • Past Trauma - Past Regime/experiences can impact upon the child's mental and physical health. This experience can make concerns from the Authorities about minor injury or poor living conditions seem trivial and this mismatch may add to the fear and uncertainty;
  • The journey itself as well as the previous living situation may have been the source of trauma;
  • The shock of Arrival - The alien culture, system and language can cause shock and uncertainty, and can affect the mood, behaviour and presentation.

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.

Within the first contact with the child and carer(s), it is however also 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, particularly to check out the stated relationships with the person accompanying them. (Someone allegedly from the same place of origin should have a similar knowledge of the place, for example). Clearly the professional is going to be seen as in "power" and as such a child may believe that they must "get it right" when they may not wholly understand the system or even the question.

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


10. Child's Developmental Needs

Things to bear in mind 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 may need to be considered, including HIV, Hepatitis B and C and TB. (this applies to the parent/carer also);
  • Education. What has school meant to this child?
  • Self - care skills. Not to judge competence by comparing with a child of the same age in this country. This child may have had to be very competent in looking after themselves on the journey but unable to do other basic tasks. In some countries, some children will have been working or have been involved in armed conflict. Loss of a parent can enhance or deprive a child of certain skills. Having had to overcome extreme adversity can result in a child who is either deeply troubled or both resourceful and resilient;
  • Identity. Who is this child? What it their sense of themselves, their family, community, tribe, race, history?
  • Physical appearance. Life experience and trauma can affect this. Lack of nourishment may make the child present as younger or older;
  • Perceptions of what constitutes disability are relative and attitudes towards Disabled children may be very different;
  • The impact of racism on the child's self-image and the particular issues currently faced by asylum seeking children and their families.


11. Parenting Capacity

Things to bear in mind 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 seems to have been given up 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;
  • Talking about parents/family can be stressful and painful - but not being given the chance to do so regularly can also be damaging;
  • Importance of the extended family/community rather than a Eurocentric view of family;
  • Do not presume 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 corrosive impact on parenting capacity of racism against asylum seekers;
  • The additional issues 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.


12. Family and Environmental Factors

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

  • Family history and functioning may include the loss of previous high status as well as periods of destitution;
  • Different concepts of who are/have been important family members and what responsibility is normally assumed by the whole community, e.g. who a child should reasonably be left with.


13. Children in Need of Safeguarding

Where the Single Assessment indicates that a child may be suffering or likely to suffer Significant Harm, the child's welfare must be promoted and these procedures apply. See Referrals to Children’s Social Care Procedure

During the assessments, additional factors need to be taken into account. These dilemmas include such things as:

  • 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 is a real threat of deciding to prosecute;
  • Balancing the impact of separation on a child with the likely history of separation/disruption;
  • Judgements about child care practices in the context of such different cultural backgrounds and experiences.

Independent Family Returns Panel

Under s. 54A Borders, Citizenship and Immigration Act 2009 (inserted by s.3 Immigration Act 2014), the Secretary of State must consult the Independent Family Returns Panel in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.

A family returns case is a case where a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, together with their parent/carer. 

Pre-departure accommodation is a secure facility designed to be used as a last resort where families fail to co-operate with other options to leave the UK, such as the offer of assisted voluntary return.

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 care may be invited to contribute to the Panel.

The National Referral Mechanism

If there are concerns that a child is a victim of trafficking the practitioners will need to inform the National Referral Mechanism, which is a framework for identifying victims of human trafficking or modern slavery and ensuring they receive the appropriate support. The child’s details should be provided using the forms available on the NCA National Referral Mechanism website. (The tick box matrix in section C has been designed to save time in completing the form by providing recognised child trafficking indicators which can be marked quickly and expanded upon in Section D). 

Click here to view the relevant forms on GOV.UK website.

Since the 31st July 2015, all UK referrals, to the NRM Competent Authority (trained decision makers) must consider whether the person is a victim of human trafficking. In England and Wales, if someone is found not to be a victim of trafficking, the Competent Authority must go on to consider whether they are the victim of another form of modern slavery, which includes slavery, servitude and forced or compulsory labour. This relates to the Modern Slavery Act 2015.


Appendix 1 - Legal Status

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

To be eligible for a service, a young unaccompanied asylum-seeker must be seeking asylum in the UK and have no relative/supporting adult willing to take responsibility for him or her. Where such young people are provided with services, they will continue to be eligible for a service from the local authority where they  are granted  refugee status, humanitarian protection  or unaccompanied asylum seeking children leave to remain, which may continue up to their 18th birthday.

The level of support given by the United Kingdom Visas and Immigration Service 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 carer. 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 pre-existing 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 UK Visas and Immigration Service.

Relevant pieces of legislation

Nationality Immigration and Asylum Act 2002 (NIA)

Section 54 is intended to discourage the concept of 'benefit shopping' within Europe. It 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 Act and Section 17 of the Children Act, 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 UK Visas and Immigration 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 the UK Visas and Immigration Public Caller Unit by Children's Social Care Services in order to register the claim with the Home Office. The family may then be able to access UK Visas and Immigration support.

Serious Crime Act 2015.

An offence of sexual communication with a child  has been introduced by the Serious Crime Act 2015. This applies to an adult who communicates with a child and the communication is sexual or if it is intended to elicit from the child a communication which is sexual and the adult reasonably believes the child to be under 16 years of age. The Act also amended the Sex Offences Act 2003 so it is now an offence for an adult to arrange to meet with someone under 16 having communicated with them on just one occasion (previously it was on at least two occasions).

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