Children and Families Bill

Lord McColl of Dulwich Excerpts

Monday 9th December 2013 Lords Chamber

Moved by

[Lord McColl of Dulwich]

13: After Clause 9, insert the following new Clause—
“Child trafficking guardians for children who may have been victims of human trafficking
After section 26A of the Children Act 1989 insert—“26B Child trafficking guardians for children who may have been victims of human trafficking
(1) A child trafficking guardian shall be appointed to represent the best interests of each child who might be a victim of trafficking in human beings if the person who has parental responsibility for the child fulfils any of the conditions set out in subsection (3).
(2) The child trafficking guardian shall have the following responsibilities to—
(a) advocate that all decisions relating to the child are made in the child’s best interest and, where reasonably practicable and consistent with the child’s welfare after ascertaining the child’s wishes and feelings in relation to those decisions;(b) advocate for the child to receive appropriate care, safe accommodation, medical treatment, including psychological assistance, education, translation and interpretation services;(c) assist the child to access legal and other representation where necessary, including, where appropriate, to appoint and instruct the solicitor representing the child on all matters relevant to the interests of the child;(d) consult, advise and inform the child victim of the child’s legal rights;(e) keep the child informed of all relevant immigration, criminal or compensation proceedings;(f) contribute to identification of a plan to safeguard and promote the long-term welfare of the child based on an individual assessment of that child’s best interests;(g) provide a link between the child and various organisations who may provide services to the child;(h) assist in establishing contact with the child’s family, where the child so wishes and it is in the child’s best interests;(i) where appropriate liaise with an immigration officer handling the child’s case in conjunction with the child’s legal representative;(j) accompany the child to all police interviews; and(k) accompany the child whenever the child moves to new accommodation.(3) Subsection (1) shall apply if the person who has parental responsibility for the child—
(a) is suspected of taking part in the trafficking of human beings;(b) has another conflict of interest with the child;(c) is not in contact with the child;(d) is in a country outside the United Kingdom; or(e) is a local authority.(4) In subsection (1), a child trafficking guardian may be—
(a) an employee of a statutory body;(b) an employee of a recognised charitable organisation; or(c) a volunteer for a recognised charitable organisation.(5) A person discharging duties as a child trafficking guardian shall not discharge any other statutory duties in relation to a child for whom they are providing assistance under this section.
(6) Where a child trafficking guardian is appointed under subsection (1), the authority of the child trafficking guardian in relation to the child shall be recognised by any relevant body.
(7) In subsection (6), a “relevant body” means a person or organisation—
(a) which provides services to the child;(b) to which a child makes an application for services; or(c) to which the child needs access in relation to being a victim.(8) The appropriate national authority—
(a) shall by order set out the arrangements for the appointment of a child trafficking guardian as soon as possible after a child is identified as a potential victim of trafficking in human beings;(b) shall by order set out requirements for the training courses to be completed before a person may discharge duties as a child trafficking guardian;(c) shall by order set out the arrangements for the supervision of persons discharging duties as a child trafficking guardian;(d) shall by order set out the arrangements for the provision of support services for persons discharging duties as a child trafficking guardian; and(e) shall by order designate organisations as a “recognised charitable organisation” for the purpose of this section.(9) A person’s appointment as a child trafficking guardian for a particular child under this section shall come to an end if—
(a) the child reaches the age of 18; or(b) a durable solution for the child has been found based on an individual assessment of the best interests of the child.(10) In this section, a child is considered to be a “potential victim of trafficking in human beings” when a referral has been made to a competent authority for a determination under the identification process required by Article 10 of the Trafficking Convention (Identification of Victims) and there has not been a conclusive determination that the individual is not such a victim.
(11) For the purposes of subsection (10), there is a conclusive determination that an individual is not a victim of trafficking in human beings when, on completion of the identification process required by Article 10 of the Trafficking Convention, a competent authority concludes that the individual is or is not such a victim.
(12) In this section—
“parental responsibility” has the same meaning as section 3 of this Act;
“competent authority” means a person who is a competent authority of the United Kingdom for the purposes of the Trafficking Convention;
“the Trafficking Convention” means the Council of Europe Convention on Action against Trafficking in Human Beings (done at Warsaw on 16 May 2005);
“trafficking in human beings” has the same meaning as in the Trafficking Convention.””

[Lord McColl of Dulwich (Con)]

My Lords, I will begin with the story of a boy from Vietnam whose parents needed to borrow money for essential medical treatment. They were later forced to hand over their son to the gang that had loaned them the money. He was brought to the UK and forced to cultivate cannabis to work off the debt to the criminal gang that had brought him here. I will also tell the story of the girl from Nigeria who was told that she was being brought to the UK to go to school and receive an education. Instead, she was forced to do work around the house where she was held captive. Her passport was taken from her, she was not allowed to leave the house, and she was even made to eat separately from the rest of the household. Not only was she used as a domestic slave and violently beaten, but she was sexually abused by the man of the house and by his friend, became pregnant and was forced to have an abortion.

These are just two of very many stories. Over 500 children and young people believed to be victims of human trafficking were identified in the UK Human Trafficking Centre’s A Strategic Assessment on the Nature and Scale of Human Trafficking in 2012. It is with these children in mind that I move Amendment 13 today.

On 15 February 2012, we discussed a similar amendment during the debate on the Protection of Freedoms Bill. Your Lordships might ask why I am returning to this now. When I moved Amendment 57A of the Protection of Freedoms Bill on Report there was considerable support for it among your Lordships but the Government pressed us not to divide, offering to commission research to evaluate the current arrangements for the care of trafficked children. In the light of these assurances I agreed not to divide. I tabled an amendment to this Bill in Committee and move Amendment 13 today because the evidence produced by the very research commissioned as a result of our first intervention compels us to do so.

The research commissioned by the Home Office following that debate was undertaken by the Children’s Society and the Refugee Council and the resulting report, Still at Risk, was published on 12 September this year. The report demonstrates that what was said during the debate on the Protection of Freedoms Bill in 2012 about the inadequacy of the care was true and remains true today. It echoes the call we made then and make again today for the provision of an independent trusted adult who will work to ensure that each child victim is able to understand their rights, has their voice heard in decisions that affect them and is supported effectively through the different legal processes in which they are engaged. Amendment 13 calls that role a “child trafficking guardian”.

I will first restate the arguments for child trafficking guardians, as I set them out in February 2012, and then consider the findings of Still at Risk. Before I do so, I want to be really clear about the rationale for the child trafficking guardian as set out in Amendment 13. Sometimes we can get into a bit of a muddle when considering the appointment of guardians, thinking that they conduct a role that an existing body or agency should conduct. If the guardian proposal is seen in this way, arguments in favour of it are inevitably seen as a criticism of existing agencies. This, however, is to misunderstand fundamentally the role of child trafficking guardians, which is different from that of any existing actor or agency.

The child trafficking guardian model is based on the UNICEF guidelines and international best practice because the problems that child victims of trafficking experience have remarkable similarities from country to country. Rescued victims are children in a foreign country who have to engage with multiple state agencies such as the courts, the police, local government, education and so on. In each agency they have to deal with a different set of people. They have to retell their painful story again and again. This is disorientating and distressing for the children and in this context of being passed from pillar to post children become alienated and particularly vulnerable to retrafficking.

This is not a distinctly British problem. It is a problem of being a trafficked child in a foreign country and having to engage with different state agencies. The child trafficking guardian solution provides an entirely new role that no existing agency provides. It does two things. First, the child trafficking guardian, while regulated by law, is independent from those state agencies that make decisions about the child’s immigration status or which finance a child’s care. Trafficked children are invariably afraid and tend to distrust authority figures representing the state. A child trafficking guardian can speak to and for the child without any other conflicting interest. Secondly, the child trafficking guardian is not a new level of bureaucracy with which a rescued trafficked child must engage to be processed by the state in addition to the police, courts, local government and so on. Rather, their role is to be a constant in an ever changing world and to accompany the rescued trafficked child as they relate to all the different state agencies. To enable the child trafficking guardian to do this, they have legal recognition so that all the agencies are obliged to recognise them, allowing them to accompany the child. They also have the right to speak on behalf of the child if the child requests it so that the child does not have to repeat their painful stories again and again if they do not want to.

--- Later in debate ---

[Baroness Northover]

My understanding is that they have indeed been consulted, and that consultation will no doubt continue, because it is extremely important that we get this right. The noble Baroness is right to highlight it. I will of course look into this further, and if they have got concerns we invite them to engage with us, because all of us want to get this right.

[Lord McColl of Dulwich]

My Lords, I thank everyone who has taken part in this debate, especially the noble and learned Baroness, Lady Butler-Sloss, and everyone else who has been working on this subject. I am afraid the response is very disappointing indeed, and it does very little to help these poor trafficked children. The guidance does not provide for a child trafficking guardian, and I would therefore like to test the opinion of the House.