Unaccompanied children

Unaccompanied children seeking asylum are young people under the age of 18 who come to the UK and apply for asylum without a parent or guardian.

The Home Office defines an unaccompanied child seeking asylum as a person who, at the time of making an asylum application:

• Is under 18 or, in the absence of any documentary evidence, appears to be under 18
• Is applying for asylum in his or her own right
• Is separated from both parents and not being cared for by an adult who by law or custom has responsibility to

Who is responsible for unaccompanied children seeking asylum?

Under the Children Act 1989, support for unaccompanied children is the responsibility of local authority children's social services departments, regardless of the child’s immigration status. The Home Office is not responsible for supporting unaccompanied children seeking asylum although it provides funding to local authority children’s social services to help with the cost of the children’s care. (See Finance, below). The responsibility for a particular young person lies with the local authority in which they first present themselves.

The Children Act 1989 places a duty on Local Authority children’s social services to assess the needs of unaccompanied children. Guidance issued by the Department of Health (DoH) in 2000 requires local authorities to conduct a comprehensive assessment of a child’s needs, stating that unaccompanied children seeking asylum ‘require particular care and attention during assessment’.

The Framework for Assessment of Children in Need and their Families describes assessment as a process necessarily involving direct work and highlights good practice. See the Department of Health website for the guidance.

Children’s social services should meet the following assessment deadlines, as defined by the DoH guidance:

• Within one working day, the social services department should have made a decision about what action needs to be taken on a referral
• Within a maximum of seven working days, the department should have made an initial
  assessment. The child should always be seen as part of any initial assessment
• Within a maximum of 35 working days a core assessment of the child’s needs should have taken place. At the conclusion of the core assessment, the findings should be analysed and the nature and level of service required should be determined in accordance with Section 17 or Section 20 of the Children Act 1989
• A care plan or children in need plan should be prepared which will meet the accommodation, financial and other support needs of the child. These plans should be regularly reviewed

In the assessment process, the social workers will determine whether the child’s needs fall under Section 17 or Section 20 of the Children Act 1989. This is very important as it will determine the level of support provided not only up to, but also immediately after the young person turns 18. Local Authority Circular (LAC (2003) 13) issued by the Department of Health in June 2003 provided that most unaccompanied children seeking asylum are likely to be assessed as requiring support under Section 20 of the Children Act 1989. In any case, children should be cared for under Section 20 throughout the assessment process.

Children ‘in need’

The Children Act 1989 places a duty on local authority children's social services departments to assess the needs of unaccompanied children. Section 17 of the Act provides a basic definition of a child in need as one who “is unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority”.

Children supported under Section 17 will not necessarily receive any services other than payment for subsistence and basic accommodation. This may be in bed and breakfast or hostels. This is clearly not acceptable practice for the vast majority of unaccompanied children who will usually not have any other means of support. Some local authorities have sought to justify the use of section 17 to support unaccompanied children by asking the child to choose which section they wish the local authority to use. This practice was declared unlawful in a court judgement in 2007. Our briefing has more detail on this; see it on the Refugee Council's website.

‘Looked after’ children

Section 20 of the Children Act 1989 places a duty on a local authority to ‘look after’ a child if they appear to need it by providing them with services appropriate to their needs, including accommodation.

Unaccompanied children who are looked after should receive the same standard of care as other children who are the responsibility of the local authority.

Services provided under Section 20 may involve placing the child in residential care or with a foster family. Duties also involve consulting with a child about his/her placement, keeping siblings together, and a general duty to safeguard the welfare of a child. The Children Act 1989 regulations give clear instructions on the writing and review of a care plan for a ‘looked after’ child, as well as on the regularity of visits by a named social worker and on access to records. Social workers also have specific duties to ensure that the child gets appropriate education and that s/he is supported to achieve his/her potential. The local authority also has additional duties for young people leaving care after they have turned 18, such as planning with them for their future, providing financial support and keeping in touch.

See Turning 18 in this section.

Please Note: Finance

Local authorities that support unaccompanied asylum-seeking children can claim some of its costs from UKBA.Contact:

Border and Immigration Agency
UKBA Finance Department
10th Floor Block 8 West Wing
Whitgift Centre
Croydon CR0 1AT
020 8760 4527
nassgrant@homeoffice.gsi.gov.uk

Good practice for Social Services

Assessment

• See the child as a child, not as an asylum seeker, and assess under the Children Act 1989 on the basis of need.
• Remember that the child’s needs will not always be apparent straight away. Unaccompanied children and young people may appear to be more mature than they are because of their past experiences. But this doesn’t necessarily make them any less vulnerable
• Give the child a copy of his/her own assessment – both to help the child, and so that other agencies that may offer the child help can see the full picture
• Don’t base services on the child’s immigration status. If s/he is still a child when receiving refugee status, humanitarian protection or discretionary leave, continue to treat him/her as a child
• Are the carers experienced? For example, the carer might be an uncle, aunt or other relative who has never cared for a child before. Make sure that you support both the child and the family in this situation, since there may be difficulties on both sides. The Children Act 1989 allows you to do this
• With regard to age disputes, there is no definitive test to assess a person’s age, and medical tests are acknowledged to have a large margin of error on either side. Remember that if qualified doctors are unable to make an accurate age assessment, you are unlikely to be able to do so either
• Where a 16 or 17 year old can claim benefits, remember that you still have a duty to support them in other ways, if not financially

Flexibility

• Have a flexible range of resources at your disposal, and look at the options carefully. It can be dangerous to consider a foster placement ‘matched’ if the child and family share only a religion. Whilst this is an important aspect of the child’s culture it is not the only factor to consider in finding a suitable placement.
• If needs are not met, try developing your service, but also consider working with other agencies or groups able to provide what you cannot
• Again, if you have lots of clients, employ a support worker for 16 to 17 year olds in the same way as you would employ a family support worker. Support workers can do a great deal of important preparatory work.
• They bring good background knowledge of a particular culture and they also free up social workers to do other duties.

Refugee communities

• Find out if refugee communities understand fostering. How does it fit with their ideas on raising children, and what can they offer? Some communities are better established and therefore better placed to take on foster placements than others
• Children need contact with their own communities, and where refugee communities are unable to offer full-time care, befriending is invaluable. For example, a child may be successfully placed with a British family, but this might not meet all their cultural needs – try to arrange visits to families from the child’s own community
• Build links with refugee community organisations. Your local one stop service can put you in touch with groups in your area

Support

• Like all children, refugee children need company of their own age. Some may not have this if they are staying with older relatives. Try to bring them together with other children. If you can’t manage this,maybe a voluntary organisation can.
• Formal counselling is not always necessary for refugee children. Sometimes they just need someone to talk to. Don’t feel that you have nothing to offer because you’re not a specialist in this area
• At the other extreme, don’t feel that you can perform miracles. You yourself can’t provide everything that the child needs and you shouldn’t feel alone in trying to help them. There are lots of other sectors that can help you, like the local school or college, youth service, voluntary groups, refugee communities. Find out about projects and resources in your area
• Communication may be a problem with some children, but the case may not be that different to your other work. Interpreters clearly must be used for formal assessments and information giving, but where finding them is difficult, don’t use this as a reason not to keep in touch
• Always refer an unaccompanied child to the Refugee Council Panel of Advisers. They may be able to offer assistance or advice if it is required, and they keep a database of referrals which assists with the planning of services and can be useful for other agencies working with unaccompanied children

Good practice

When agencies consult with young people about their needs, making friends and doing ‘normal’ activities always comes up high on the list.

Look for projects in your area that aim to reduce isolation and bring asylum seekers and refugees into contact with peers from a range of communities, including locally raised young people. If none exists, explore the options for establishing one, maybe in partnership with other agencies. It will often reduce problems of mental health and/or anti-social behaviour and could be fun too!

Age disputed cases

Anyone applying for asylum and claiming to be a child has the right to approach Children's Social Services for a support assessment, which may include an assessment of their age. If an immigration or screening officer has disputed an applicant’s claim to be a child they should refer the child to children's social services for an assessment.UKBA may be treating an applicants as ‘age disputed’ until an assessment is made of whether they should be treated as a child or adult, or may have made a quick decision, based purely on appearance.

The local authority still has a duty to make its own decision. The local authority conducting the assessment and the case owner assigned by UKBA will need to keep in contact until this assessment has been undertaken. If the person has been supported by children’s social services and is later assessed to be an adult, the case owner from the Home Office will arrange for a transfer to adult support arrangements.

Several court judgements have clarified what makes an age assessment lawful. They include:

• The responsibility of the local authority to make its own decision on a person’s age rather than adopting that of another official e.g. an immigration officer
• It is the responsibility of the assessor to consider all available evidence to inform a decision, including that of medical practitioners.
• The assessor should share any doubts or concerns with the young person to allow for any explanation or clarification.

It is important to note that there are no medical tests, including x-rays, that can give a definitive measurement of age. Age assessment is an inexact science and benefit of the doubt must be given to the applicant in all cases.

For more information on age assessment practice see ‘When is a Child not a Child’ ILPA 2007.

When an assessment has been conducted lawfully by the local authority the decision should be communicated to the UKBA. It is unnecessary and inappropriate to send the assessment in its entirety; the caseowner needs to be satisfied that a lawful assessment has been conducted and should then adopt the same decision as the local authority regarding the age of the person.

At the time of writing the UKBA was planning to report from its ‘Age Assessment Working Group’ which had been looking at age assessment practice.

Applying for UKBA support before turning 18

Local authority children’s social services departments are responsible for ensuring that an application has been made for post 18 asylum support from UKBA. Even if the local authority has continuing responsibilities under the Children (Leaving Care) Act 2000, a support application should be made in order for the local authority to be reimbursed some of the money by UKBA.

Policy Bulletin 29 provides guidance to case owners advising unaccompanied children seeking asylum supported by social services as they approach their eighteenth birthday.

Turning 18

‘Looked after’ children

Children seeking asylum who were ‘looked after’ for 13 weeks or more (on a care order or accommodated under Section 20 of the Children Act), are entitled to leaving care support from the local authority that looked after them under the Children (Leaving Care) Act. Children's social services will assess the needs of and write a plan with the young person to outline the nature of the ongoing support that will be provided. This plan is called a Pathway Plan. For unaccompanied children whose immigration status is not finally determined all possible eventualities will need to be addressed. This is often referred to as ‘dual’ or ‘triple planning’. Plans and services will need to recognise and adapt to the uncertainty a young person is likely to experience.

Financial support

The Home Office grant to local authorities ends when the child turns 18. In certain circumstances, where a child has not been granted leave and is awaiting a decision on the asylum claim or appeal, Home Office funding may continue. Young people turning 18 with limited leave to remain, humanitarian protection or discretionary leave will be eligible for benefits. This includes those with leave which has expired if the applicant has applied for an extension, as long as this was done before the expiry date of the leave. If there are problems showing evidence that an application was submitted, advice is available from the Children’s Legal Centre.

Schedule 3 and Section 54 of the Nationality, Immigration and Asylum Act 2002 redefined what it means to be ‘unlawfully in the UK’ for the purposes of asylum support. This allows the Government to limit the support that can be provided to certain classes of people who may otherwise be entitled to help from Social Services.

The Home Office issued guidance to local authorities in 2003 indicating that former unaccompanied children could be supported until they failed to comply with removal directions. It is likely that this guidance does not accurately reflect the legislation but no further guidance has been issued to local authorities. In the meantime, some local authorities are continuing to follow the original guidance whilst some are limiting support to that which is necessary to avoid a breach of the person’s ECHR rights.

For further information on Schedule 3 as it applies to unaccompanied children see the information note produced by the Children’s Legal Centre.

Young people who have exhausted all appeal rights on their asylum application by the time they reach their eighteenth birthday are not eligible for UKBA asylum support. They may be solely dependent on Children (Leaving Care) Act support from children's social services.

See Asylum decision, for information on Section 4 support.