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3.5 Children from Abroad


Contents

  1. Introduction
  2. Principles
  3. Initial Action and Protection
  4. The Needs of the Child
  5. Other Considerations

    Appendix 1: Children from Abroad - Legal Status and Legislation


1. Introduction

This procedure is only concerned with children arriving into the UK:

  • In the care of adults who, whilst they may be their carers, have no Parental Responsibility for them;
  • In the care of adults who have no documents to demonstrate a relationship with the child;
  • Alone;
  • In the care of agents.

Evidence shows that unaccompanied children or those accompanied by someone who is not their parent are particularly vulnerable. The children and many of their carers will need assistance to ensure that the child receives adequate care and accesses health and education services.

Immigration legislation impacts significantly on work to safeguard and promote the welfare of children and young people from abroad. It is important to note that regulations and legislation in this area of work are complex and subject to constant change through legal challenge. This guidance, therefore, intends only to reflect broadly the additional issues faced by families operating within the context of immigration law. All practitioners need to be aware of this context to their contact with such families. Legal advice about individual cases will usually be required by Children's social care.

A small number of these children may be exposed to the additional risk of commercial, sexual or domestic exploitation. See also Sexual Exploitation Procedure and Trafficking Procedure.


2. Principles

There are some key principles underpinning practice within all agencies in relation to unaccompanied children from abroad or those accompanied by someone who does not hold Parental Responsibility. These are:

  • Never lose sight of the fact that children from abroad are children first - this can often be forgotten in the face of legal and cultural complexities;
  • Children arriving from abroad who are unaccompanied or accompanied by someone who is not their parent should be assumed to be children In Need unless assessment indicates that this is not the case. The assessment of need should include a separate discussion with the child in a setting where, as far as possible, they feel able to talk freely;
  • Assessing the needs of these children is only possible if their legal status, background experiences and culture are understood, including the culture shock of arrival in this country;
  • Be prepared to actively seek out information from other sources. Beware of “interrogating” the child.


3. Initial Action and Protection

Whenever any practitioner comes across a child who they believe has recently moved into this country the following basic information should be sought:

  • Confirmation of the child’s identity and immigration status;
  • Confirmation of the carer’s relationship with the child and immigration status;
  • Confirmation of the child’s health and education arrangements in this county.

This should be done in a way, which is as unthreatening to the child and carer as possible. The child/family may have documentation from their previous country such as benefit letter, ID cards, GP or hospital letters, letters from other Children’s Social Care services.

If this information indicates that the child has come from overseas and is being cared for by an unrelated adult or one whose relationship is uncertain, a referral to Children’s Social Care should be made.

Seeking information from abroad should be a routine part of assessing the situation of an unaccompanied child. In order to gain as full a picture as possible, practitioners from all key agencies - Health, Education, Children’s Social Care and the Police - should be prepared to request information from their equivalent agencies in the country(ies) in which a child has lived, having first consulted with the Red Cross to ensure it is safe to do so. It is necessary to be aware that parents and the wider family in the country of origin could be at risk of violent repercussions as a result of local schools, health services and police receiving information that a family has a child in the UK, particularly if they are claiming asylum.

It is worth noting that agencies abroad tend to respond quicker to e-mail requests/ faxed requests than by letter. Similarly, the Internet may provide a quick source of information to locate appropriate services abroad. Also see:

The first contact with the child and carers is crucial to the engagement with the family and the promotion of trust, which underpins future support, advice and services.

Particular sensitivities which may be present include:

  • Concerns Around Immigration Status
    • Fear of repatriation;
    • Anxiety raised by another practitioner asking similar questions to ones previously asked;
    • Lack of understanding of the separate role of Children’s Social Care, that it is not an extension of police;
    • Lack of understanding of why an assessment needs to be carried out;
    • Previous experience of being asked questions under threat or torture, or seeing that happen to someone else.
  • Past Trauma
    • Past experiences can impact upon the child’s mental and physical health. This experience can make concerns from the ‘authorities’ about minor injury or poor living conditions seem trivial and this mismatch may add to the fear and uncertainty;
    • The journey itself as well as the previous living situation may have been the source of trauma.
  • The Shock of Arrival
    • The alien culture, system and language can cause shock and uncertainty, and can affect mood, behaviour and presentation.

In such circumstances reluctance to divulge information, fear, confusion or memory loss can easily be mistaken for lack of co-operation, deliberate withholding of information or untruthfulness.

If the engagement is good then there will be opportunities to expand on the initial contact. The ethnicity, culture customs and identity of this child must be a focus whilst keeping this child central to the assessment. The interviewing of a child should aim to be at the pace appropriate to the child, although the need to ensure that the child is safe may become paramount in some circumstances.


4. The Needs of the Child

4.1 Child’s Developmental Needs

Things to bear in mind include:

  • Health, behaviour and social presentation can be affected by trauma and loss. Famine and poverty can have an impact upon development;
  • Wider health needs may need to be considered, including HIV, Hepatitis B and C and TB (applies to the parent/carer also);
  • Education. What has school meant to this child?
  • Self care skills. Not to judge competence by comparing with a child of the same age in this country. This child may have had to be very competent in looking after themselves on the journey but unable to do other basic tasks. In some countries some children will have been working or have been involved in armed conflict. Loss of a parent can enhance or deprive a child of certain skills. Having had to overcome extreme adversity can result in a child who is either deeply troubled or both resourceful and resilient;
  • Identity. Who is this child? What it their sense of themselves, their family, community, tribe, race, history?
  • Physical appearance. Life experience and trauma can affect this. Lack of nourishment may make the child present as younger or older;
  • Perceptions of what constitutes disability are relative and attitudes towards disabled children may be very different;
  • The impact of racism on the child’s self image and the particular issues currently faced by asylum seeking children and their families.

Almost all children arriving in the UK unaccompanied will have had to get used to using false names, false identity/family story. At the insistence of people smugglers, children may have been stripped of name, family, language, culture, past, clothes, possessions etc. resulting in loss of identity. On arrival these children will be frightened of providing information other than that which they have been coached to tell. Many deny any knowledge of spoken English, but do in fact have good comprehension. Some will insist that they only speak rare tribal languages, for which it is not possible to gain an interpretation service. However, it is sometimes the case that children will appear to learn English very rapidly, once workers have gained their confidence. See Sexual Exploitation Procedure and Trafficking Procedure.

The fact that a child seems to have been given up by parents may not imply rejection, as the motive may have been to keep the child safe or seek better life chances for him/her.

However, many children and young people will carry the questions in their head: ‘why was I not good enough?, ‘why was I sent away?’ It must also be realised that they carry the added responsibility relating to family honour: families will have made enormous sacrifices for them e.g. sold farms or businesses to fund the child’s journey and relocation. In addition, the child may be the only survivor, chosen by the family to be the one who is sent to safety.

4.2 Establishing the Child’s Age

Age is central to the assessment and affects the child’s rights to services and the response by agencies. In addition it is important to establish age so that services are age (and developmentally) appropriate.

Citizens of EU countries will have passport or ID card (usually both). Unaccompanied children very rarely have possession of any documents to confirm their identity or even to substantiate that they are a child. Their physical appearance may not necessarily reflect his/her age.

Care of Unaccompanied and Trafficked Children: Statutory Guidance for Local Authorities on the Care of Unaccompanied Asylum Seeking and Trafficked Children (2014) provides that where the age of a person is uncertain and there are reasons to believe that they are a child, they are presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Article 10(3) of the European Convention on action Against Trafficking in Human Beings. Age assessments should only be carried out where there is significant reason to doubt that the claimant is a child. Age assessments should not be a routine part of a local authority’s assessment of unaccompanied or trafficked children.

Where an assessment of age is conducted, it must be Merton Compliant. The assessment of age is a complex task, which often relies on professional judgement and discretion. Such assessment may be compounded by issues of disability. Moreover, many societies do not place a high level of importance upon age and it may also be calculated in different ways. Some young people may genuinely not know their age and this can be misread as lack of co-operation. Levels of competence in some areas or tasks may exceed or fall short of our expectations of a child of the same age in this country.

A consortium of partners co-ordinated by the Association of Directors of Children’s Services (ADCS) has produced good practice guidance - Age Assessment Guidance: Guidance To Assist Social Workers And Their Managers In Undertaking Age Assessments In England (October 2015) - aimed at assisting frontline social workers in conducting age assessments of unaccompanied children seeking asylum in the UK.

This guidance brings together the fundamental elements of what constitutes a lawful assessment whilst promoting best practice. It contains practical advice on preparing for, and conducting, age assessments, as well as a range of useful resources covering issues such as trafficking, trauma and memory, and legislation and case law. Young people with experience of age assessments were consulted and some of their reflections appear in the final document.

This document forms part of a suite of publications including the ADCS and Home Office Age Assessment Joint Working Guidance and the Information Sharing Proforma.

4.3 Parenting Capacity

Things to bear in mind include:

  • War, famine, natural disaster and persecution can make a family mobile. The family may have moved frequently in order to keep safe. The stability of the family unit might be more important to the child than stability of place. Judgements that mobility may equate with inability to provide secure parenting may be entirely wrong. In some countries regular migration to deal with exhaustion of the land is part of the culture;
  • The fact that a child seems to have been given up by a parent may not imply rejection, as the motive may have been to keep the child safe or seek better life chances for him/her;
  • Talking about parents/ family can be stressful and painful - as can not being given the chance to do so regularly;
  • Importance of the extended family/community rather than a Eurocentric view of family;
  • Not to presume that you cannot contact a parent who is living abroad unless you have established that this is the case by actively seeking to do so*;
  • Lack of toys for a child may indicate poverty or different cultural norms rather than poor parenting capacity to provide stimulation;
  • The corrosive impact on parenting capacity of racism against asylum seekers;
  • The additional issues of parenting a child conceived through rape - either dealing with the negative response of the partner or with the stress of keeping it secret from him.

* NB Check with the Red Cross before attempting to contact a parent who is living abroad. It is safest to make all such contacts through the Red Cross ‘letter’ service. They have a policy of only delivering letters where it is known to be safe and when it is known that parents/family/ community will not suffer repercussions.

4.4 Family and Environmental Factors

The importance of economic and social hardship is apparent. In addition there may be issues such as:

  • Family history and functioning may include the loss of previous high status as well as periods of destitution;
  • Different concepts of who are/have been important family members and what responsibility is normally assumed by the whole community, e.g. with whom a child should reasonably be left.

4.5 Children in Need of Protection

Where assessment indicates that a child has suffered, or is likely to suffer, Significant Harm in need of protection and child protection procedures apply, additional factors need to be taken into account. These dilemmas include such things as:

  • Perceptions of Authority, the role of the Police in particular, and the level of fear which may be generated;
  • The additional implications for a family where deportation is a real threat as a consequence of a decision to prosecute;
  • Balancing the impact on a child of separation with the likely history;
  • Judgements about child care practices in the context of such different cultural backgrounds and experiences.


5. Other Considerations

5.1 Parental Responsibility

The Children Act 1989 is built around the concept of Parental Responsibility. This legal framework provides the starting point for considering who has established rights, responsibility and duties towards a child.

In some cultures child rearing is a shared responsibility between relatives and members of the community. Adults may bring children to this country that they have cared for most of their lives, but who may be unrelated or “distantly” related.

An adult whose own immigration status is unresolved cannot apply for a Child Arrangement Order to secure a child for whom he/she is caring.

Children whose parents’ whereabouts are not known have no access to their parents for consent when making important choices about their life. Whilst their parents still have Parental Responsibility they have no way of exercising it.

Children who do not have someone with Parental Responsibility caring for them can still attend school, and schools should be pragmatic in allowing the carer to make most decisions normally made by the parent.

Such children are entitled to health care and have a right to be registered with a GP. If there are difficulties in accessing a GP, the local Patient’s Services should be contacted to assist.

Emergency life-saving treatment would be given if required. However, should the child need medical treatment such as surgery or invasive treatment in a non life-threatening situation, the need for consent would become an issue and legal advice would be required.

Children’s Social Care has statutory duties where the child is deemed privately fostered. See Private Fostering Procedure.

Carers/parents are not eligible to claim benefits for their child unless they have both been granted some form of “leave to remain” in this country by the Home Office.

5.2 Seeking Information from Abroad

Seeking information from abroad should be a routine part of assessing the situation of an unaccompanied child. In order to gain as full a picture as possible, practitioners from all key agencies - Health, Education, Children’s Social Care and the Police - should be prepared to request information from their equivalent agencies in the country(ies) in which a child has lived, having first consulted with the Red Cross to ensure it is safe to do so. It is necessary to be aware that parents and the wider family in the country of origin could be at risk of violent repercussions as a result of local schools, health services and police receiving information that a family has a child in the UK, particularly if they are claiming asylum.

It is worth noting that agencies abroad tend to respond quicker to e-mail requests/ faxed requests than by letter. Similarly, the Internet may provide a quick source of information to locate appropriate services abroad. Also see National Contacts for Children from Abroad and Working with Foreign Authorities: Child Protection Cases and Care Orders.


Appendix 1: Children from Abroad - Legal Status and Legislation

1. Legal Status

The legal status of a child/family may be apparent from the documentation the family carries.

An unaccompanied child (under 18) with an asylum claim has no access to public funds (however, the provisions of the Children Act 1989 will still apply). Most unaccompanied children will be granted some form of leave to remain up until the age of eighteen. It is then necessary for them to make an application for an extension for leave to remain immediately before their eighteenth birthday. NASS will no longer take responsibility for former UASC's who have been granted no asylum status by the time they reach the age of eighteen years. (At the present time most local authorities are continuing to support these young people as care leavers as a result of the Hillingdon judgement. However, government guidance is awaited which might only be resolved by further judicial review).

Some children may arrive in the UK to re-join with their parents. If their parents have an outstanding asylum claim, the children can be recognised as ‘dependants’ and granted the same status as the principle applicant. Dependants are those who:

  • Are related (as claimed on the Asylum application); or
  • Were dependent on the principal applicant prior to arrival in the UK (even though unrelated); or
  • Had formed part of the pre-existing family unit abroad (again even though they may be unrelated).

If indefinite or exceptional leave to remain (ILR/ELR) or Humanitarian Protection has already been granted to the parent, the child’s application is considered as one for ‘family reunion’ and not as a ‘dependent’. In these circumstances the child must have formed part of the pre-existing family unit abroad.

Children who are dependent on asylum seeking parents may also claim asylum in their own right and their applications are then considered individually, irrespective of the outcome of their parents’ claim. The claims must be registered with the Immigration and Nationality Directorate (IND).

2. Relevant Pieces of Legislation

Nationality Immigration and Asylum Act 2002 (NIA)

Section 54 is intended to discourage the concept of ‘benefit shopping’ within Europe. It is retrospective and applies to anyone who comes within the categories set out below. This is not dependent on the length of time they have been in the UK.

The Act has the effect of preventing local authorities from providing support under certain provisions, including section 21 of the National assistance Act and section 17 of the Children Act, to:

  • Nationals of the European Economic Area (EEA) States (other than UK);
  • Those with refugee status in another EEA state;
  • Persons unlawfully present in the UK who are not asylum seekers, including those who have overstayed visa entry limit and those without confirmation of ELR/ILR leave to remain;
  • Failed asylum seekers who refuse to cooperate with removal directions.

Domestic Violence Concession

Attention should be given to the situation of children whose mother has separated from an abusive husband who is also the sponsor for her Spouse visa. Women in this position can apply under the Domestic Violence Concession for Indefinite Leave to Remain, but while the case is processed they have no recourse to public funds, so cannot claim Income Support, Child Benefit or Housing Benefit. Women’s refuges will normally house up to 1 woman at a time in this position, rent free, but they are not able to provide living expenses, and the number of women usually exceeds the places available.

Previously such women were able to claim assistance under the National Assistance Act and Children Act. However, Section 54 could have the effect of precluding Children’s Social Care from giving support to women (but not children) under the Acts. Ongoing court cases make this a difficult legal area. The approach should be to consider each individual case on its merits, for legal advice to be taken and for a decision-making Senior Manager, to examine whether help is needed/possible to avoid a breach of the family’s human rights.

Section 55 applies to those who have made or are intending to make an asylum claim in the UK. It prevents NASS from providing asylum support unless the Secretary of State is satisfied that the person applied for asylum as soon as reasonably practicable after arrival in the UK. Families with dependent children will, however, receive asylum support even if they did not apply as soon as reasonably practicable.

Section 55 does not apply to unaccompanied minors.

Those who have not yet officially lodged an asylum claim can be offered assistance with accommodation (usually overnight) and travel to Immigration and Nationality Directorate Public Caller Unit (IND) by Children’s Social Care in order to register the claim with the Home Office. Family can then access NASS support via Refugee Action once IND has accepted the claim and provided written confirmation of this.

End