Legal Update: Treatment of trafficking victims
Kamena Dorling
Tuesday, August 6, 2013
A recent case makes important rulings about the treatment of child trafficking victims in criminal cases, says Kamena Dorling, policy and programmes manager, at Coram Children's Legal Centre.
Child victims of trafficking are those who have been "recruited, transported, transferred, harboured or received for the purpose of exploitation". Children can be trafficked for various reasons, including sexual exploitation, forced labour, domestic servitude, criminal activities, benefit fraud, organ harvesting or illegal adoption. Some victims may not come to the attention of statutory or voluntary service providers until they have been in the country, suffering abuse and exploitation, for months or years.
Children who have been trafficked are often very fearful. Threats may have been made towards them or their families, and large debts may be owed to their traffickers. They are often subjected to physical, psychological or sexual abuse or neglect and may have been coached in a version of events which they are told to relay if they are apprehended by the authorities.
Because of perceived stigma, or lack of knowledge, or because they are still in the control of their traffickers, some may deny they have been trafficked in the first place.
Children not being treated as victims
The gateway to protection as a victim of trafficking is identification as a victim and the primary response should be a child protection one, to ensure that they are safe and have appropriate support to meet their welfare needs.
However, practitioners are still failing to identify that the children they are working with are potential victims of trafficking. Furthermore, too many children are still being treated as criminals, despite Crown Prosecution Service (CPS)guidance clarifying that where there is credible evidence that a child is the victim of trafficking, it will generally not be in the public interest to prosecute. Much concern has been raised, for example, about the criminalisation of child trafficking victims apprehended in raids on cannabis farms, many of whom are subsequently charged with drugs or immigration offences.
In addition, many children, when they finally do present to the authorities, do not have documentation showing how old they are, or may even have ID provided by their traffickers indicating that they are adults. As a result, they may be disbelieved about their age and treated as older than they are, a problem highlighted in Coram Children's Legal Centre's recent report Happy Birthday? Disputing the Age of Children in the Immigration System.
In this context, the recent case of L, HVN, THN & T v R (2013) EWCA Crim 991, which examined the treatment of child victims of trafficking in criminal cases, was very welcome. The case involved three children from Vietnam who had been trafficked to the UK and forced to work in cannabis factories. The court quashed the children's criminal convictions and also made important findings relating to the approach the criminal courts should take towards children whose ages have been disputed. It held that the criminal courts have a statutory duty to make enquires about a defendant's age but this means more than a superficial observation in court. Therefore, if there is insufficient evidence to make a proper assessment of the defendant's age, the criminal hearing should be adjourned so a proper age assessment can be made and evidence obtained. As an overriding principle, where there are reasons to believe that a defendant is a child they should be treated as a child until their age has been assessed.
The judgment also emphasises that trafficking victims are to be treated as victims of crime rather than being criminalised and prosecuted, and that their rights must be protected. The court gave guidance on the approach that should be taken in cases such as this where prosecutions have been commenced by the CPS, highlighting that the criminal courts should oversee the decision of the prosecution and not allow a prosecution that fails to address the victim's situation and the UK's obligations to trafficking victims.
The failure to identify child victims of trafficking, and provide the support and protection they need, can have extremely serious consequences. This case is a welcome step towards addressing this significant problem.
Legal Update is produced in association with experts at Coram Children’s Legal Centre ?www.childrenslegalcentre.com
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