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The amendments add to what the Government have already done in Clause 21 by issuing a code of practice. They also add to and amend the Children Act 2004. However, they are faulty to the extent that they do not also amend the Scottish children's Act,

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which they would have to do. Should the amendments be accepted, the Government could no doubt attend to that because the principle would be there. I support the amendments.

The Earl of Sandwich: My Lords, I am delighted that the Conservative Party has embraced these amendments. There is huge support in the country for them and the Minister will have to take note of that. We need this in legislation. When the noble Lord, Lord Avebury, asked whether the Minister had read the code and had found the words “children in detention”, I could not help but look at the Bill and I could not find anything about children in detention. I do not think that the Government have grasped this potentially major election issue. I hope that the Minister will not give us a smokescreen. The draft code of practice is a smokescreen and not the real thing.

Who are these children? I shall comment briefly on them because I have just returned from Afghanistan. My eye was caught by the Home Office statistics for the first quarter of this year which shows that 1,000 Afghan unaccompanied asylum-seeking children are coming here every year, amounting to 38 per cent of the total and the highest percentage in eight consecutive quarters. Having just come back from that country, I appreciate why families are trying to get away. I do not appreciate why the Government are not taking account of individual groups of children. Perhaps the Minister can make reference to that.

There is a duty of care. I mentioned a case from Kosovo in Grand Committee where a family was divided in a dawn raid and taken to Yarl’s Wood in various components—some were in hospital and some were not. The Home Office is not taking this issue seriously enough. I warmly support the amendment.

The Lord Bishop of Winchester: My Lords, this has been a particularly striking section of this debate. Among the many remarkable speeches, I felt especially privileged to hear the speech made by the noble Earl. I hope very much that the Government will accept these amendments, particularly Amendment No. 5.

I shall make three observations on what the amendment suggests to me. I hope that the first will not undermine the Government’s preparedness to accept it. The language of,

must include the agency’s thinking as it prepares, as it sometimes does, with the courts to argue for the deportation of children as well as adults to places to which people should not be deported. I shall say no more than that, but I have had a good deal of experience this year of that set of questions, particularly in relation to the DRC.

Secondly, I wonder about the language of,

I hope that it is not mistaken to mention the number, as I have heard and read, of plausible stories of agencies seeking to age children by means that are not fully usable or responsible and even agencies—social services as well as perhaps the Home Office—which

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have aged children as more than 18 years old when they are less than 18 years old by most likely estimates.

Thirdly, of course there has to be a cut-off point, which, under the Children Act, is 18 years old. I also have evidence of young people who, straight after their 18th birthday, are taken in and proposals are made to deport them to places where, because they have been entirely brought up in this country, they do not speak the language and deportation would be entirely unsuitable. There is also a question of safeguarding and promoting the welfare of children which cannot stop the day after their 18th birthday.

7.15 pm

Lord Hylton: My Lords, this amendment, combined with Amendment No. 16, is helpful. I support it and I urge the Government to accept it. Perhaps I may be allowed to make a tiny drafting point. The last line of Amendment No. 5 would be improved if it read a “child means a ‘person’”.

Lord Avebury: My Lords, the right reverend Prelate has a point when he says that the conditions of a country of origin should come into considerations of the welfare of the child. When the noble Baroness was moving her amendment, she was very assiduous in underlining the fact that we are talking about the way that the Border and Immigration Agency carries out its duties and not the primary functions it has to discharge in pursuance of the Immigration Act.

We should maintain that distinction in our minds. As the right reverend Prelate correctly feared, it is this point which makes the Government reluctant to accept the wording of the amendment. They will say that if this is on the statute book, people will not be able to deport children and that they would have to cope with massive judicial reviews immediately prior to the exercise of these functions. I prefer the interpretation of the noble Baroness, Lady Hanham, of the amendment; namely, that it applies to the way in which the BIA discharges its duties and not those concerning its primary statutory functions as safeguarding the immigration control of this country. If we make that distinction there will be no problem, but if we fail to separate the two things in our minds and we allow the Minister to claim that we are enabling a coach-and-horses approach to JR, we will never be able to persuade the Government to accept it.

I wish to emphasise one other point. I agree with the noble Baroness about bringing in the contracted-out functions under subsection (1)(b) of the amendment. An increasing number of duties placed on the BIA are contracted out to private organisations. It is important that they should be constrained by the same rules as those who exercise these functions on behalf of the BIA. Detention centres are all managed by independent companies—for example, Yarl’s Wood, Tinsley House and Harmondsworth. I think that every one is managed for the BIA and not by the BIA. Therefore, it is essential that this clause should apply to them as it does to the BIA.

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Finally, the contracted-out functions also are not in the code of practice. I am afraid I have to say that this document is a great disappointment. I am not altogether surprised that the Government made it available to us only at 3.14 pm. They presumably did not really want anyone to pick holes in it during these proceedings. If this is what the final document is to be like, it is an enormous disappointment and Clause 21 will be an equal disappointment to your Lordships if it is found to be a false prospectus. I hope that that is not the case and that this draft can be considerably improved before we see the final version.

The Lord Bishop of Ripon and Leeds: My Lords, I, too, support Amendment No. 5 and wish to add to the evidence produced by noble Lords on the needs of those who are not eventually deported. My experience has been with families and children who have spent time in detention but who for a variety of reasons have not in the end been deported. I have had contact with their teachers in the community and have heard of the damage which their teachers believe has been done to those children during the time that they have spent in detention. While it may not be possible to avoid that, a clause like this would provide some defence against the treatment which those children have experienced.

We have heard a lot about extreme circumstances and the wholly exceptional. My difficulties are with those circumstances that do not seem to be extreme or wholly exceptional, but in which people are taken into detention and there is no clear indication that they are actually going to be deported at the end of that time. It adds to the evidence which noble Lords have produced that we really do need a clause to provide real protection for children. If the Minister cannot accept the amendment in this form, I hope that he can indicate what provision he will be able to make for children who come into the detention sector in this way.

Lord Bassam of Brighton: My Lords, I thank all noble Lords who have contributed on this important set of proposals with their usual thoughtful observations. I recognise completely that this is a sensitive issue and one which obviously excites all those concerned about the welfare of children. I am entirely at one with the motive behind the amendments, even if I cannot find myself in agreement with them. We must all make sure that we do the best for those that come into our care, and I understand why noble Lords have been so exercised on this issue.

Before I go into the detail of the amendments, it is worth responding to the general point made by the noble Lord, Lord Avebury, about the draft code which has been circulated. I answer the question about why the code does not refer to detained children in this way: the code does not make a specific reference because it has been designed to cater for the multiple circumstances and situations where BIA staff come into contact with children. The code states clearly that it will identify those specific situations which will include detention and then issue

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instructions to ensure that staff are responsive to the needs of children in those particular circumstances. Perhaps I may also make another point regarding the document. In bold and at the top it states:

So it is at a stage before it is put out for formal consultation. In that context, I should say that we are extraordinarily grateful to the children’s charities—I will not draw attention to individual charities—for their help and assistance in our thinking on this issue. Their knowledge and insights are valuable and inform us on our approach.

I am sure that noble Lords who have considered the issues presented by these proposals will share my view that it is a question of means and not just ends. Many measures that have the effect of safeguarding children are already in place and have been so for many years. Noble Lords will be aware of those measures from our debates in Grand Committee. I should like to focus on what the Government are proposing to do next so that we can make things better in the light of an up-to-date appreciation of children and migration issues. Amendment No. 5 seeks to amend Clause 21 so as to broaden the scope of the Border and Immigration Agency’s duty in relation to children, bringing it into line with the safeguarding duty in Section 11 of the Children Act 2004. It also seeks to impose the same broad duty on contractors providing services on behalf of the Border and Immigration Agency. A number of noble Lords made reference to that. I ought to make it clear at this point that we sympathise with the part of the amendment which seeks to secure that contractors providing services on behalf of the agency should have the same responsibilities in respect of children, but not with the nature of the responsibility proposed. I ought also to make clear that this is a point I shall return to when we come to debate Amendments Nos. 23 and 24 to Clause 21, which I hope is of assistance.

On the other hand, Amendment No. 16 seeks simply to make the Border and Immigration Agency subject to Section 11. Essentially, admirable though the Section 11 duty is at the level at which it has been introduced, it creates uncertainty as to how it can and should be applied in the immigration context. That uncertainty is undesirable both for applicants and for those who have to implement legislation. That is why the Government believe that a code of practice both standardises what the duty actually is and makes more transparent our commitment to safeguarding children. It is the most appropriate means by which to deal with the issue.

Before I come to the code, I would like to make some points about the amendments. First, it is inaccurate to insist that these amendments are necessary to avoid children being left unprotected. The legislation that currently provides protection for children operates regardless of a child’s immigration status. Secondly, we do not think it appropriate for the Border and Immigration Agency to have a duty which requires it to have regard to ensuring that children are growing up in circumstances consistent with the provision of safe and effective care and to

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undertake that role so as to enable those children to have optimum life chances and enter adulthood successfully, as the statutory guidance accompanying the duty requires. While the duty is not intended to interfere with the performance of the agency’s primary functions, we are very concerned that the breadth of the duty would invite challenges to our decisions on the basis that they do not promote a child’s welfare. Experience shows that many of these challenges would be made simply as a means of frustrating the implementation of quite legitimate immigration control. They could add to the already frequent attempts to delay removal or hinder other aspects of immigration control functions. For those reasons, I must resist the amendments.

However, it may be helpful to explain in more detail why the agency cannot take on a wider welfare role such as that envisaged by Section 11. The primary function of the Border and Immigration Agency is to protect UK borders by implementing and enforcing immigration legislation. This involves determining whether someone in the UK is lawfully here or not. Durable solutions for a child’s future can be made by the agencies principally charged with those responsibilities. In reaching that determination, the Border and Immigration Agency must ensure that it looks after children quite properly. However, it cannot realistically assume a responsibility for promoting the welfare of children in the longer term, given that its primary purpose is to ascertain whether the child’s presence in the UK is lawful and to take appropriate action on that basis. It is therefore appropriate to define the agency’s responsibilities towards children in terms of keeping them safe from harm.

It is important to be clear what this means, and the code of practice that we are proposing will do this in detail. The proposed code of practice commits the Border and Immigration Agency to doing the following things. We will identify specifically those situations where we come into contact with children, whether face to face or on paper, and we will ensure that we handle those situations in ways responsive to the needs of those children. We will keep staff informed of the professionally accepted signs and indicators that help to identify when a child may be at risk of harm and give them the confidence to take action. We will take action where relevant by referring a child to the appropriate agency—that with the principal statutory responsibility, usually the local authority.

While we cannot anticipate fully the areas of work of the independent Border and Immigration Agency inspectorate, we can and will encourage the chief inspector to look at the reasons for detaining families with children, the way in which they contribute to the outcome of the immigration process, and the nature and quality of the recorded information about detention. We will consider and evaluate alternatives to detention. We will require all staff to undertake an introductory training course in how to identify and be responsive to children and their needs. That training has of course been prepared with input from groups outside the agency, and is ready to be introduced. We will identify and train a children’s adviser in each

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business unit to act as a point of reference when an issue involving a child arises, such as whether to refer to another agency or not. We see the creation of this role as an important part of embedding a change of culture and approach to children within the agency. We will increase our participation in the local safeguarding children’s boards and will develop and keep up to date a protocol with the family courts on how to approach cases where a child subject to immigration control is likely to be made the subject of a care order. We will take part in appropriate information sharing with other agencies that have responsibilities for safeguarding children.

The code is a significant programme of work for the agency where the aim is to encourage staff to realise how they can become more responsive to the needs of children. It also requires staff to be vigilant and to make every effort in their work to keep children safe from harm.

7.30 pm

Crucially, this will not be simply a token document. There will be instructions to staff as a result of the code and these are being developed with input from outside organisations with relevant experience. Staff will be expected to follow this code or to have clear reasons for not doing so. The code will be a detailed document and in drafting we will continue to consult widely. We will also continue to work with interested parties such as the Association of Directors of Children’s Services, the new Department for Children, Families and Schools, the Children’s Commissioner, officials in the devolved Administrations as well as the Children’s Society and Barnardo’s, which has already expressed its willingness to work with us on the code’s development. In fact the Children’s Commissioner said the following in relation to the code:

So that is our approach. I argue that it is thorough, comprehensive and in the long-term interests of children who, for one reason or another, come into contact with the Border and Immigration Agency.

Perhaps I should say in answer to the noble Lord, Lord Avebury, that, in addition, the code aims to establish in Part 1 principles that staff in the BIA must follow. The code will be supported by a series of strong instructions to staff, eight of which are in draft, including one pertaining in particular to children detained.

So that is our approach to these matters. I understand the sensitivity of the issues involved but, given what I have said, I would urge noble Lords to withdraw the amendment.

Baroness Hanham: My Lords, I thank the Minister for his reply and I thank all of those who have contributed to the debate and who have supported my amendment. I am grateful to the Minister for letting us have a copy of the code of practice, but it is a bit late. After listening to what he said in his response, it

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seems to me that what we have got is probably not complete. It categorises itself as a high-level document and some of the criticisms which have arisen from the noble Lord, Lord Avebury, and one or two others, are probably brought about by the fact that it clearly does not quite cover all the areas that it is going to cover. I gather from the way the Minister has put his points when talking about the future that indeed there is far more to be done on this code of practice than is here before us. So it will not help a great deal as we consider whether the amendment should continue to be moved.

I think I am grateful for the Minister’s sympathy with the contracting-out aspect. I hope in expressing that, he means that he will come back at a later stage with something which will help us with that issue. Where other agencies are involved, it is terribly important that they are covered by this code of practice. It is essential that anyone dealing with children under these extremely difficult circumstances should at least be following a common line so that all agencies know what they are doing and are all doing the same thing. That may or may not be covered—it was not absolutely clear whether it would be—but I hope that later on in the Bill the Minister will be able to help on that issue, although I am not going to count on it.

I turn now to the main part of the amendment which concerns the safeguarding and welfare of the child. Again, I hear what the Minister says—that the Border and Immigration Agency cannot have a responsibility for the welfare of the child—but if the agency does not have responsibility for the welfare of the child, who on earth does? The children are within its control and within its remit. It may be that that throws it a little wider as far as responsibilities are concerned under the Children Act, but at the moment these children are outside all the areas that will keep them safe from harm and look after their welfare.

I thank the Minister for his rather limited response to the amendment. Clearly, it is too late for us to give proper time to the code of practice as it appears at the moment. As the Minister is absolutely adamant about not including a duty to promote the welfare of the child, I wish to test the opinion of the House.

7.35 pm

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 104; Not-Contents, 105.

Division No. 2


Addington, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Avebury, L.
Barker, B.
Bottomley of Nettlestone, B.
Buscombe, B.
Byford, B.
Carlile of Berriew, L.
Carnegy of Lour, B.
Cathcart, E.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cox, B.
Crickhowell, L.
Darcy de Knayth, B.

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Dean of Harptree, L.
Denham, L.
Dixon-Smith, L.
D'Souza, B.
Erroll, E.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Goodhart, L.
Greaves, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Howarth of Breckland, B.
Howell of Guildford, L.
Hylton, L.
Judd, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lee of Trafford, L.
Listowel, E.
Livsey of Talgarth, L.
Lyell, L.
Mackay of Clashfern, L.
Mackie of Benshie, L.
McNally, L.
Mar and Kellie, E.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawson, L.
Meacher, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Park of Monmouth, B.
Perry of Southwark, B.
Rawlings, B.
Redesdale, L.
Rennard, L.
Ripon and Leeds, Bp.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Ryder of Wensum, L.
Saatchi, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Sharples, B.
Sheikh, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
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