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Borders, Citizenship and Immigration Bill [HL]

Volume 708: debated on Wednesday 4 March 2009

Committee (Third Day) (Continued)

Clause 51: Duty regarding the welfare of children

Amendment 112

Moved by

112: Clause 51, page 41, line 16, leave out “who are in the United Kingdom”

Clause 51 brings in a duty regarding the welfare of children in the carrying out of immigration and nationality functions. We certainly welcome this duty to act in regard to the welfare of children. We feel that it would have been even better if the new Bill incorporated the key sections of the UN Convention on the Rights of the Child. However, we certainly welcome the recognition in this clause of the importance of including those functions.

The purpose of my amendment is to see the extent of this duty. My amendment would insert the words,

“who are in the United Kingdom”,

as it is not clear whether the clause covers the UKBA staff based abroad, immigration functions at juxtaposed controls, entry clearance points and escorted removals from the UK. Of course, the clause is modelled on Section 11 of the Children Act 2004, which, interestingly, is not restricted to children who are in the UK. The inclusion of this caveat might be because the Government continue to be very worried that if they make this clause any stronger and have a need to safeguard and promote the welfare of children beyond a point that they remain in the UK, it might impede UKBA staff from carrying out their immigration functions; for example, removing a child and their family from the UK at the end of the asylum process if their claim has failed and their appeal rights have been exhausted.

We do not think that such a fear is founded. The Government’s own admission is that that would not be the case because during the passage of the Section 11 legislation, to which I have just referred, Ministers stated in the House,

“We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions".—[Official Report, 17/6/04; col. 995.]

The exploration of exactly what the Government mean is important when it comes, for example, to the forcible removal of unaccompanied asylum-seeking children to their countries of origin. That has raised a number of issues. Although it is not always easy to obtain information on exactly what happens in such cases, they continue to cause some concern. I hope that the Minister will be quite clear on the extent of this clause and on the functions of UKBA, which it will cover. I beg to move.

I have put my name to this amendment because it is extremely important, bearing in mind the responsibility of British officials who are serving, for example, in consular and other posts overseas and should understand all the issues involved. In particular, if you go through the implications of the amendment, the training of people in the issues concerned with children is important for those officials as well. I understand that the Home Office has suggested that this amendment might be inappropriate because it might suggest that British officials overseas should involve themselves in such activities as the exploitation of children in employment in certain factories and so on. That is not the point. The point is that all people who deal in any way with children being returned from the United Kingdom should understand all the issues, including those to do with child safety, so that they can give proper advice to those who are responsible for making decisions in this country, which makes the training and understanding of those people all the more important.

I, too, have added my name to this amendment. There should be a requirement to care for children in transit. There is a danger that children who are passing through the country may not get quite the same attention from the border agency as others who are coming in. That might be helpful.

I agree with my noble friend Lord Ramsbotham that it would be better to leave out the words,

“who are in the United Kingdom”.

However, the noble Baroness, Lady Hanham, has made a very important point about transit. In the past year or two there have been more suspicions and perhaps some actual proof of children being trafficked into or through Britain for purposes of benefit fraud. This is a fairly new kind of trafficking, which I ask the Government to take very seriously.

I wish to underline what my noble friend said about the juxtaposed controls. That is particularly important, bearing in mind the powers of officials to detain any person in the juxtaposed controls, the Channel ports, where people, including children, may be questioned and detained for a certain length of time. The juxtaposed controls are so important because oversight of them is less intense. I think I am right in saying that the chief inspector has once been to look at them. They do not have the same intense scrutiny by the voluntary agencies that places of detention in the United Kingdom enjoy. The risks to a child of being ill treated in such a place, where a lot of the staff contractors employed by the Secretary of State are not direct UKBA officials, must be accentuated.

I am really puzzled as to why it was thought necessary to confine this obligation to the United Kingdom. I should be grateful if the Minister would explain how the UK Border Agency code of practice for keeping children safe from harm applies in the juxtaposed controls as it does in the United Kingdom.

I, too, am keen to support this amendment and I raised the issues at Second Reading. A lot of points have already been identified. Clearly, to have on the other side of the border, from which various people will want to come into this country, staff who are not as well educated and trained to have proper regard for the welfare of the child—I agree entirely with my noble friend on that point—as we are all now rightly required to do, can be very dangerous. I hope, with other noble friends, that either this can be explained to our satisfaction or that the Government will go and think carefully about removing a quite small phrase. It is, however, an important phrase because all of our officials should be having regard to the welfare of the child, and all of us are pretty worried about the number of children who have entered this country. We do not know the numbers or why they are here but mostly, whether for benefit fraud or whatever, it is not for very desirable reasons.

I was unable to speak at Second Reading, but I thank the Government for recognising the importance of the amendment that we won last year during the passage of the Children and Young Persons Act 2008, and for bringing forward a duty in this Bill,

“to safeguard and promote the welfare of children”.

We won by a resounding number, because it was the right thing to do.

However, I share the concerns of the noble Baroness, Lady Miller, and my noble friend Lady Hanham that these amendments express: that duty should not just apply to children who are in the UK but have equal application to children who come into the sphere of activities of the UK Border Agency staff abroad or when a child is in transit, particularly as it could enormously help the identification and early support of trafficked children. We should never underestimate the high regard in which this country is held. That extends to our embassies, to the British Council and to all other agencies of the state operating beyond our shores, where people would, quite rightly, expect to be treated with courtesy and consideration—and that should be especially true of children.

During the passage of the Children and Young Persons Act, I met an exceptional young man from Afghanistan. His parents saved all the money that they could, then they sent him, with a group of others, to England to live a safer life—and who could blame them? He was 15, and it took him a year and a half to walk most of the way to England. He is now in care, flourishing and enjoying school, and wants to be a doctor. For all of the children and young people who, for whatever reason, find themselves in his position, I should like to think that their experience of Britain will be good and positive, and that they will be properly looked after—wherever and for however long they are in our care.

I apologise to the Minister and to your Lordships, for the Minister helpfully arranged a timely meeting with Jeremy Oppenheim, the Children’s Champion, earlier this week. It was arranged at fairly late notice late last week and I was involved in a conference and visiting a children’s home outside London. I would very much have liked to have contacted some Members of the Committee so that they could have been at that meeting and heard the responses from Jeremy Oppenheim. Some of tonight’s debate might perhaps have been curtailed in consequence. I apologise to the Minister and I am most grateful. The meeting was extremely helpful.

It became apparent at Second Reading that, in terms of intent, we all feel this clause to be our own—I think that the noble Baroness, Lady Morris, referred to that—so I can be sure that it is generally welcomed and the right way to go. I understand that these probing amendments define some of the details and I welcome the opportunity to debate this important clause, which places a duty on the Secretary of State to ensure that immigration and customs functions are discharged,

“having regard to the need to safeguard and promote the welfare of children”.

Subsection (4) places a similar duty on the Director of Border Revenue.

I begin by considering Amendments 112 and 114, since they both seek to extend the duty to children outside the United Kingdom. As your Lordships know, Clause 51 seeks to replicate the effect of Section 11 of the Children Act 2004, which already applies such a duty to a range of public bodies including local authorities, the National Health Service, the police and youth offending teams. Section 11 applies only to England, whereas the duty in Clause 51 applies throughout the United Kingdom, which sensibly reflects the geographic extent of the jurisdiction of the UK Border Agency.

However, these amendments seek to take the duty a step further, and to require the border force to discharge its functions having regard to the welfare of children not just in the UK but worldwide. On the face of it, this may seem an attractive proposition but it is not practical. The duty in Clause 51, supported as it will be by guidance which we will discuss later, is based on the systems in place in the United Kingdom and cannot simply be transplanted to other countries, which may have entirely different arrangements. Moreover, it is likely that those countries would consider it to be interference in their jurisdiction if the UK border force were to seek to assume the same level of responsibility for local children as it would for children in the United Kingdom.

We think, therefore, that our formal responsibilities under this duty have to be confined to children who are in the United Kingdom. This common-sense approach is in line with, for example, the United Nations Convention on the Rights of the Child, which also limits the responsibilities of state parties to children within their jurisdiction.

However, we accept that UK border staff have a responsibility to take appropriate action if, in the course of their duties, they come across children overseas whom they believe to be at risk of harm. They might, for example, be suspicious that a visa application for a child was being made for the purposes of trafficking. If harm is suspected, we would expect the staff to inform the local law enforcement authorities and/or deny a visa, as appropriate.

The UKBA introduced a statutory code of practice for keeping children safe from harm, which came into force on 6 January. That code sets out the expectation that the border force staff overseas will make referrals to overseas authorities where local or other international agreements permit or require it.

Amendment 112A seeks to ensure that the duty in the clause applies to children whose presence in the United Kingdom is for the purpose of transit to another country. I remind the Committee that the duty will apply to any function carried out in relation to immigration, asylum, nationality and any general customs or border revenue function carried out on behalf of the Secretary of State. This will include the handling of children whose contact with the border force is as passengers who are in transit through the UK and who seek a short stay of 48 hours to accomplish that.

Passengers who are in direct transit and transferring straightaway to a connecting flight do not need to seek entry to the UK and no immigration function is carried out. The duty would not therefore apply in those circumstances, although the staff will of course involve the police if there are reasonable grounds for believing a child in these circumstances to be at risk of harm.

The noble Baroness, Lady Miller, asked about the extent of Section 11 of the Children Act. As I mentioned, that applies only in England, whereas this provision applies across the whole of the United Kingdom. The noble Lord, Lord Ramsbotham, asked about training of officials—quite rightly so. Children’s needs feature in the training that we give to entry clearance officers overseas, who also receive briefings from the International Organisation for Migration on trafficking awareness. The noble Lord, Lord Avebury, asked how the UKBA code applies to juxtaposed controls. Section 1.13 states:

“UK Border Agency staff overseas will also refer children to the authorities of other countries where local or international agreements permit or require”.

This applies in particular to juxtaposed controls when agreement exists with the French authorities, as the noble Lord mentioned. I hope that, in the light of that clarification and those answers, noble Lords will be content not to press their amendments.

I thank all those who have spoken. I thank in particular the noble Baroness, Lady Morris of Bolton, for reminding us that we do these things because they are right, particularly with regard to children. I still have some queries, because I had understood that Section 11 of the Children Act applies to any authority—for example, the police—which has to escort a child, even though it may be overseas. Perhaps the Minister will tell me whether I am wrong about that. The noble Earl, Lord Listowel, has obviously heard a great deal that we have not. Perhaps I should be reassured by that, because he is usually very questioning, but sadly I am not entirely.

There are still a couple of areas that I am concerned about. One is that the Minister did not mention the issue of private contractors. I am sure that they are covered by the provisions and await his assurance that they are. I raised the issue because some of the most extreme cases of which I have heard, although I have not observed them myself, have been of the dawn raids and removal of families, of course including children, for whom it is traumatic to be taken from their beds at four in the morning with their family and taken away in the dark in a van. I should think that that runs counter to this clause; I do not think that it will comply once the Bill has gone through.

Will the Minister reassure me on the issue of private contractors as well as the dawn raids for deportations? I will read carefully what he said and will take the opportunity to talk further to the noble Earl, if he is happy to do so, about his view on this. We may return to the matter on Report, but I shall leave a little gap before I withdraw it to see what the Minister has to say on those two points.

I assume that the noble Baroness is talking about a “dawn raid” in this country; of course, this Bill covers anything that happens in this country. Our responsibility for looking after children is covered by that, because it is taking place in this country. As for escorting children overseas, when it is carried out by UKBA staff or contractors, the duty will apply. What we cannot do is require the duty to apply on the soil of another territory. That is where the difficulty lies.

To my knowledge, Section 11 applies only in England. If it is different from that, I shall come back on that. But as I understand it, that is where it lies.

I shall just probe the Minister a little further about the juxtaposed controls. Here you have a situation that is unique, in that the children are in the custody of the UKBA. Certain powers have been granted to the UKBA by agreement of the French and Belgian authorities; they allow us to detain, to question, to search, and so on, those persons who come under the juxtaposed controls. That includes the children. If all those functions have been transferred from the state that has jurisdiction, why could they not transfer also the obligations to safeguard welfare of the children?

All I can say—and I cannot go into detail on that—is that UKBA staff have to refer to the authorities of other countries in those juxtaposed control conditions in France. I can write to the noble Lord on the detail of that, but that is the situation as it stands at the moment. As for private contractors, the answer is that, yes, these provisions include them at Clause 51(1)(b).

I shall just probe a little further on this. Is the Minister saying that if, on the other side of a border, in another country, embassy staff are suspicious that there may be an ulterior motive in some of the trafficking that is going on involving children, they would alert people at this end? Will they be trained sufficiently to do just that, so that as, when or if any of those individuals and children come over, border staff will be sufficiently alert to deal with the situation? Are we satisfied that that is happening now? If not, what is in this Bill that will make it more effective?

The position as regards children abroad, as I say, is that our people are trained and taught what to look for. If they see something that they feel is wrong happening with a child, they will contact the authorities if the country that they are in is one where we are able to deal with the authorities and let them know that it is happening. In other words, the country would not be in the category of those where one would, perhaps, not want to mention it in case it ended up being worse for the family and child. They have to be countries that we have agreements with. Clearly, when it comes to something such as getting a visa, or anything that applies in this country, all these rules apply. There is a whole raft of different conditions—such as other conditions in the Children Act—that apply. We will come to them in later amendments. They cannot possibly all be applied on someone else’s territory; we would feel rather annoyed if someone in this country started handling children on UK territory in the way that they felt was right under their law. We would be upset by that. All that we are saying is that we cannot do that.

I can accept what the Minister is saying and I am sorry to have to labour the point. However, what if, for example, a child abroad has made an application through a consular post? In such a case, a refugee’s children—who are minors—may make an application for family reunion. They would apply to join a parent who had been accepted as a refugee by the UK. In cases such as the one that we are being told about, it has taken several years of litigation before a challenge to the refusal to the child succeeded. During this time the children suffered severe psychological and physical ill health. That happened on the soil of another country, but the consular post is dealing with that application. That is not really interfering in the affairs of the country because it absolutely has to do with the child’s application to this country. That is one reason why we want to look into this a little further before Report.

It would also be tremendously helpful if the Minister could send a note to tell us how, when families—including children—are taken from their own homes to detention centres or aeroplanes, that will work with the new Clause 51. Will there still be dawn raids? If so, will there be additional safeguards? Will they no longer exist because Clause 51 will preclude them? Could the Minister think about sending us some notes on what the new guidance will be when Clause 51 comes in?

I do not see any problem with that. I think we will come to more of the details in other amendments. If, after that, the noble Baroness would still like a note, I have no difficulty in sending one with those details. Maybe I have not been clear about the situation in which this applies. Whether the duty applies is absolutely determined by whether the child concerned is in the UK or overseas. The location of the border staff exercising this duty is immaterial; it is a matter of where the child is. For example, a grandmother could apply for a visa to travel to the UK to care for a sick grandchild. Because the child is in the UK, the border force would have to consider the application, having regard to the need to safeguard and promote the welfare of the child. This would be the case despite consideration taking place outside the UK. It depends on where the child is.

I thank the Minister for that. I realise that we may go over some of this detail again later but I am sure that, in any case, we will welcome the sight of some draft guidance on this. I will mull over everything that has been said and look again at any gaps, if any still appear after I have reread what the Minister has said.

Before the noble Baroness withdraws the amendment, may I make one remark? This is clearly a complex matter. I am a little concerned that, at this stage of the Bill, we may be making quite definite interpretations of what this clause means. This might be seen by others as setting a precedent and setting out quite clearly what needs to be done. Perhaps it is indeed better for us to come back to this. I think of this in particular with regard to whether the duty operates with a child on our soil or another country’s soil. I can imagine a situation, for instance, of a school party going abroad and the teacher still being bound by Section 11 of the Children Act. If UKBA officials were dealing with the child in Calais they might still be bound by the safeguarding elements in the Bill. I am a little concerned that we should wait until the next stage of the Bill to look at this a little more closely.

I share the noble Earl’s concern. I am sorry that I did not acknowledge that fact but I am delighted that he was able to have that briefing. This is a complex area and having a briefing like that is useful because it lets one see the broad perspective. I hope it was useful.

I absolutely agree that this is a complex area. That is why it would be a shame to curtail this discussion and not have it again on Report. Any additional information the Minister can send to us in the mean time will be welcome. I beg leave to withdraw the amendment.

Amendment 112 withdrawn.

Amendment 112A not moved.

Amendment 112B

Moved by

112B: Clause 51, page 41, line 24, at end insert “including the prevention of trafficking of children”

I hope that the Minister will be able to accept these amendments today because they reflect a most serious concern that has already been referred to—the trafficking of young children. The first two amendments in this group can be seen as providing belt and braces support for Amendment 117B. That amendment effectively inserts into the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 the additional considerations that a person is being exploited if he or she is under 18 and in a position of vulnerability or subject to an abuse of power.

It has not been easy to get this clause into the Bill, but this is the most effective of closing the loophole that the Government have allowed to arise in the protection that the law provides for very young children. I thank other noble Lords and outside organisations, including the Immigration Law Practitioners’ Association and the Refugee Children's Consortium, for their work in this area and for their briefing.

There is a very real and dangerous loophole that I want to explain to the Committee, but I want to make the point that while we applaud the Government for carrying forward Clause 51, which is largely thanks to my noble friends on the Opposition Benches, none of us can say that this Bill fully covers the welfare of children unless we look at the lacuna that has arisen in the present law. I know that the Government share absolutely the aim of protecting the youngest and most vulnerable members of society because they have told us that on innumerable occasions. It is my fervent hope, therefore, that the noble Lord will take on board what I and other Members of the Committee have to say and accept these amendments.

If we return to the debate on the 2004 Bill, now the Act, when the provisions on the trafficking of children in what is now Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 were being debated, we can chart the course of this story. The Government accepted that their original drafting of that Bill was inadequate to deal with the trafficking of babies and young children and, potentially, other people with special vulnerabilities. The Government amended the Bill to address that. It was considered at the time by some in this House that the government amendment, which is now part of Section 4 of the Act as passed, was inadequate and hence an amendment was tabled to address that.

At Report in your Lordships' House on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 my noble friend Lady Anelay raised the risk of a lacuna and was supported by many other noble Lords. The concern then, as now, was that the trafficking provisions were suitable to help only those people who were in a position to know that they were being trafficked. The noble and learned Baroness, Lady Scotland of Asthal, offered an assurance that the Government did not think that the lacuna existed; and said that in any case the courts would be able to construe Parliament’s intention. The noble and learned Baroness referred to the doctrine in Pepper v Hart 1993, AC593, which held that a reference can be made to ministerial statements in Hansard only if legislation is ambiguous. Under the Pepper v Hart doctrine, if it is not ambiguous, the courts cannot look at the case.

It seems that the existing legislation is not ambiguous: it covers only those people who are aware that they are being induced or coerced. A baby, or a very young or vulnerable person, cannot be in that position. They fall foul of a loophole in the law. The Crown Prosecution Service does not consider that the existing legislation allows it to prosecute in certain cases of child trafficking.

The result of this can be seen in the Peace Sandberg case. Noble Lords may remember that on 16 May 2008, Peace Sandberg was jailed for 26 months at Isleworth Crown Court after being found guilty of facilitating illegal entry into the United Kingdom. The illegal entry in question was that of a baby, believed to have been purchased in Nigeria, allegedly so that Miss Sandberg could claim to qualify for priority housing in this country. Importantly, Miss Sandberg was not prosecuted for trafficking, because it was concluded that Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was inadequate to capture the trafficking of babies and very small children.

That is the situation that our amendment is designed to prevent. It is no good to say that offenders will be caught and prosecuted for another offence, as in the Peace Sandberg case, because we cannot always know that that will be the case. There is a problem with the existing law: many organisations say so. Our amendments would fix that problem. They would ensure that babies and young children are covered by the Act. I feel sure that no one on any Bench in your Lordships’ House would argue against strengthening the Bill in its protection of the most vulnerable. We are dealing with a disgusting crime and I feel hopeful that the Minister will accept our proposals. I beg to move.

In the previous group of amendments, perhaps I should have mentioned that when children are trafficked for the purposes of benefit fraud, often they may be disguised as children travelling in the care of a relative. That is another instance where great vigilance is needed.

Amendment 117B in this group is important. Members of the Committee, as well as the Government, will be aware of cases, usually in the London area, where young people have been imported, mainly from Vietnam, as forced and exploited labour for cannabis-growing houses or plastic domes. I hope, but do not know, that the police have this form of crime more or less under control. If they have not, the amendment could be helpful in dealing with it.

I, too, also support the amendment. It may well be that it can be explained in a way that will satisfy all of us who are concerned about the whole issue. The way in which the noble Baroness, Lady Hanham, explained the issue and the history leading up to it reminded me very much of the debate we had on it at that time. We would therefore want a fairly specific answer to it.

We on these Benches are grateful to the noble Baroness for tabling the amendment. Although we will not know exactly how many young children and babies, in particular, are trafficked, the Minister may have in his briefing the number of prosecutions that there have been and the penalties given to the prosecuted traffickers. Giving us an idea of the scale of prosecution would be helpful. I certainly have no idea about that at the moment.

I speak to Amendment 116; I hope that I am not speaking out of place. It might be interpreted as also including those children and young people about whom there is some uncertainty as to whether they are children or adults. This has been a bone of contention for a long time. I look to the noble Lord, Lord Avebury. It may be better to save this for a later debate. Very good; I will.

I am grateful to the noble Baroness and to other Members of the Committee for seeking to ensure that the duty will apply to any work done by the UKBA to prevent trafficking of children. Such is the purpose of the two amendments here, as well as an amendment seeking to apply the duty to all children.

On Amendment 112B, human trafficking, as the Committee agrees, is an appalling crime. Our overall aim is to make the United Kingdom a hostile environment for trafficking and to protect its victims. The United Kingdom therefore adopts a victim-centred approach to combating trafficking, including child trafficking. This is embodied in the UK Action Plan on Tackling Human Trafficking, updated in July 2008, which has a specific chapter on child trafficking and their care. The duty to safeguard and promote the welfare of children applies to all children in the UK encountered by the UK Border Agency in the discharge of its functions, which includes the prevention of trafficking and enforcement activities.

On December 17 2008, we ratified the Council of Europe Convention on Action against Trafficking. This sets out minimum standards of care for victims of trafficking. Within that, we are giving specific consideration to the needs of child victims. We are also compliant with other relevant international instruments, including the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and the EU framework decision on trafficking which sets out EU legislation on this issue and also has a focus on child victims and their welfare.

While immigration considerations are important, trafficking is a much wider issue. Human trafficking is viewed primarily as a serious organised crime by international bodies such as the UN, by the UK Government and by law enforcement agencies such as the Serious Organised Crime Agency, for which combating organised immigration crime, including human trafficking, is their second-highest priority. It therefore includes, but is not limited to, immigration considerations.

An amendment to include combating trafficking in the list of immigration functions of the Secretary of State is therefore not appropriate. However, it is also not needed. We already take a victim-centred approach to combating trafficking. I trust that the noble Baroness will be content to withdraw the amendment.

The second amendment seeks to say that all children in the United Kingdom will be included in the duty. The amendment is unnecessary because the current definition already applies without any qualification or reservation to all persons under the age of 18. I should like to reassure Members of the Committee that we have no intention of treating children in the immigration system any differently from other children in the UK. Quite the opposite; we have said on numerous occasions that every child matters as much if they are subject to immigration control as if they are British citizens. To that end we have deliberately adopted the definition of children in the Children Act 2004 to achieve parity with the duty in Section 11 of that Act. Perhaps I may remind your Lordships that Section 65(1) of the Children Act 2004 states that “child” means a person under the age of 18, and we have used the same definition. The duty proposed in the Bill is therefore already a general duty that applies to all children. The amendment is not needed for it to be fully effective.

The third amendment covers a serious situation, but it is perhaps not the most appropriate means of preventing the wrong that is intended. Human trafficking is not limited to sexual exploitation, and the Government are committed to tackling it in all its forms. Section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 criminalises the trafficking of people, including children, for non-sexual exploitation. Concerns that young people might not be sufficiently protected were raised at that time, and the Act strengthened. Section 4(4)(d) of that Act makes it an offence to arrange or facilitate the entry into the UK of a young or vulnerable person with the intention of requesting or inducing actions of benefit to another person, that a person with the advantage of age would most likely refuse. This involves the Peace Sandberg case that the noble Baroness, Lady Hanham, was referring to, which fits directly into that.

This ensures we cover exploitation without curtailing legitimate activity. The amendment before us is unsatisfactory because it defines as exploited any child who is in a position of vulnerability. Therefore there is a risk, and it could easily be done this way within law, of criminalising legal activities, such as bringing children to the UK for altruistic purposes, to participate in competitions, cultural visits, choirs and so on.

The Government understand the concerns behind the amendment. We have some sympathy with that, and have previously committed to keeping the legislation on human trafficking under review. We intend to look into this matter further and address any situations where exploitation takes place in a trafficking context, but is not covered by the offence, as part of our considerations of the forthcoming Bill to simplify and consolidate immigration legislation. We aim to publish this in draft before the end of this parliamentary Session. There will be an opportunity for consultation on particular issues. On this basis I hope that the noble Baroness will feel able to withdraw her amendment.

I was trying to not go on for too long, because I was looking at the clock. The figures are 103 for sexual trafficking, seven for labour trafficking, three for conspiracy to traffic—a total of 113 up to February this year since the Sexual Offences Act 2003 came into force.

I thank the Minister for that—that is heartening. Perhaps he would like to also publish at some point the sentences that those people received. Can he give me an assurance that the trafficked children—even if they were working in the circumstances described by the noble Lord, Lord Hylton—are never prosecuted, because they are, as the Minister correctly said, the victims of trafficking?

While I am not aware of the specific issue that the noble Lord, Lord Hylton, raised about the cultivation of cannabis, that is a criminal offence. If the police were to encounter children in that situation, they would pursue the culprit who was doing that and safeguard the children they found.

I am enormously disappointed with the Minister’s reply. As he read out his brief he might have anticipated that I was going to be disappointed. I found the response bland and I found it completely unsympathetic to the points that were being raised. There seems to be an absolute lack of comprehension of the reason behind this amendment. It has been found that you cannot prosecute for the trafficking of babies—which happens—and the very young child who cannot be in the position to know they are being trafficked. They are being exploited, not necessarily for drugs, but they may very well be being exploited for sale, adoption or another reason.

This is so important that there is no question that I will not come back to it. We are being advised strongly by people who represent those who have to deal with this problem and who understand the legal situation that the law is not strong enough. The law cannot do what it says it is meant to do. Simply, for the Minister to think that I will walk away from this is probably to misunderstand me. We will not walk away from this; we will come back to it on Report. If, in the mean time, the Minister would like his officials to help us to get an amendment that will absolutely close this loophole, I will be very happy to discuss it with anyone. If we do not get that situation, we will divide the House, and I think that we will win. For today, I beg leave to withdraw the amendment.

Amendment 112B withdrawn.

Amendment 113

Moved by

113: Clause 51, page 41, line 31, at end insert—

“( ) In issuing and reviewing any such guidance the Secretary of State must take into account any guidance issued for the purposes of section 11 of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare) and of section 17 of the Children (Scotland) Act 1995 (c. 36) (duty of local authority to child looked after by them).”

I would be sorry if this amendment were not moved, because it is extremely serious. It applies to the application of the Children Act 2004, particularly two aspects of it: first, the arrangements to safeguard and promote the welfare of children and, secondly, to take into account any guidance that has been issued for the safeguarding of children.

Various groups of children concern me under the category of immigration. First, there are the immigration detainees who are held in detention centres, many of whom are held for far too long. There is a further amendment discussing the question of detention, so I shall not detain the Committee at this stage on that issue.

Secondly, a very large number of people—certainly hundreds and said to be thousands—have come into this country as children, underage, and have disappeared. No one knows where they are. This is a matter that I have raised before in the context of the Health and Social Care Act. Who is looking for them? Who is trying to find them? I welcome the fact that the Government have recognised the need for the Children Act to apply to this group of children. I am enormously grateful for the briefing that I and other Members received from the Refugee Children’s Consortium, the Immigration Law Practitioners’ Association and the Refugee Legal Centre, which mentioned the problems of dealing with the children whom we know about—but who is looking for the children whom we do not know about?

There are in existence local safeguarding children boards, which have been set up by statute. The Minister has already mentioned the fact that those boards have core membership that includes local authorities, health bodies, the police and others. I have called before for a census to be done by these local safeguarding bodies to discover how many of these children are in their areas of responsibility, where they are and what is happening to them. No one else is capable of doing so. If the UKBA now has an obligation under the Children Act, what is the relationship between the UKBA and the local safeguarding children boards regarding the children who appear, if we are not careful, to be falling between the cracks of the two?

I shall go on to ask further questions of the Minister, because it seems to me that there is a great danger in allowing just the mention of looking after children under the responsibility of the UKBA to go without looking at all the other implications of this. Who is actually responsible for inspecting the conditions in which immigrant detainee and asylum-seeking children are held by social services all around the country? To ease the burden on the social services that are adjacent to the airports or ports of entry, children have been distributed all around the country to individual social services to be looked after. Their conditions are very different. Some are in bed and breakfast accommodation. Some are given education, others are not. Who is responsible for looking after this issue? The Council for Social Care Inspection was abolished recently and replaced by Ofsted. Is the UKBA talking to Ofsted about the inspection of the facilities in which these asylum-seeking and immigrant children are being looked after?

We were going to just let the amendment go by default, but it seems to me to be a “tip of the iceberg” amendment. I really would like confirmation from the Minister that all these other implications of the looking-after of children under the terms and conditions of Section 11 of the Children Act 2004 really have been looked into and that all the other agencies with statutory responsibilities for helping and, particularly, for looking after these people who nobody knows anything about are being investigated.

I was initially embarrassed at my slowness at finding the papers to move the amendment but once I heard the noble Lord, Lord Ramsbotham, I was extremely glad that he moved it, incredibly ably. His name was on the amendment and he has much greater expertise than I do.

Whenever you hear, for example, discussions around a local government table about corporate parenthood and so on, I cannot recall an occasion when they have included the children we are talking about this evening. It has always involved children who were born and lived in the area and this issue is almost entirely overlooked. The noble Lord has raised some serious matters about how these systems intermesh, because in a lot of agencies they simply do not.

My noble friend Lord Ramsbotham was absolutely right to move the amendment. The whole area is one where children and young people can fall between many stools and there are quite frequently gaps between one form of authority or service and another.

I will mention my own experience in dealing in the matter of disappeared children. About seven or eight years ago, the social services in Sussex had a safe house not too far from Gatwick and therefore suitably located for caring for such children. However, considerable numbers of children, several dozens at least, disappeared from that safe house. Subsequently, we were promised that there would be a kind of national safe house, probably in the London area, which would be operated by a voluntary organisation. I do not think that that ever came off.

All the same, children have gone on disappearing both from placements with foster parents and from children’s homes run by local social services. The question that my noble friend raised about who is responsible for looking for those who have disappeared is very relevant and needs to be followed up.

There are fears that in some cases children who disappeared were somehow spirited away to west Africa or re-exported from this country. It is a very serious matter.

Perhaps I may raise a small, though not unimportant, matter. I understand that the Home Office has just decided to withdraw funding from the Refugee Council Children’s Panel. That panel has been very involved in the sort of work that the noble Lord, Lord Ramsbotham, has been talking about. It helps to make decisions on the age of children in this country and generally keeps an eye on them. If the Minister does not know the answer tonight, I should be extremely grateful if he would write to let me know why this money has been withdrawn and what possible alternatives are being put forward to protect the children in the way that the children’s panel has been doing. The panel has been absolutely central to safeguarding and promoting the welfare of children in the United Kingdom, and it would enormously raise the stakes on Clause 51 if the proposed Home Office procedures were to stand without its expertise and support.

I am very glad that the noble Baroness, Lady Hanham, raised this matter of the withdrawal of funds from the children’s panel. It seems to me incongruous to talk about safeguarding children and, in particular, the disappeared children referred to by the noble Lords, Lord Ramsbotham and Lord Hylton, when the money that might be used to ascertain what has happened to these children and to look after them if they are recovered from whoever took them away has been cut off.

We are talking about quite a serious problem. In 2007, 3,500 separated children arrived in the UK from places such as Afghanistan, Iraq, Iran, Somalia, Eritrea and Ethiopia. Until now, the children’s panel has been working to help these young people, who range in age from 10 to 17, to access services and to help them through the asylum system. The advisers on the children’s panel help as many separated children as they can, although their services are concentrated in London and the south-east, through one-to-one casework, and they have drop-in services and surgeries. They work with those who are particularly vulnerable, including those who are trafficked.

My impression is that the children who have disappeared, especially those who have been placed in the custody of local authorities, are in fact trafficked and would not have disappeared from the system voluntarily. I feel that someone has a hold on them, enabling them to come from the custody of a foster parent or children’s home or wherever they are located to be used for nefarious purposes within the United Kingdom. I do not think that it is very credible that they would be sent back to West Africa, as the noble Lord, Lord Hylton, suspected is sometimes the case.

Why are we cutting off money from the children’s panel at the very moment when we are ostensibly safeguarding the welfare of the children? Does that not seem extremely incongruous, and can the Minister tell us whether there is any possibility that the Government will reconsider this niggardly and untimely stinginess?

I thank the noble Baroness, Lady Hanham, for bringing up this very important point. I am not sure but I believe that the future of the panel has been uncertain for some time. I think that there was a threat of the money being withdrawn, and now some money is being given for next year so that some of its work can continue.

However, I was comforted by the Minister’s response at Second Reading, when he recognised the importance of people working on the front line and having front-line experience. We talked about the morale of the case managers. I also spoke to Jeremy Oppenheim about the changes that he has been bringing about. He has introduced the case management system so that individual case managers can follow a case from the beginning to the end and build a relationship with the asylum applicant. However we legislate, if we do not have people on the ground with experience and expertise to inform us of what is being done, we will not get what we ultimately need. During the passage of the Children Act 2004, the noble Lord, Lord Laming, said again and again that the Children Act 1989 was very good but that unfortunately it was being poorly implemented. We can legislate all through the night but if we do not have people on the ground with experience and expertise, we will not get the outcomes for children that we want. I have used the children’s panel in the past to take advice or to sound it out about Yarl’s Wood, and found it very helpful. These experts with long experience are just what we need if we are to protect children. It is a matter of concern and I hope that the Minister can reassure us.

I also want to ask about the production of the guidance for Clause 51. May I have an assurance that there will be a close partnership with the Department for Children, Schools and Families and what it has done with Section 11? The new children’s champion who has taken on the mantle of Jeremy Oppenheim is Christian Armstrong, so I should be interested to hear what meetings with the DCSF there may be for him in the future and to be kept abreast of the programme of meetings that they may have.

I have listened to this exchange, which on top of the other concerns on the previous amendment are really important. I was very concerned by the anger of the noble Baroness, Lady Hanham, that greater attention was not being paid to trafficked children. There are far too many of them for a country which prides itself that such a thing could never happen here, but it has been happening. To hear that the money is being withdrawn from some of the organisations that are active in this field is not good news at all. I hope that the Minister can assure us that if there is a good reason for taking away money from this group—nothing has given us any reason to believe that that is so—similar sums of money will be made available to other people who will pursue those interests rather more vigorously.

I am grateful to Members of the Committee for raising the issue of guidance, which is a crucial element in the implementation of the new duty in making it clear to the UK Border Agency, our customers and other bodies with whom we work what the duty means in practice. I am glad to have the opportunity to discuss this more fully.

Clause 51(3) requires a person exercising the immigration, asylum, nationality or customs functions in subsection (2) to have regard to any guidance given by the Secretary of State for this purpose. Subsection (5) requires the same of anyone exercising a function of the Director of Border Revenue. Amendments 113 and 115 would require the Secretary of State in turn, when issuing and reviewing such guidance, to have regard to guidance issued under Section 11 of the Children Act 2004 and Section 17 of the Children (Scotland) Act 1995.

These amendments are unnecessary. It is already our intention that the guidance to support Clause 51 will be developed and issued jointly with the Department for Children, Schools and Families—a point made by the noble Earl, Lord Listowel—and will reflect closely the existing Section 11 guidance, about which I will say more shortly. Before I do, I should also make a technical point about the references to Scottish legislation. Section 17 of the Children (Scotland) Act 1995 is not analogous to our new duty, and thus not an appropriate model to follow for the following reasons.

Section 17 sets out the duty of a local authority to a child looked after by the local authority. This is a wholly different relationship from that between UKBA and the children it deals with in the UK immigration system. Section 17 sets out that the local authority’s duty to safeguard and promote the welfare of children shall be a paramount concern, whereas our new duty is to have regard to the need to safeguard and promote the welfare of children when exercising specific functions. Section 17 is also a duty for the local authority to make services available to children and to take steps to promote relations and contact between the child and the person with parental responsibilities. Again, this is quite different from UKBA’s role.

Let me now return to the substance of the amendment and the relationship between our guidance and the existing Section 11 guidance. It might assist noble Lords if I describe the existing statutory guidance on making arrangements to safeguard and promote the welfare of children under Section 11. The guidance is divided into two parts. Part 1 sets out the general arrangements to safeguard and promote welfare, which all bodies subject to the duty must have in place. It includes strategic and organisational arrangements such as senior management commitment to children; a clear statement of the agency’s responsibilities towards children that is available for all staff; staff training; effective inter-agency working; and so on. Part 1 also highlights some of the ways in which the duty affects direct work with children and families; for example, in the need to ensure that children are listened to and taken seriously; to be clear when to refer children in need to other agencies; to keep good records; and so on. Part 1 is drafted in such a way as to be relevant to all the different bodies that are subject to the duty and to enable them to apply it in ways appropriate to their own functions. We think that Part 1 as drafted is equally relevant to the UKBA and should apply in the same way.

In Part 2 of the guidance, there are individual chapters devoted to each individual organisation to which the duty applies. This is because the duty applies differently to each and every body or organisation to which it relates because it always applies within the context of the specific organisation’s exercise of its specific functions. We will produce something along similar lines for the UKBA. It will set out the UKBA’s primary functions, including those of the director of border revenue, and the main areas where it has a contribution to make to safeguarding and promoting the welfare of children in the exercise of those functions. Although the duty applies to all functions, it will be of greater relevance to some than others—for example, in relation to identifying possible victims of trafficking. The guidance will also set out how we will give effect to some of the broad organisational and strategic arrangements in Part 1 in the specific context of the border force.

As the amendment recognises, the Section 11 guidance applies to England only. Therefore, in addition to working closely with DCSF, we will also work with the devolved Administrations to ensure that our guidance takes proper account of the different arrangements in place elsewhere, and we will also consult other external bodies, including NGOs, in the drafting process. The amendments make a specific point about taking account of the Section 11 guidance when the guidance on this clause is reviewed. In view of the very close relationship between the two that I have described, it will be obvious that neither could be reviewed without reference to the other and that this aspect of the amendments is also unnecessary.

A couple of specific points were raised. One of the issues raised by the noble Baroness, Lady Hanham, was also touched on by other speakers. It is the withdrawal of funding from the Refugee Council’s children’s panel. We have agreed to fund it to carry out substantially the same services as in previous years; the only significant change is that we will no longer fund it to liaise with local authorities on age assessment. Instead, on that issue, we will go direct to trained social workers in local authority children's services departments, and we are providing additional funding for authorities with the largest number of such cases. Far from dropping money and taking it away, we are spending slightly more in a slightly different way.

The noble Lord, Lord Ramsbotham, asked about missing children. If children from overseas go missing, the police are immediately informed and normal police procedures are followed. The borders staff attend local safeguarding children boards where issues are raised involving children from overseas. The noble Lord, Lord Ramsbotham, also asked about the relationship between the border force and LSCBs. The Clause 51 duty will ensure that the border force fits within the inter agency arrangements set out in Section 11 of the Children Act. That includes liaison with the local safeguarding children boards. He also asked whether we can confirm that the full implications of looking after children that are contained in Section 11 of the Children Act are being looked into. We are exploring with the Department for Children, Schools and Families how the Section 11 duty will apply in strategic arrangements and in the framework for co-ordinating with other agencies. That will be set out in detail in the guidance accompanying the new duty. The noble Earl, Lord Listowel, asked about guidance on this liaison. I assure him that we have had a close partnership in formulating that guidance. The new children’s champion will be meeting DCSF, and I have no doubt that, as part of his introduction to his work and his new role, he may well contact noble Lords.

I hope that the noble Lord is sufficiently reassured to withdraw the amendment.

I am lost in admiration all the time for the work of local authorities—I am a member of one, so I declare an interest as such—but I am not at all sure why the children’s panel must now pass one of the most important aspects with which it deals to a local authority. Perhaps we could have a note some time on the exact reasons behind this and what the children’s panel will be left to do if it is not doing this. The Minister said that there would be extra money, but it seems to me that the local authorities will spend the money that the children’s panel would have been spending on finding out what age a child was. We need a little more clarity on this, if we may have it.

There is a bit of an issue here. If the local authorities are the very ones that are failing in their duties to these children, and the children’s panel would have discovered these failures but the local authorities will now be judge and jury on this, there will not be the same third-party checks, so far as I understood what the Minister said about how the funding will work now.

I have one small point to add. I understand that the children’s panel has been particularly effective in the past year at recognising children who have been held in detention mistakenly as adults. Indeed, it has recognised more in the past year than in previous years, so it may have the expertise to do this difficult and complex job well and to protect children well who have been mistakenly placed in the adult system. I am sure that we will come back to this. It will be interesting to learn exactly how this will work in the best interests of children.

It would be useful to have this information before next week, because one of the amendments that is coming down the track is about age assessment. If we know the answer to the question asked by the noble Earl, Lord Listowel, and my noble friend, it would very useful in informing our next discussion.

I agree. That is a very good point; I have no difficulty with it at all. I am particularly unqualified to guess people’s ages, because I always get them very wrong. If we are doing this particularly brilliantly at the moment, I will be fascinated to find out why we should change the way in which we do it. Generally, administrators do not aim to cock things up, if noble Lords will excuse my French. They do things for good reasons, so I will certainly get back to noble Lords and explain why this is happening.

I am sorry that we should end this evening on a disappointing note. There is nothing personal in this; the noble Lord, Lord West, and I have known each other for long enough to realise that that would not apply. When I was a member of the Independent Asylum Commission, we summed up the attitudes of the Home Office and the UKBA to all the points that were being put to them as a culture of disbelief. What worries me about the brief that the noble Lord read out was that it was the culture of disbelief writ large. I was amazed that it should be suggested that people reported to the police that people had gone missing. Who had reported them to the police? Which people knew that they had gone missing? I am incredulous.

The Minister mentioned two things: that various things were being examined and that guidance was being produced. In view of the questions raised by noble Lords all around the Committee throughout our discussions today and on earlier parts of the Bill, I do not think that it would be responsible of us to let this part of the Bill go without further question. I hope, therefore, that to guide our discussions on Report, the Minister can share with us the guidance and the policy which they propose to put out so that we can subject it to the same sort of examination that we have put the Bill through, in the hope that we make it workable on behalf of the people whom we are trying to look after. With the request that we should be provided with that information before Report stage, when I promise we will bring this matter back, I beg leave to withdraw the amendment.

Amendment 113 withdrawn.

Amendments 114 to 116 not moved.

Clause 51 agreed.

House resumed.

House adjourned at 10.15 pm.