Marco conceptual o términos

A major weakness of the system for children involved in

immigration proceedings is that decisions which necessarily go to the heart of a highly vulnerable child’s welfare…are undertaken by unqualified administrative officers and beyond the scrutiny of the family courts, much better qualified to understand the welfare and protection issues involved. If any administrative process or court system could be said to need the advice and assistance of an independent legal guardian it is the immigration jurisdiction

Refugee Children’s Consortium 2005, 3

There is no systematic provision of independent expert oversight of matters involving separated children who are subject to immigration control. Children may go unrepresented in their asylum application, may be placed in inappropriate accommodation during and after this time and may not understand the implications of the determination of their asylum application. In particular, the long-term solutions for each child may not be fully explored. Although it is the general duty of every local authority to safeguard and promote the welfare of children within its area who are in need, there are resource and other constraints on the level of care that they can provide for individual separated children and no automatic transfer of parental responsibility.26_{At the same time the Children’s Panel has limited}

capacity to follow up the referrals that it makes and no powers to ensure that the wide range of bodies in contact with a child act in his or her best interests. This is despite the requirement of the EUReception Directive that separated children should be provided with a guardian.27

26_{It is only where a local authority has taken care proceedings or an emergency}

protection order under Section 44 of the Children Act that there will be any assumption of parental responsibility by it. Unrelated adults may obtain parental responsibility through residence, guardianship or adoption orders.

27_{See also Baldaccini (2005) for a discussion of the implications of Article 19 of}

Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by the appropriate authorities.

European Council 2003, Article 19 (1)

In this context a wide range of organisations represented under the umbrellas of the Separated Children in Europe Programme (SCEP)28

and Refugee Children’s Consortium (RCC)29_{have called for a formal}

system of guardianship to be established for children who are subject to immigration control, including separated asylum seeking children, children who have been trafficked and children in private fostering arrangements. The guardian would have a statutory role and would be appointed by a statutory body to safeguard the best interests of the child and provide a link between all those who may provide services to that child. The role of the guardian in the immigration context would be wider than that of a Children’s Guardian within the CAFCASS system.30_{The guardian would be}

responsible for ensuring that the welfare needs of the child are properly safeguarded within the context of their status determination by the immigration authorities and the courts, and for ensuring that the support and care needs of this especially vulnerable group of children are met by all agencies charged with those functions. The guardian would be expected to intervene if public bodies acted in contravention of their legal duties towards the child, and if the legal representative did not fulfil his or her role.

Separated asylum seeking children 33

28 _{The Separated Children in Europe Programme (SCEP) was established in 1997}

as a response to the rise inj the number of separated children arriving in European countries and seeks to improve the situation of separated children through research, policy analysis and advocacy at the national and regional levels. It is a joint initiative of UNHCR and Save the Children.

29 _{The Refugee Children’s Consortium (RCC) is a group of NGOs who work}

collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international standards.

30 _{See www.cafcass.gov.uk/English/Publications/information/TheRoleofCafcass.pdf}

In order for a guardianship system for children who are subject to immigration control to be effective and workable, it should include the following features:

■ A named guardian should be appointed to a child within a set number of days from the date that the child comes to the attention of any statutory authority (ie social services, IND, UKIS, police etc) and before any substantive steps are taken in the determination of his or her asylum or immigration application;

■ A person appointed to act as a guardian to a child in immigration and asylum proceedings must be properly qualified, experienced and trained in the specific needs and circumstances of this particular group of children, and he or she must be monitored;

■ The system must include a complaints procedure and provisions for a child to apply to a court to change the guardian appointed to him or her;

■ The number of children for whom a guardian is responsible must be strictly limited. Whilst it is not envisaged that guardians would have regular day-to-day contact with children, they should be able to instruct other organisations to do so. They must be available to the child and easily contactable by him or her and have sufficient time to build a trusting relationship with him or her.

The system of guardianship could be run by an existing organisation, for example CAFCASS, a non-governmental organisation, an independent body, or it could be the responsibility of a new statutory body established to fulfil this role. Additional scoping work should be undertaken by the appropriate agencies and organisations to identify a best practice model of guardianship that is appropriate to the UK context.

SECTION 5

Asylum seeking children