Case No. UKUT-00227-(IAC)

• 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 on safeguarding and promoting the welfare of children and the importance of listening to children and young people, particularly when they are expressing concerns about either their own or other children’s welfare. Effective systems should be in place for children, staff and other peopleto make a complaint where there are concerns that action to safeguard and promote a child’s welfare has not been taken in accordance with the agency’s procedures. c. A clear line of accountability within the o r ganisation for work on safegua r ding and p r omoting the welfa r e of child r en It should be clear who has overall responsibility for the agency’s contribution to safeguarding and promoting the welfare of children and what the lines of accountability are from each staff member up through the organisation to the person with ultimate accountability for children’s welfare. Itshould also be clear with whom each staff member should discuss, and to whom they should report, any concerns about a child’s welfare. Responsibilities for safeguarding and promoting the welfare of children can operate at three levels:i. Individual, which can be encompassed within job descriptions;ii. Professional, which is governed by codes of conduct for different disciplines or by distinct guidance on the functions being carried out; andiii. Organisational, with clear linesof accountability throughout the organisation to senior office level. d. Se r vice development takes account of the need to safegua r d and p r omote welfa r e and is info r med, whe r e app r opriate, by the views of child r en and families In developing services, those responsible should consider how the delivery of these services will take account of the need to safeguard and promote the welfare of children. e. Sta f f training on safegua r ding and p r omoting the welfa r e of child r en for all sta f f working with o r , depending on the agency’s prima r y functions, in contact with child r en and families Staff should have an understanding of both their roles and responsibilities and those of other professionals and organisations. This is essential for effective multi- and inter-agency collaboration. Agencies are encouraged to enable staff to participate in training provided on an inter-agency basis as well as in single agency training provided by the agency itself. Safeguarding and promoting the welfareof children is one of the six areas of the Common Core of Skills and Knowledge for the Children’s Workforce (2005) prospectus. This prospectus informs the training provided to all those working in children’s services. Training on safeguarding and promoting the welfare of children should be relevant to the roles and responsibilities of each staff member. f. Safer r ec r uitment Robust recruitment and vetting procedures must be in place to help prevent unsuitable people from working with children. This means thorough checks are carried out on all people as part of the recruitment process, and references are always taken up. People who recruit staff to work with children must have the appropriate training. The Safeguarding g. E f fective inter-agency working to safegua r d and p r omote the welfa r e of child r en This involves agencies and staff working together to safeguard and promote the welfare of children. Inter-agency working is crucial to ensuring the effectiveness of such working. The sharing of information and constructive relationships between individual membersof staff and teams should be supported by a strong lead from the Lead Member for Children’s Services, and Director of Children’s Services and commitment of all ChiefOfficers. This effective working should beat a strategic and an individual child level, in accordance with guidance from their LSCB, regarding safeguarding children, or for the Prison Service, in accordance with the policy agreed with the LSCB local to each prison. The LSCB guidance should be consistent with the current statutory guidance The Framework for the Assessment of Children in Need and their Families (2000) and Working Together to Safeguard Children (2006). TheGovernment’s practice guidance, What To Do If You’re Worried A Child Is Being Abused (HM Government 2006), is for use by practitioners and their managers in all agencies to inform them about what to do when they have concerns that a child may be a child in need, including concerns about a child whom itis believed is, or may be at risk of, suffering significant harm7. The UK Border Agency contribution to inter-agency work is described in Part 2. h. Info r mation sharing Effective information sharing by professionals is central to safeguarding and promoting the welfare of children. It is therefore essential that effective arrangements for sharing information about a child and their family within each agency and between agencies are in place. This will usually be set out in the form of a protocol or information sharing agreement setting outVulnerable Groups Act 2006 establishes a new vetting and barring scheme from October2009 for those who work with children and vulnerable adults. 7 These documents can be found at: www.dcsf.gov.uk/ever ychildmatters/1240; www.dcsf.gov.uk/ever ychildmatters/1236; www.dcsf.gov.uk/ever ychildmatters/_download/?id=760 the process to be followed and the legal and security issues that need to be considered. However, the lack of an information sharing agreement between agencies should neverbe a reason for not sharing information that could help a practitioner deliver services to a child. The Welsh version of “Working Together” contains non-statutory guidance on good practice in information sharing.The decision to share or not to share information about a child should always be taken on a case by case basis based on professional judgement, supported by the cross-Government Information Sharing:Practitioners’ Guide (published in April 2006)8 and in line with the provisions of the Data Protection Act and Human Rights Act 1998 with consideration of any duty of confidence which is owed and the data security issues raised by the Cabinet Office guidelines on handling personal data. Full guidance on these issues is provided in Information Sharing: Practitioners’ Guide (HM Government, 2006). The consent of children, young people and their caregivers should be obtained when sharing information unless to do so would place the child at risk of significant harm.1.10. In order to safeguard and promote children’s welfare, arrangements should ensure that: • all staff in contact with c hildren understand what to do and the most effect i v e wa ys of sharing info r mation if they belie v e that a c hild and family m a y require pa r ticular se r vices in order to a c hie v e their opti m um outcomes; • all staff in contact with c hildren understand what to do and when to share info r mation if they belie v e that a child may be a child in need, including those children suffering or at risk of suffering harm; • appropriate a g ency-specific guidance is produced to complement guidance issued b y central G o v e r nment, and su c h guidance and appropriate training is made a v ailable to existing and new staff as pa r t of their induction and on g oing training; • guidance and training specifically c o v ers the sharing of info r mation bet w een profession s , or g anisations and a g encie s , as w ell as within them, and a r ran g ements for training ta k e into account the v alue of multi-agency training as well as single agency training; • mana g ers in c hildre n ’ s se r vices are fully co n v ersant with the le g al frame w ork and g ood practice guidance issued for practitioners w orking with c hildren. CON T ACT P OINT 9 1.11. Contact Point is a key part of the Every ChildMatters programme to improve outcomes for children and will support practitioners, local authorities and other organisations infulfilling their duties to safeguard and promote the welfare of children. It is currently being delivered in phases that began in May 2009and that are gradually being rolled out to other local authorities and partners. Contact Point will be the quick way to find out who else is working with the same child or young person and allow services to contact one anothermore efficiently. This basic online directory will be available to authorised staff who need it do their jobs.1.12. Contact Point will not contain any detailed information (such as case notes, assessments, and clinical data or exam results). The legal framework for the operation of Contact Point is provided by regulations, made under section12 of the 2004 Act and further operational details are set out in Statutory Guidance that was published in late 2007. 8 This is c r oss-gove r nment guidance that complements and suppor ts policies to imp r ove info r mation sharing ac r oss all ser vices. It is at www.dcsf.gov.uk/ever ychildmatters/_download/?id=103 9 Contact Point exists in England onl y . WORK WITH INDIVIDUAL CHILDREN AND THEIR F AMILIES 1.13. The ways in which agencies work with or have contact with individual children and their families will differ depending on the functions of each agency. Some will focus on directwork with children and young people, whereas others will work with children and their families, and still others will work with adults with parenting responsibilities for children.1.14. In order to safeguard and promote the welfare of individual children, the following shouldbe taken into account, in addition to the relevant section of Part 2 of this guidance. The key features of an effective system are: • Children and y oung people are listened to and what they h a v e to s a y is ta k en seriously and acted on; • F oll o wing assessment, rele v ant se r vices are pr o vided to respond to the assessed needs of c hildren and to suppo r t parents or carers in effect i v ely unde r taking their parenting role s . W here v er su c h se r vices are being pr o vided the UK Border A g ency will ta k e account of them in planning their future interaction with the family and the c hildren. 1.15. The following principles underpin workwith children and their families to safeguard and promote the welfare of children. They are relevant to varying degrees dependingon the functions and level of involvement of the particular agency and the individual practitioner concerned. The UK Border Agency should seek to reflect them as appropriate.1.16. Work with children and families should be: • Inte r v entions ta k e place at an early point when difficulties or problems are identified; • c hild centred; • rooted in c hild de v elopment; • W here possible the wishes and feelings of the pa r ticular c hild are obtained and ta k en into account when deciding on action to be unde r ta k en in relation to him or he r . Com m unication is according to his or her preferred communication method or language; • suppo r ting the a c hie v ement of the best possible outcomes for c hildren and impr o ving their w ellbeing; • holistic in approa c h; • ensuring equality of oppo r tunity; • E t hn i c identit y , langua g e , religion , f a i t h , g ende r an d disabilit y ar e ta k e n int o accoun t whe n w orkin g wit h a c hil d an d thei r f a m il y ; • Practitioners are clear when and h o w it is appropriate to ma k e a refe r ral to Local A uthority c hildre n ’ s se r vices where c hildren m a y need se r vices to safeguard them or to promote their w elfare; • i n v ol v e c hildren and familie s , taking their wishes and feelings into account; • building on strengths as w ell as identifying and addressing difficulties; • m ulti and inte r -a g ency in its approa c h; • a conti n uing proces s , not an e v ent; • W her e c hildre n ar e bein g pr o vide d w i t h se r vice s t o respon d t o thei r need s an d suppo r t thei r w elfar e (usuall y b y L o c a l A uthorit y c h il dr e n ’ s se r vices) , p r o f e ss i on a l s includin g th e U K Borde r A g enc y c on t r i b u t e t o subsequen t plan s , inte r v ention s an d review s i n accordanc e wit h requirement s i n rele v an t regulation s an d g u i d a n ce ; • designed to identify and pr o vide the se r vices required, and monitor the impact their pr o vision has on a c hild ’ s de v elopmental pro g ress; • info r med b y evidenc e . 1.17. Some of these apply to specialisedprofessional work, whilst others relate to more general work that can affect children. Ensuring equality of oppo r tunity a. Equality of opportunity means that all children have the opportunity to achieve the best possible development. Some children may have been deprived of opportunitiesand assistance in early life and will, as a result, require services to meet their health and educational needs, to promote their immediate welfare so that they can achieve their potential into adulthood. I n v ol v ement of child r en and f amilies b. In order to appreciate the child’s needs and how they make sense of their circumstances it is important to listen and take account of their wishes and feelings. It is also important to develop a co-operative constructive working relationship with parents or caregivers so that they recognise that they are being respected and are being kept informed. Where thereis respect and honesty in relating to parents they are likely to feel more confident about providing vital information about their child, themselves and their circumstances. Building on st r engths as w ell as identifying difficulties c. Identifying both strengths and difficulties within the child, his or her family and the context in which they are living is important, as is considering how these factors have an impact on the child’s health and development. Working with a child or family’s strengths becomes an important part of a plan to resolve difficulties. Multi and Inte r a gency in app r oach d. From birth, there will be a variety of different agencies and programmes in the community involved with children and their development, particularly in relation to their health and education. Multi and inter-agency work to safeguard and promote children’s welfare starts as soon as there are concernsabout a child’s welfare, not just when there are questions about possible harm. A conti n uing p r ocess not an e v ent e. Understanding what is happening to a vulnerable child within the context of his or her family and the local community, and taking appropriate action, are continuingand interactive processes, not single events. Assessment should continue throughout a period of intervention, and intervention may start at the beginning of an assessment. P r o viding and R eviewing se r vices f. Action and services should be provided according to the identified needs of the child and family in parallel with assessment where necessary. It is not necessary to await completion of the assessment process. Immediate and practical needs should beaddressed alongside more complex and longer term ones. The impact of service provisionon a child’s developmental progress should be reviewed. In f o r med by evidence g. Effective practice with children and families requires sound professional judgements which are underpinned by a rigorous evidence base, and draw on the practitioner’s knowledgeand experience. INTER-AGENCY CO-OPER A TION TO I MPROVE THE WELLBEING OF C HILDREN 1.18. A key aspect of the Every Child Matters: Change for Children programme is about encouraging relevant services to integrate around the needs of the child through children’s trust arrangements10. To this end, section 10 of the 2004 Act places a dutyon top tier and unitary local authorities in England to promote co-operation with a view to improving the wellbeing of children, and places a reciprocal duty on ‘relevant partners’ 10 A child r en’s t r ust is the ‘wrapper’ that brings together all ser vices for child r en and young people in an a r ea underpinned by the duty to cooperate that is in the Child r en Act 2004. to co-operate with the authority in the making of these arrangements11. Most of the strategic organisations covered by the section 11 (and section 28) duty are also under a duty to co- operate with the local authority in the making of co-operation arrangements (children’s trust). Those that are not will howeverwish to engage with the local authority and partners where appropriate in the interests of promoting children’s wellbeing. As a matter of law, the UK Border Agency is not subject to the duty in section 10, and details of the UK Border Agency contribution to inter-agency work is described in Part 2. MONITORING AND INSPECTION OF ARRANGEMENTS TO SAFEGUARD AND PROMOTE W EL F ARE 1.19. Agencies’ responsibilities for safeguarding and promoting the welfare of children, including the arrangements they make under section 11, will be monitored through the LSCB.1.20. Agencies, and the LSCB, are subject to independent assessment and inspection. The Framework for the Inspection of Children’s Services, published in July 2005 by Ofstedon behalf of all relevant inspectorates and commissions, sets out principles to be applied by an inspectorate or commission assessing any children’s service, and defines the key judgements which, where appropriate and practical, inspections will seek to make12. Itis available from www.ofsted.gov.uk. The key judgements include several relating to children and young people staying safe.1.21. Details of the arrangements that apply to the UK Border Agency are contained in Part 2 of this guidance. 11 The r elevant powers to imp r ove cooperation and well-being a r e set out in s.25 for W ales , whe r e child r en’s t r usts do not exist and which has taken a dif fe r ent app r oach to applying co- operation a r rangements to that in England . 12 The inspection body in W ales is Estyn which per fo r ms a similar function to that of Ofsted in England . P A R T 2 THE ROLE OF THE UK BORDER AGENCY IN REL A TION TO SAFEGUARDING AND PROMOTING THE WEL F ARE OF CHILDREN I NTRODUCTION 2.1. The UK Border Agency is an executive agency of the Home Office and its primary dutiesare to maintain a secure border, to detect and prevent border tax fraud, smuggling and immigration crime, and to ensure controlled, fair migration that protects the public and that contributes to economic growth and benefits the country.2.2. It carries out these duties by applying and enforcing the Immigration Acts and the Immigration Rules, by having regard to policy guidance and instructions issued by the Secretary of State, and by exercising general customs functions as defined in the Borders, Citizenship and Immigration Act2009. The application and enforcement of the Immigration Acts includes removing from the UK persons who have no legal entitlement to remain in the UK and, in certain circumstances, detaining those individuals pending their removal from the UK. The UK BorderAgency also has a role in granting protectionto those who need it according to international conventions and the laws of the UK.2.3. Within this legislative and policy framework, section 55 of the 2009 Act requires the Secretary of State to make arrangements to ensure that immigration, asylum, nationality and customs functions are exercised having regard to the need to safeguard and promote the welfare of children in the United Kingdom. The functions of the Director of Border Revenue must also be exercised having regard to the need to safeguard and promote the welfare of children in the United Kingdom. The duty does not create any new functions, nor does it over-ride any existing functions, rather it requires them tobe carried out in a way that takes into accountthe need to safeguard and promote the welfare of children.2.4. The UK Border Agency’s main contributions to safeguarding and promoting the welfare of children include: • Ensuring g ood treatment and g ood interactions with c hildren throughout the immi g ration and customs proces s . • Applying l a ws and policies that pre v ent the exploitation of c hildren throughout and foll o wing facilitated ille g al ent r y and traffi c kin g . • Detecting at the border any material lin k ed to c hild exploitation through po r no g rap h y . 2.5. Other parts of the UK Border Agency’s contribution include: • E x ercising vigilance when dealing with c hildren with whom staff come into contact and identifying c hildren who m a y be at risk of ha r m. • Making timely and appropriate refe r rals to agencies that provide ongoing care and support to children. MAKIN G ARRANGEMENT S T O SAFEGUAR D A N D PROMOT E WEL F AR E I N TH E U K BORDE R A G E N C Y 2.6. The UK Border Agency acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights,the EU Reception Conditions Directive, theCouncil of Europe Convention on ActionAgainst Trafficking in Human Beings, and the UN Convention on the Rights of the Child. The UK Border Agency must fulfilthe requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies.2.7. The UK Border Agency must also act according to the following principles: • E v e r y c hild matters e v en if they are someone subject to immi g ration control. • In accordance with the UN Co n v ention on the Rights of the Child the best interests of the c hild will be a prima r y consideration (although not necessarily the only consideration) when making decisions affecting c hildren 13 . • Ethnic identit y , langua g e , religion, faith, g ender and disability are ta k en into account when w orking with a c hild and their famil y . • Children should be consulted and the wishes and feelings of c hildren ta k en into account where v er practicable when decisions affecting them are mad e , e v en though it will not al wa ys be possible to rea c h decisions with whi c h the c hild will a g re e . In instances where parents and carers are present they will h a v e prima r y responsibility for the children’s concerns. • Childre n shoul d h a v e thei r application s d e a l t wit h i n a timel y wa y an d tha t minimise s th e unce r taint y tha t the y m a y e x p e r i e n c e . 2.8. When speaking to a child or dealing with a case involving their welfare, staff must be sensitive to each child’s needs. Staff must respond to them in a way that communicates respect, taking into account their needs, and their responsibilities to safeguard and promote their welfare. 13 Cf. UNHCR Guidelines on Dete r mining the Best Inte r ests of the Child, pages 14 -15 section entitled “The Use of the T e r m ‘Best Inte r ests’ in the CRC” (CRC = Convention on the Rights of the Child). SENIOR MANAGEMENT COMMITMENT AND ACCOUN T ABILITY 2.9. There shall be a senior member of staff (the “Children’s Champion”) who is responsible to the Chief Executive of the UK Border Agency for promoting the duty to safeguard and promote the welfare of children throughout the UK Border Agency, for offering advice and support to UK BorderAgency staff in issues related to children, and identifying and escalating areas of concern.2.10. Senior managers throughout the UK Border Agency remain directly responsible for monitoring the actions of their staffto safeguard and promote the welfare of children. This includes ensuring that children are listened to appropriately and concerns expressed about their or any other child’s welfare are taken seriously and respondedto in an appropriate manner. In addition, an identified member of the senior civil service will have lead responsibility for promoting the duty within each business area. CLEAR S TA TEMENTS OF RESPONSIBILIT Y , A CLEAR LINE OF ACCOUN T ABILITY 2.11. Responsibility for the UK Border Agency’s contribution to safeguarding and promoting the welfare of children lies with each member of staff according to their role. They are accountable to their line managers for this, with ultimate accountability for the Agency’s contribution lying with the Chief Executive. Within the UK Border Agency each function or unit led at senior civil service level mustbe proactive in ensuring that staff at all levels within that unit are aware of the duty and its relevance to their work. The approach might take the form of regularly finding time at team meetings to ensure that the requirements are known and understood or issuing specific instructions depending on the role andwork of the unit. Managers should aim to encourage and enable a positive attitude to the needs of children among their staff as well as setting out clear formal instructions.2.12. There must be clear arrangements whereby staff who become aware of instances wherethe duty is not being taken properly into account are able to report their concerns. These may be general concerns about the effectiveness of these arrangements; they mayrelate to the way in which a particular child was dealt with by the UK Border Agency; or, they may relate to the attitude and behaviour ofstaff towards children. Where staff members have any concern of this sort, they should first consider raising the matter with their linemanager or with a line manager above that level (e.g. their countersigning officer). However, there may be occasions when because of the nature of their concerns, staff feel unableto report their concerns in this way. In such cases, staff should express their concerns to the UK Border Agency’s Children’s Champion or other senior official with lead responsibility for children’s issues. The Children’s Championshould treat the matter as a confidential referral as far as possible. DEVELOPMENT OF THE AGENCY’S POLICIES 2.13. The duty will be taken into account when developing any new policies. Where appropriate new operational and policy instructions should make reference to the duty and how it is to be taken into account. T RAINING 2.14. The UK Border Agency must ensure that members of staff are appropriately trained with regard to their duty to safeguard and promote the welfare of children.2.15. Training on safeguarding and promoting the welfare of children must be provided that is proportionate and relevant to the roles and responsibilities of staff members. All Agency staff should have a general understandingof children’s issues, while those whose work brings them into contact with children, directly or indirectly, should have more in- depth training. SAFER RECRUITMEN T , VETTING AND COMPLAINTS PROCEDURES 2.16. Recruitment and vetting procedures must ensure that new members of staff andthose existing employees who move to posts with contact with children work safely and competently with children. The Safeguarding Vulnerable Groups Act 2006 will establisha new vetting and barring scheme for those who work with children and vulnerable adults which the UK Border Agency will implement.2.17. The UK Border Agency complaints systems will be reviewed, and adapted if necessary, to ensure that they are suitably accessible to children. WORK WITH INDIVIDUAL CHILDREN 2.18. This guidance cannot cover all the different situations in which the UK Border Agency comes in to contact with children. Staff need to be ready to use their judgement in howto apply the duty in particular situations and to refer to the detailed operational guidance which applies to their specific area of work. In general, staff should seek to be as responsive as they reasonably can be to the needs ofthe children with whom they deal, whilst still carrying out their core functions.2.19. It may be helpful to set out here, byway of example, some of the key policy commitments which apply at different stages of the process: • W here there is doubt on a r r i v al or subsequently about who is caring for the c hild staff m ust ta k e action, for instance b y seeking evidence that a pa r ticular named adult is caring for the child with the parent’s consent. • Special care m ust be ta k en when dealing with unaccompanied asylum seeking c hildren, for instance b y c he c king with them that they understand the process for making and resolving their asylum claim, and ensuring that the p h ysical settings in whi c h their applications are dealt with are as c hild-friendly as possible to ensure that the c hild feels safe and protected. • W hen unaccompanied or s e parated c hildren are being esco r ted from their no r mal place of residence to a po r t where rem o v al will ta k e plac e , they m ust be subject to detention procedures in the sense of being served with formal notice whilst the supervised escort is taking place. Other than in these situations,unaccompanied or separated children must be detained only in the most exceptional circumstances whilst other arrangements for their care and safety are made. • F amilies who h a v e no right to be in this count r y m ust be encoura g ed to le a v e v oluntarily and detention should be used only as a last reso r t and for the sho r test possible tim e . • During any period of detention, reasonable steps should be taken to ensure that a child is able to continue his or her education, maintain contact with friends, and practise his or her religion. • F amily detention a r ran g ements m ust respect as fully as possible the principle that the prima r y responsibility for a c hild during this time still rests with the parent s . • W hen c hildren h a v e to be transpo r ted from one v e n ue to anothe r , only suitable v ehicles are used. • Nursing mothers and their c hildren m ust not be s e parated at any sta g e unless there is a compelling reason that involves the safety of the child (for instance, an accompanying parent has threatened to harm the child). Other than in the most urgent circumstances involving the safety of the child, such a decision must be made and supervised by a qualified children’s social worker.2.20. There should also be recognition that children cannot put on hold their growth or personal development until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them.2.21. In co-operation with the bodies qualified to plan for children’s futures, including Local Authority Children’s Services, schools, primary and specialist health services, arrangementsmust be put in place to secure the support needed by the individual child as they mature and develop into adulthood. Unless it is clear from the outset that a child’s future is going to be in the UK, these arrangements willnecessarily involve planning for the possibility that children and their families may have tobe returned to their countries of origin (or in some cases the EU country in which they first claimed asylum).2.22. The UK Border Agency must always make a referral to a statutory agency responsible for child protection or child welfare such as the police, the Health Service, or the Children’s Department of a Local Authority14 in the following circumstances: • W hen a potential indicator of ha r m (the most comprehens i v e su c h list is found in W o r king T ogether to S afegua r d Child r en who ha v e been T r afficked 15 and their application is wider than traffi c king cases alone) has been identified. • W hen a c hild appears to h a v e no adult to care for them and the Local A uthority has not been notified. • W hen the c hild appears to be cared for b y a person who is not a close relat i v e (i. e . where a pr i v ate fostering a r ran g ement has been identified). T he Children Act 1989 ( P a r t IX, section 66) defines pr i v ately fostered c hildren. All professionals and a g encies that w ork with c hildren m ust establish the relationship that exists bet w een any c hild and those who care for him or he r . If that relationship appears to be a pr i v ate fostering relationship — or if the relationship cannot be established — a refe r ral to the rele v ant Local A uthority m ust be mad e . 14 All r efe r ences to a Local Authority he r e in Par t 2 should be taken as a r efe r ence to Local Authority Child r en’s Ser vices in England and W ales and Scotland . In Nor the r n I r eland this will be the local Health and Social Ca r e T r ust. 15 W orkin g T ogethe r t o Safegua r d Child r e n wh o hav e bee n T raf f icke d issue d b y Hom e Of f ic e an d DCS F , Decembe r 2007 . Th e i n d i c a t o r s a r e r ep r oduce d a t Anne x A . Separat e guidanc e fo r W ale s w a s issue d b y th e W els h Assembl y Gove r nmen t i n Apri l 2008 . • W hen a c hild is a potential victim of traffi c kin g . • W hen a c hild is identified as h a ving r un awa y from their parent s , or where they are loo k ed after b y a Local A uthority and h a v e g one missing from their care placement 16 . HUMAN TRAFFICKING AND TRAFFICKING OF CHILDREN 2.23. Since 1 April 2009, the UK has been bound by the Council of Europe Convention on action against trafficking in human beings. The purpose of the Convention is to: • pre v ent and combat traffi c king in human beings; • identify and protect victims of traffi c king and to safeguard their rights; • promote inte r national co-operation a g ainst traffi c kin g . 2.24. Although the UK Border Agency was already active in identifying and supporting victimsof trafficking, the Convention has resulted inthe introduction of even stronger arrangements. All UK Border Agency staff at operational and case working grades are required to complete training on how to identify potential victims of trafficking, which contains specific sections on the features of child trafficking. Where a child is identified as vulnerable as a result of a suspicion of trafficking, details of the case are referred simultaneously to the relevant Local Authority and to specially trained ‘competent authority’ teams based in the UK Border Agency and the UK Human Trafficking Centre. 1 6 UKB A s t a f f mus t alway s mak e a r efe r ra l t o a Loca l Authorit y u s i n g th e UKB A fo r m availabl e fo r thi s purpos e a t http://horizon/ind/ manuals/keeping-children-safe/resources/word/ReferralForm15. doc ( W o r d) , o r http://horizon/ind/manuals/keeping-children- safe/resources/word/ReferralForm16.doc. (E-mail) . F u r the r u s e f u l info r matio n ca n b e foun d i n “ Statuto r y Guidanc e o n Child r e n wh o r u n awa y an d g o missin g f r o m hom e o r ca r e ” p r epa r e d t o s upp o r t Loca l Authoritie s an d issue d unde r s . 7 o f th e Loca l Authorit y Socia l S e r vice s Ac t 197 0 b y th e DCS F i n Jul y 2009 . I t i s availabl e a t www.dcsf.gov.uk/ever ychildmatters/_download/?id=6178 Whils t th e guidanc e i s speci f i c t o Englan d th e challeng e i s commo n ac r os s al l fou r countrie s o f th e Unite d Kingdo m an d eac h i s workin g t o add r es s th e issue s i n way s tha t mee t thei r ow n ci r cumstance s an d n ee d s . 2.25. These specially trained ‘competent authority’teams were established under the Council of Europe Convention on Action against Trafficking in Human Beings and consider all relevant information, including anyprovided by local authority Children Services, in determining whether a case meets the thresholds for trafficking set out in the Convention. A positive decision will leadto a 45-day reflection period during which the victim will have access to support and will not be removed from the UK. This may be followed by the grant of an extendable residence permit. This is a significant safeguarding role for all UK Border Agencystaff and a major contribution by the Agency to the wider safeguarding of children17. WORKING WITHIN THE DEVO L VED ADMINISTR A TIONS OF W ALES , SCOTLAND AND NO R THERN I RELAND 2.26. Statutory children’s services have been devolved to each of the devolved administrations of Scotland, Wales, and Northern Ireland. Referrals to children’s services must be made to the relevant public authority by the UK Border Agency when members of staff have identified childrenas being in need or at risk. Differences in legislation and local arrangements for making referrals must be respected and, where necessary, the relevant UK Border Agency regional directors will ensure that these differences are taken into account and suitable arrangements developed in Northern Ireland, Scotland and Wales.2.27. For instance, in Scotland there is a Children’s Charter that sets out what children and young people need and expect to help protect them from harm. It has been developed through talking to children and young people whohave experienced the need to be protected and supported - but what it says applies to any child.2.28. It is available at www.scotland.gov.uk/library5/education/ccel-00.asp and UK 1 7 Th e a r rangement s i n o v e r vie w a r e o n th e Hom e Of f ic e w e b s i t e a t http://police.homeoffice.gov.uk/operational-policing/ safeguarding-vulnerable-persons/child-trafficking/ Border Agency staff working in Scotland should seek to be guided by and to follow it in their interactions with children. LOCAL SAFEGUARDING CHILDREN B OARDS AND INTER-AGENCY W ORKING 2.29. In support of effective interagency working, the UK Border Agency should participatein LSCBs where appropriate and invited to do so, and should seek to contribute in accordance with Working Together to Safeguard Children (2006). The UK Border Agency isnot a statutory member of LSCB nor is it a statutory partner under section 13 (section31 in Wales) of the 2004 Act. Instead the UK Border Agency will be invited to participatein those LSCBs where its presence is agreed to be necessary or desirable by Directorsfor Children and Learning in Regional Government Offices, or the Director of Children’s Services with responsibility for the particular Board or by the UK BorderAgency regional director. The work of LSCBs is co-ordinated by regional and national meetings and the UK Border Agency will make an appropriate contribution to these by agreement with the meeting organisers. The UK Border Agency should also take part inany appropriate inter-agency training arranged by LSCBs. In Scotland and Northern Ireland the UK Border Agency will co-operate with Child Protection Committees in the same way.2.30. The UK Border Agency will allow any LSCB in whose work it participates as an invited partner to include it in these monitoringand continuous improvement processes and must respond appropriately to concerns that are expressed as a result. The UK Border Agency is also subject to inspection from the independent Chief Inspector of the Border Agency which may include children’s issues in its inspections, and from the Chief Inspector of Prisons who inspects all facilities in which children and young people may be detained.2.31. The UK Border Agency will assist other appropriate agencies who have contact with children and who are seeking to safeguard a child and promote his or her welfare. INFORM A TION SHARING 2.32. The UK Border Agency should make best use of information exchanges between agencies including Contact Point and should ensurethat other safeguarding agencies recognise, accept and respond to the referral forms that it sends to these and other bodies.2.33. UK Border Agency staff should work with other statutory agencies, including but not limited to, LSCBs, children’s services, the police and other relevant agencies. UK Border Agency staff should ensure that they share information appropriately with those agencies and with due regard to the provisions of the Data Protection and Human Rights Act 1998 and any duty of confidentiality which may exist. There should be clear responsibility within the agency for putting in place, and ensuring that all staff are aware of andfollow procedures for ensuring that relevant information is passed to those other agencies where necessary. CHILDREN AND UK BORDER AGENCY S T AFF OVERSEAS 2.34. The statutory duty in section 55 of the 2009Act does not apply in relation to children who are outside the United Kingdom. However, UK Border Agency staff working overseas must adhere to the spirit of the duty and make enquiries when they have reason to suspectthat a child may be in need of protection or safeguarding, or presents welfare needs that require attention. In some instances international or local agreements are in place that permit or require children to be referred to the authorities of other countries and UK Border Agency staff will abide by these.2.35. As a matter of policy, posts overseas that receive or deal with applications will seek to work with local agencies in order to develop arrangements that will protect children, or promote their welfare, or reduce the risk of their being trafficked and exploited.2.36. Before taking up entry clearance or visa duties, UK Border Agency staff must receivetraining on the importance of having regardto the need safeguard and promote the welfare of children that they may encounter when working overseas. C ONTRACTORS 2.37. Any services provided by contractors which relate to the discharge of UK Border Agency functions must be carried out having regard to the need to safeguard and promote the welfare of children. Operational instructions for contractors providing such services must refer explicitly to this. Examples of suchservices are detention and escorting functions. Although the duty does not extend to UK Border Agency staff and contractors overseas it is a matter of UK Border Agency policythat when they are escorting children overseas, they should have regard to the need to safeguard and promote the welfare of children at every stage of the journey.2.38. Contractors must be adequately monitored to ensure that they have regard to the duty and the guidance. A NNE x A POSSIBLE INDIC A TORS TH A T A CHILD M A Y H A VE BEEN TRAFFICKED There a number of indicators which suggest thata child may have been trafficked into the UK, and may still be controlled by the traffickers or receiving adults. These are as follows: A T THE PO R T OF ENT R Y The child: • has entered the count r y ille g ally; • has no passpo r t or other means of identification; • has false documentation; The sponsor: • has previously made m ultiple visa applications for other c hildren and/or has acted as the guarantor for other c hildre n ’ s visa applications; and/or • is kn o wn to h a v e acted as the guarantor on the visa applications for other visitors who h a v e not returned to their countries of origin on the expiry of those visas. WHILST RESIDENT IN THE UK The child: • possesses money and g oods not accounted for; • is malnourished; • is unable to confi r m the name and address of the person meeting them on a r r i v al; • does not appear to h a v e money but does h a v e a mobile phone; • rece i v es unexplained/unidentified phone calls whilst in placement / tempora r y accommodation; • has had their jou r ney or visa a r ran g ed b y someone other than themsel v es or their family; • is accompanied b y an adult who insists on remaining with the c hild at all times; • possesses money and g oods not accounted for; • exhibits self assuranc e , maturity and self- confidence not expected to be seen in a c hild of su c h a g e; • is withdr a wn and refuses to talk or appears afraid to talk to a person in authority; • has a pr e pared sto r y v e r y similar to those that other c hildren h a v e g i v en; • has a pr e pared sto r y v e r y similar to those that other c hildren h a v e g i v en; • exhibit s self-assuranc e , maturit y an d s e l f c on f i d e n c e no t expecte d t o b e see n i n a c hil d o f su c h a g e ; • does not appear to h a v e money but does h a v e a mobile phone; and/or • sh o ws signs of p h ysical or sexual abus e , and/or has contracted a sexually transmitted infection or has an un w anted pregnancy; • has a histo r y with missing links and unexplained m o v es; • has g one missing from local authority care; • is unabl e , or reluctant to g i v e details of accommodation or other personal detail s . • is required to ea r n a mini m um amount of money e v e r y d a y; • w orks in v arious locations; • Evidence of d r ug, alcohol or substance misuse; • has limited freedom of m o v ement; • appears to be missing for periods; • Le a ving home/care setting in clothing u n usual for the ind i vidual c hild (inappropriate for a g e , bo r r o wing clothing from older people); • is kn o wn to beg for money; • perfo r ms e x cess i v e house w ork c hores and rarely le a v es the residence; • is malnourished; • is being cared for b y adult/s who are not their parents and the quality of the relationship between the child and their adult carers isnot good; • is one among a n umber of unrelated c hildren found at one address; • has not been registered with or attended a GP practice; • has not been enrolled in s c hool; • has to p a y off an e x orbitant debt, e . g . for tr a v el cost s , before h a ving control o v er o wn ea r nings; • Phone calls or letters from adults outside the usual ran g e of social contacts; • Adults loitering outside the c hild ’ s usual place of residence; • Significantly older b o yfriend; • Accounts of social act i vities with no plausible explanation of the source of necessa r y funding; • P ersistently missing, st a ying out o v e r night or retu r ning late with no plausible explanation; • R etu r ning after h a ving been missing, looking w ell cared for despite h a ving no kn o wn base; • Missing for long period s , with no kn o wn base; • Placement breakd o wn; • P atte r n of street homelessness; • is pe r manently d e pr i v ed of a lar g e pa r t of their ea r nings b y another person; and/or • P ossession of lar g e amounts of money with no plausible explanation; • is e x cess i v ely afraid of being d e po r ted. CHILDREN INTERNAL L Y TRAFFICKED WITHIN THE UK Indicators include: • Acquisition of expens i v e clothe s , mobile phones or other possessions without plausible explanation; • H a ving k eys to premises other than those kn o wn about; • P h ysical symptoms (b r uising indicating either p h ysical or sexual assault); • Pre v alence of a sexually transmitted infection or un w anted pregnancy; • L o w self-ima g e , l o w self-esteem, self-ha r ming beh a viour including cutting, o v erdosing, eating disorde r , promiscuity; • T r uancy/disen g a g ement with education; • Y oung person kn o wn to be sexually act i v e; • R e po r ts from reliable sources su g g esting the li k elihood of i n v ol v ement in sexual exploitation; • R e po r ts that the c hild has been seen in places kn o wn to be used for sexual exploitation; • Entering or le a ving v ehicles dr i v en b y unkn o wn adults; • Going missing and being found in areas where the c hild or y oung person has no kn o wn links; and/or • P ossible inappropriate use of the inte r net and forming on-line relationships, particularly with adults.The indicators above should not be read as a definitive list and practitioners should be aware of any other unusual factors that may suggest a child might have been trafficked. They are intendedas a guide, which should be included in a wider assessment of the young person’s circumstances. The final set of indicators is applicable to both cases of sexual exploitation and internal trafficking.It is also important to note that trafficked children might not show obvious signs of distress or abuse and this makes identifying children who may have been trafficked difficult. Some children are unaware thatthey have been trafficked, while others may actively participate in hiding that they have been trafficked. P r oduced by Office of the Child r en’s Champion ISBN 978-1-84987-093-1