Trafficked and migrant children - Age assessment cases: a culture of disbelief?
Monday, September 5, 2011
Kamena Dorling examines the challenges faced by trafficked children who are denied support because they have no proof of their age.
In June this year, the Children's Legal Centre secured a victory in the High Court for an 18-year-old trafficked girl, who had arrived in the UK aged five and was kept as a domestic slave. Having suffered prolonged systematic abuse for 10 years, "Y" escaped and approached the London Borough of Hillingdon for support. One would expect, or hope, that any subsequent court case would have resulted in criminal proceedings against the traffickers of Y. But instead, the legal battle centred on the local authority's decision to dispute her age. Y did not have any official documents to prove her date of birth and Hillingdon concluded, after conducting its own age assessment and a dental assessment, that she was three years older than her claimed age of 16. In their view, therefore, she was an adult - her foster placement was terminated and she was told she would no longer be entitled to any support or accommodation from the local authority children's services department.
This case is symptomatic of a wider problem facing separated migrant children in the UK - that they often do not have documents proving their age and there is a culture of disbelief prevalent in both the UK Border Agency (UKBA) and local authorities. A significant number of the young asylum seekers who arrive in the UK claiming to be children either do not have a birth certificate or passport, or have been given false documentation.
The latter is especially prevalent in the case of trafficking victims, who are often told by traffickers to inform the authorities that they are an adult. Many have their age questioned by either the UK Border Agency, or the local authority to which they have turned for support.
In July, a similar case was reported, which concerned a girl who spent her childhood imprisoned in a brothel in the Democratic Republic of Congo before being trafficked into the UK. Officials from Barnet Council in north London, deemed, in May 2009, that the girl was an adult and should not be able to benefit from its services. The court was asked to determine the girl's age and decide whether she should be able to claim services under the Children Act 1989. She had been diagnosed with chronic post-traumatic stress disorder and major depressive disorder, and was described by her clinical psychologist as "one of the most vulnerable persons she had assessed in a decade". The Home Office had accepted her account of her early life and had granted her five years leave to remain in the UK. In addition, the NSPCC, her carer, an independent social worker, an independent paediatrician and the child trafficking officer at Africans Unite Against Child Abuse all considered her to be under 18 when she entered the UK. Only after a lengthy court process was she accepted by Barnet as a child.
Assessing age
The question of age is a crucial one for children seeking asylum, as it will not only affect how they might be cared for by children's services and their access to education, but it will also affect how their asylum application is processed and may lead to them being placed in immigration detention as an adult.
At present, where "there is little or no evidence to support a person's claimed age", UKBA policy is to dispute their age, unless their physical appearance and demeanour "very strongly suggests that they are significantly over 18 years of age", in which case they will be treated as adults. This initial decision is made solely on appearance, but a putative child has the right to approach children's services for support and the local authority must make its own assessment of a young person's age, as a "gateway decision" for the purposes of deciding whether they then might be a child in need under part 3 of the Children Act 1989. If a child is seeking asylum alone in the UK, he or she will invariably be owed a duty of care by the local authority in which they are physically present, under section 20 of the Children Act 1989. The Council of Europe Convention on Action against Trafficking, signed by the UK government in 2007, states that in age dispute cases the child should be given the benefit of the doubt.
However, there is currently no statutory procedure or guidance issued to local authorities on how to conduct an age assessment. Instead, the current approach has evolved through practice by local authorities and legal challenges to the process. Age assessments and age disputes have become increasingly contentious issues and, in the absence of arbitration mechanisms, inadequate assessments can result in legal challenges and judicial review. The Supreme Court in R(A) v Croydon, R(M) v Lambeth held that in the event of a challenge by judicial review, it would be for the High Court itself to determine, as a matter of judicial fact, whether the person is a child and how old he or she is. The whole process is costly for local authorities and deeply stressful for young people whose lives are left on hold as they wait for a decision.
The Welsh Refugee Council report, Young Lives in Limbo: The Protection of Age Disputed Young People in Wales, published last month, describes the experience of children and young people whose lives are left in limbo, outside of society's protective mechanisms because their age is disputed. Many of its observations and recommendations apply just as much in England, and the report makes it clear that "a better approach is urgently needed". Indeed, four years ago, the Immigration Law Practitioners' Association report When is a Child not a Child called for a range of improvements, including the proper application of the benefit of the doubt, the separation of the age assessment process from subsequent responsibility for care of the child and a holistic age assessment process where deemed necessary.
Vulnerable children and young people who arrive in the UK without documentation that would identify them as a child too often do not receive the care and support they need because their particular needs are not identified. The lack of a standardised measurement for assessing age further compounds these problems, and for young refugees and victims of trafficking can lead to their falling through the gaps.
More information on age assessment, trafficking and other issues facing refugee and migrant children can be found at www.childrenslegalcentre.com/Migrant+Childrens +Project. If you have a query regarding this group of children, please email mcp@essex.ac.uk or phone 020 7636 8505.
Kamena Dorling is policy and programmes manager at Coram Children's Legal Centre.