Case No. UKUT-00227-(IAC)

ing with children. They include: • Senior mana g ement commitment to the impo r tance of safeguarding and promoting c hildre n ’ s w elfare; • A clear statement of the a g ency ’ s responsibilities t ow ards c hildren a v ailable for all staff; • A clear line of accountability within the or g anisation for w ork on safeguarding and promoting the w elfare of c hildren; • Se r vice de v elopments that ta k e account of the need to safeguard and promote w elfare and is info r med, where appropriat e , b y the views of c hildren and families; • Staff training on safeguarding and promoting the w elfare of c hildren for all staff working with or in contact with children and families; • Safe rec r uitment procedures in place; • Effect i v e inte r -a g ency w orking to safeguard and promote the w elfare the c hildren, and • Effect i v e info r mation sharin g . 4. Section 55 is intended to achieve the same effect as section 11 of the Children Act 2004 (the 2004 Act) which places a similar dutyon other public organisations1. As well as providing a driver for improvement within the UK Border Agency, the duty will also help to improve inter-agency working in respect of children. Section 55 applies to the carrying out of the relevant functions anywhere in the UK. THE ROLE AND S TA TUS OF THIS G UIDANCE 5. This guidance is aimed at staff of the UK Border Agency and contractors when carrying out UK Border Agency functions. It setsout the key arrangements for safeguarding and promoting the welfare of children. The guidance is modelled on the guidance which supports section 11 of the 2004 Act2. It isin two parts. Part 1 describes the general arrangements to safeguard and promote the welfare of children which are likely to be common to all agencies covered by section11 and, in the case of the UK Border Agency, by section 55. Part 1 is intended to make clear how the work of the UK Border Agency fits 1 For the full list of bodies cove r ed by Section 11 see paragraph 1.1 of the guidance belo w . 2 Statutor y Guidance on making a r rangements to safegua r d and p r omote the welfa r e of child r en under section 11 of the Child r en Act 2004 updated Ma r ch 2007. Issued by DCSF and available at www.dcsf.gov.uk/ever ychildmatters/_download/?id=1372 into the wider arrangements, although not all of Part 1 is directly relevant to it. Part 2 sets out how those general arrangements apply specifically to the UK Border Agency.6. This guidance is issued under section 55 (3) and 55 (5) which requires any person exercising immigration, asylum, nationality and customs functions to have regard to theguidance given to them for the purpose by the Secretary of State. This means they must take this guidance into account and, if they decide to depa r t f r om it, h a v e clear r easons f or doing so. 7. Where private or voluntary organisations are commissioned to provide services on behalf of the UK Border Agency, the agreement under which the arrangements are made should require that the private or voluntary organisation concerned takes this guidanceinto account in the provision of those services and, if they decide to depart from it, haveclear reasons for doing so.8. The guidance does not replace any current operational instructions and should be read alongside them. T IME T ABLE 9. The commencement date for section 55 ofthe Borders, Citizenship and Immigration Act2009 was 2 November 2009. P A R T 1 UNDERS T ANDING THE DUTY TO MAKE ARRANGEMENTS TO SAFEGUARD AND PROMOTE THE WEL F ARE OF CHILDREN 1.1. Section 11 of the 2004 Act places a duty on key people and bodies in England to make arrangements to ensure that their functions are discharged with regard to the need to safeguard and promote the welfare of children. Section 28 of the Act requires similar bodies in Wales to do the same. Theapplication of this duty will vary according to the nature of each agency and its functions. The key people and bodies that are covered by the duty are: • local authoritie s , including district councils; • the police; • the probation se r vice; • NHS bodies(Strategic Health A uthoritie s , Designated Special Health A uthoritie s , Prima r y Care T r ust s , NHS T r ust s , Local Health Boards and NHS F oundation T r usts); • Or g anisations (cu r rently the Connexions Service) providing services under section114 of the Learning and Skills Act 2007;Border Agency in an Act that deals directly with UK Border Agency work. It therefore appears in section 55 of the Borders, Citizenship and Immigration Act 20093.1.3. The duty does not give the UK Border Agency any new functions, nor does it over- ride its existing functions. It does require the Agency to carry out its existing functionsin a way that takes into account the need to safeguard and promote the welfare of children.1.4. Safeguarding and promoting the welfare of children is defined in the guidance to section11 of the 2004 Act (section 28 in Wales) and in Working Together to Safeguard Children4 as: • protecting c hildren from maltreatment; • pre v enting impai r ment of c hildre n ’ s health or de v elopment (where health means ‘p h ysical or mental health’ and de v elopment means ‘p h ysical, intellectual, emotional, social or beh a vioural de v elopment’); • Y outh offending teams; • G o v e r nors / Directors of Prisons and Young Offender Institutions; • Directors of Secure T raining Centres; • T he British T ranspo r t P olic e . 1.2. The UK Border Agency functions are not devolved, unlike those of the bodies listedin the 2004 Act, and so the Government has chosen to apply the duty to safeguard and promote the welfare of children to the UK 3 In Scotland the legislative p r ovisions for p r otecting child r en and p r omoting their welfa r e a r e contained in the P r otection of Child r en ( Scotland ) Act 2007 and the Child r en ( Scotland ) Act 1995. The principles of co-operation and info r mation sharing between agencies in the safegua r ding of child r en a r e, howeve r , impor tant themes in the legislative framework and guidance gove r ning the deliver y of child r en’s ser vices in Nor the r n I r eland, whe r e the legislative p r ovisions a r e the Child r en (Nor the r n I r eland) O r der 1995, and the Safegua r ding V ulnerable G r oups (Nor the r n I r eland) O r der 2007. In both jurisdictions A r ea Child P r otection Committees a r e the means of p r oviding local p r ocedu r es and p r ocesses for agencies to comply with the legislation to safegua r d child r en and to co-operate togethe r , and for anyone working with child r en. 4 The W elsh Assembly Gove r nment has p r oduced its own version of “ W orking T ogether” with a definition that matches this albeit exp r essed in a dif fe r ent wa y . It is available at: http://cymru.gov.uk/pubs/circulars/2007/nafwc1207en. pdf?lang=en • ensuring that c hildren are g r o wing up in circumstances consistent with the pr o vision of safe and effect i v e care; and • unde r taking that role so as to enable those c hildren to h a v e opti m um life c hances and to enter adulthood successfull y . 1.5. The overall framework set out in the 2004Act is to provide a basis for achieving the vision of safeguarding set out in the report Safeguarding Children5 i.e: • all a g encies w orking with c hildren, y oung people and their families ta k e all reasonable measures to ensure that the risks of ha r m to c hildre n ’ s w elfare are minimised; and • where there are conce r ns about c hildren and y oung people ’ s w elfar e , all a g encies ta k e all appropriate actions to address those conce r n s , w orking to a g reed local policies and procedures in pa r tnership with other a g encie s . FRAMEWORK FOR MAKING E FFECTIVE ARRANGEMENTS TO SAFEGUARD AND PROMOTE CHILDREN’S W EL F ARE 1.6. Each agency will have different contributions to make towards safeguarding and promoting the welfare of children depending on the functions for which they have responsibility. For example, the main contribution of some services might be to identify and act on their concerns about the welfare of children with whom they come into contact, perhaps during or following completion of a common assessment while others might be more involved in supporting a child once concerns have been identified. The UK Border Agency is among the former. There are some key features of effective arrangements to safeguard and promote the 5 Chief Inspector of Social Ser vices, Commission for Health Imp r ovement, Her Majesty’s Chief Inspector of Constabular y , Her Majesty’s Chief inspector of the C r own P r osecution Ser vice, Her Majesty’s Chief Inspector of the Magistrates’ Cour ts Ser vice, Her Majesty’s Chief Inspector of Schools, Her Majesty’s Chief Inspector of Prisons, Her Majesty’s Chief Inspector of P r obation (2002). Safegua r ding Child r en – A Joint Chief Inspectors’ Repor t on A r rangements to Safegua r d Child r en. London , Depar tment of Health. welfare of children which all agencies will need to take account of in addition to those that are particular to its own work, when undertaking their particular functions. These arrangements will help agencies to create and maintain an organisational culture and ethos that reflectsthe importance of safeguarding and promoting the welfare of children. STR A TEGIC AND O RGANIS A TIONAL A RRANGEMENTS 1.7. Many organisations subject to the section 11 duty (or in Wales the section 28 duty) are also required to take part in Local Safeguarding Children Boards (LSCBs). LSCBs are thekey statutory mechanism for agreeing how the relevant organisations in each localarea cooperate to safeguard and promote the welfare of children in that locality, and for ensuring their effectiveness. The Local Authority convenes and is also a member of the LSCB. The Board partners are set out insection 13(3) of the 2004 Act for England and in section 31(3) for Wales6. They are: • district councils in local g o v e r nment areas that h a v e them; • the c hief police officer for a police area of whi c h any pa r t falls within the area of the Local A uthority; • the local probation board for an area of whi c h any pa r t falls within the area of the Local A uthority; • the Y outh Offending T eam for an area of whi c h any pa r t falls within the area of the Local A uthority; 6 In W ales they a r e: the members a child r en’s ser vices authority in W ales ; a Local Health Boa r d; an NHS t r ust all or most of whose hospitals, establishments and facilities a r e situated in W ales; the police authority and chief officer of police for a police a r ea in W ales; the British T ranspor t Police Authorit y , so far as exe r cising functions in r elation to W ales; a local p r obation boa r d for an a r ea in W ales; a youth of fending team for an a r ea in W ales; (h) the gove r nor of a prison or secu r e training cent r e in W ales (o r , in the case of a contracted out prison or secu r e training cent r e, its di r ector); ( i ) any person to the extent that he is p r oviding ser vices pursuant to a r rangements made by a child r en’s ser vices authority in W ales under section 123(1)(b) of the Lea r ning and Skills Act 2000 (c. 21) (youth suppor t ser vices). • Strategic Health A uthorities and Prima r y Care Trusts for an area of which any part falls within the area of the Local Authority; • NHS T r usts and NHS F oundation T r ust s , all or most of whose hospitals or establishments and facilities are situated in the Local A uthority area; • the Connexions se r vice operating in any pa r t of the area of the Local A uthority; • CAFCASS (Children and F amily Cou r ts Advisory and Support Service), • the G o v e r nor or Director of any Secure T raining Centre in the area of the Local A uthority; and • the G o v e r nor or Director of any prison in the Local Authority area that ordinarily detains children.1.8. Other organisations can be involved in LSCB by agreement. The UK Border Agency is one of these. For details of how the UK Border Agency fits in with these arrangements see Part 2 of this guidance.1.9. At an organisational or strategic level within individual agencies, key features for safeguarding and promoting the welfare of children are: a. Senior management commitment to the impo r tance of safegua r ding and p r omoting child r en’s welfa r e Senior managers will need to demonstrate leadership, be informed about, and take responsibility for the actions of their staff who are providing services to children and their families. This could mean identifying a named person at senior management level tochampion the importance of safeguarding and promoting the welfare of children throughout the organisation. Senior managers will alsobe responsible for monitoring the actionsof their staff to safeguard and promote the welfare of children. This includes ensuringthat children and young people are listened to appropriately and concerns expressed about their or any other child’s welfareare taken seriously and responded to in an appropriate manner. b. A clear statement of the agency’s r esponsibilities towa r ds child r en is available for all sta f f This should include any children in the care of the agencies, any with whom they work directly and those with whom they come into contact. It could form part of an agency’s existing policy and/or procedures. All staff should be made aware of their agency’s policies and procedures