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The Minister of State, Cabinet Office (Lord Falconer of Thoroton): I fully understand the intention behind the amendments and although I am unable to support them I think that the Government's aims and those of the mover of the amendment and its supporters are very similar. The noble Lord, Lord Cope of Berkeley, seeks to deal with concerns about persons where there is no dispute about their being under 18 years of age and those where age is in dispute. It may be helpful to explain to the Committee the policy and practice in respect of unaccompanied minors and children in families, first, where age is not in dispute.

Unaccompanied minors are only ever detained where absolutely necessary, and even then only for a short period; for example, overnight following arrival if the local social services department is unable to offer immediate assistance. An unaccompanied child claiming asylum or one appealing against a decision to refuse asylum would therefore not be detained save in very limited circumstances until more appropriate care arrangements had been made by the relevant local authority. This position was confirmed in the White Paper; and I confirm it again today.

The noble Lord, Lord Cope of Berkeley, says that every effort should be made to avoid detention of under-age children wherever possible. I agree, but we recognise that there are certain limited circumstances

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where it is not possible for a short period of time to avoid detention. In those circumstances, Amendment No. 114, which would prevent detention ever, is not appropriate.

I give one example of the circumstances in which such detention might be appropriate. A child's application is refused. He lodges an appeal; he absconds; he sleeps rough; he comes to the authorities late one night; and social services cannot respond. Amendment No. 114 means that he could not be sent to a detention centre even for the night.

Families are detained only as a last resort, most usually when removal directions have been set and it is clear that the family are unlikely to depart from the United Kingdom voluntarily. It would be most unusual for a family to be detained while there was an appeal outstanding against a decision to refuse asylum. Children will never be detained if they have one or both responsible parents to care for them outside detention. Furthermore, if we are advised that the best interests of a child would be met by separation from a detained family, the child will be referred to local authority care.

It is our view that wherever possible the family should be kept together as a single unit unless the best interests of the child indicate otherwise. In family cases detention should again be for the shortest possible period, usually overnight prior to removal. If further representations are made which necessitate the deferring of removal it would normally be appropriate to release the family. A further consideration is that, as we currently have only one family unit at Tinsley House detention centre, there would be no operational benefit to be gained in using it to detain one family for a lengthy period and so prevent its use for other families who are removable and whose circumstances require short term detention. I hope very much that the assurances I have given will set noble Lords' minds at rest. I shall come to Section 25 of the Children Act in a moment.

Lord Clinton-Davis: The Minister said that the normal situation would apply in the circumstances to which he alluded. Does he feel that in order to deal with the somewhat abnormal circumstances that can arise it would be helpful to offer some advice or directions to the authorities so that difficulties might be obviated without necessarily including such provisions in the Bill?

Lord Hylton: Following the remarks of the noble Lord, Lord Clinton-Davis, would the Minister make inquiries to see whether a small pool of foster parents could be recruited, living, if possible, near the principal airports, to meet precisely the emergency situations to which he referred earlier?

Lord Falconer of Thoroton: On the first point of the noble Lord, Lord Clinton-Davis, it seems obvious that guidance should be given to authorities dealing with the question of the detention of unaccompanied children. Perhaps I may make inquiries as to what guidance will be given. Putting children into foster care is a matter for local authorities to whom children may in certain

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circumstances be remitted in the context of an asylum application. I am unable to give the assurances that the noble Lord, Lord Hylton, seeks.

The second proposed new clause refers to detention in cases where a person's age is in dispute. The instance of asylum seekers claiming to be under 18 is rising. In age dispute cases it is our practice to detain for longer periods only where circumstances demand and we have reasonable grounds for believing that the person is 18 years or over. In reaching a decision on the age of an applicant, we take into account any medical or other information which suggests that the person is a minor. All cases involving minors are referred as a matter of routine to the children's panel of the Refugee Council. In cases of doubt the person concerned is given the benefit of the doubt and will be treated as a child, allowing for his or her release into appropriate care.

As the noble Earl, Lord Russell, will know, assessment of age is, according to the medical profession, an inexact science. We have been in consultation with the Royal College of Paediatrics and Child Health on the subject of age assessments. It informs us that medical age assessments are very difficult to make and any statutory provision placing greater weight on medical assessments than is already given under current arrangements would be unwelcome within the medical profession. Amendment No. 115 in effect proposes that a paediatric assessment be done and particular weight given to it. On the basis of the advice we are receiving from the bodies that I have indicated, that would be unwelcome within the medical profession and I think that we are sensible to take its advice.

In a recent case drawn to our attention by the Refugee Council a consultant paediatrician had assessed the young man's age as 17 years, plus or minus 1½ years. However, in a subsequent interview with an immigration officer, in the presence of his legal representative, the person confirmed that he was 21 years old. This fact was borne out by documentary evidence given by another member of his family.

I hope that noble Lords are reassured by my assurance that the benefit of the doubt is given wherever possible in cases of age dispute. The introduction of the Government's proposed statutory presumption in favour of bail will provide an added safeguard in all cases, as will the new routine bail hearings provided by Part III of the Bill. Indeed, the special status of minors is to be reflected in the very narrow exception to be drafted to the statutory presumption in respect specifically of minors.

Amendment No. 115 also proposes that Section 25 of the Children Act 1989 shall apply wherever a child under the age of 18 is detained. Section 25 sets out the circumstances in which a child who is being looked after by a local authority may be placed in secure accommodation and applies in this context without the need for any amendment along the lines proposed.

Without going into the detail of it, Section 25 of the Children Act sets out very limited circumstances in which a secure accommodation order can be made in respect of a minor. The noble Earl, Lord Sandwich, asked passionately: why, if everything is all right, as

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I suggest, are these bodies complaining? I have gone through the arrangements carefully. I believe that if one considers the problems legitimately raised in relation to the detention of minors, the Government's thinking and that of noble Lords who raised the point are quite similar. The only difference between us is the body of thought which says, "You should never, come what may, even for a night, detain an unaccompanied minor." We think that there may be certain limited circumstances where that is necessary.

As regards breach of the United Nations convention on rights of children, there is judicial oversight of detention. Not only are there bail applications, judicial review applications, and habeas corpus applications, but in future there will also be the routine bail applications referred to in the Bill. Indeed, there will be a presumption in favour of bail.

In certain cases, it may be in the interests of the child to detain him or her for a short period of time until appropriate arrangements are made. Also, there are cases in which age is in dispute. In such cases, investigations are made, but we give the benefit of the doubt to the detainee. We do not see that in those circumstances there would be any breach of the United Nations convention or, in particular, of any of the articles referred to by the noble Lord, Lord Dholakia, in relation to the proposals we are making. In those circumstances, I hope that the noble Lord will be minded to withdraw his amendment.

Baroness Williams of Crosby: May I press the Minister on two points? The gap between the thinking of those of us who have tabled the amendments and what the Minister has just said is narrow. I imagine that the question turns on whether it will be possible to indicate on the face of the Bill that only in exceptional cases would a minor be detained, instead of a broader expression of the situation with regard to minors.

On Amendment No. 114, would it be possible to indicate in circulars to local authorities that minors should not be put in custodial or similar accommodation, but in accommodation suitable for young people, as a way of dealing with children under the Children Act 1989? That would be a simple solution and would not require primary legislation.

On Amendment No. 115, may I ask the Minister why the drafting of that amendment, in particular subsection (2), does not meet the exact point that he made--that the burden of proof should rest on the immigration authorities rather than on the child? Therefore, in cases in which paediatric specialists hold that there was a reasonable likelihood that the person was in fact under the age of 18, he or she should be treated as a minor.

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