Borders, Citizenship and Immigration Bill [HL]

In moving this amendment in the unavoidable absence of the noble Lord, Lord Ramsbotham, I should like first to repeat a concern that he expressed previously about the number of children who go missing when they are in the care of UKBA and local authorities. In replying to that amendment, the Minister said merely that the police are informed. Now that we have the code of conduct issued in January under the UK Borders Act 2007 and the obligations in Clause 51 coming down the track, the very least that we can expect is that statistics be published on the missing children at regular intervals. In addition, we would really like to have the expertise of the DCSF safeguarding team deployed on this problem and on the other new responsibilities of the UKBA. As we have always said, the detention of a child is rarely justifiable, and then only for the shortest possible time. There may be exceptional cases where it is necessary—for example, to establish their identity or to prevent trafficking—but we believe not only that every case should be sanctioned by the Secretary of State but also that regular reports should be made so that Parliament can monitor the way in which the power is being exercised. The chief inspector said: ""Any period of detention can be detrimental to children and their families, but the impact of lengthy detention is particularly extreme"." The UN Committee on the Rights of the Child states that, to comply with the convention, the UK Government should, ""intensify its efforts to ensure that detention of asylum-seeking and migrant children is always used as a measure of last resort and for the shortest appropriate period of time"." The duty in Clause 51 to make arrangements to safeguard and promote the welfare of children obliges the Government to seek further means of reducing the incidence and duration of children’s detention. The guidance issued by the UKBA recognises that, ""detention must be used sparingly and for the shortest period necessary"." It is difficult to reconcile that objective with the information provided by the chief inspector in her latest report. We cannot rely solely on the sparse information in the Government’s quarterly asylum statistics. The immediate necessity is for Parliament and the public to know what the numbers are, where they are being held and why. When debating the UK Borders Bill in 2007, we suggested that Ministers be obliged to place anonymised copies of their decisions to approve continued detention beyond the 28-day period in the Libraries of both Houses, with a note on the reasons for their decisions in each case, so that Parliament would be able to evaluate the process and be assured not only that the declared purpose of children’s detention was being strictly observed but that, wherever possible, alternative arrangements were being considered and made. The chief inspector found that, of 450 children held at Yarl’s Wood between May and October 2007, no fewer than 83 were held for more than 28 days, but the Minister is under no obligation to give reasons for the decisions or to explain why the number had shot up from 27 in a comparable period in 2005, in spite of a reduction in the total number of children passing through the centre. The Refugee Children’s Consortium expresses particular concern about the failure of the UKBA to maintain statistics on the number of age-disputed claimed minors held in detention, or the number of those disputed cases that are found to be children in the end. There are many such cases in spite of UK policy not to detain unaccompanied children other than in the most exceptional circumstances. Of the 165 age-disputed cases dealt with at Oakington by the Refugee Council in 2005, 89, or 54 per cent, turned out to be children. In 2008, it worked with 55 age-disputed young people in detention, of whom 12 have been found to be children, with 10 cases still unresolved. The UN Committee on the Rights of the Child specifically recommended that disaggregated statistics should be published to show the number of age-disputed cases and their outcomes. However, in the latest statistics, published last month, no assistance is given on age disputes in detention. The figures are rounded, so it is impossible to know the precise number of children in detention at any one time. They are still, as ever, snapshots, so that the number of children passing through detention in any particular period cannot be assessed. That also means that children who have spent long periods in detention but who happened not to be there at the time of the snapshot can be missed. The one table that is not a snapshot relates to children removed from the UK from detention, but ignores those released from detention rather than removed. Moreover, it gives only numbers in, and not length of, detention. There is nothing on the aggregate cumulative time that is spent in detention by all children, which may involve in each case more than one period. The UKBA treats claimed children as adults if its officials form the opinion, on appearance alone, that they are significantly over the age of 18, in which case they may be held in detention until a full age assessment has been conducted, which may take several weeks. The problem was well illustrated by the case reported in today’s Guardian of the Afghan boy Majid, whose age was assessed as over 18 by a social worker but as 15 by a highly experienced paediatrician. To be Merton compliant, the local authority is required to consider qualitative factors, such as family circumstances and history, educational background and the applicant’s statements about his activities in the previous few years, but the paediatrician uses a different approach, employing medical and psychological criteria. The difficulty with both those techniques is that there are no population statistics for rural Afghan populations, for example, so as to guide the experts on the spread of ages at which particular events are expected to occur. In the case of Majid, the paediatrician has been trying to put the 500 cases that she has dealt with so far into some kind of scientific framework. However, up to this point there is no universally accepted algorithm for determining age, leaving plenty of scope for disputes between the professions. The problem of age determination, which has a strong bearing on the number of children in detention, because you cannot detain minors, has been around ever since I can remember. In the paper Planning Better Outcomes, there was a proposal to resuscitate the use of dental X-rays for age determination, a practice that was abolished on 2 February 1982 by the then Home Secretary Mr Willie Whitelaw, afterwards Viscount Whitelaw in your Lordships’ House. That followed the publication by my office, in June 1981, of a report on the use of X-rays for age determination in immigration control by my then research assistant Ted White, who was at Yale University at the time and is now head of a law firm in Denver, Colorado. The conclusion that we reached was that the use of radiological examinations for non-clinical purposes was unethical and inaccurate and should be stopped. That was endorsed by an ad hoc medico-legal committee consisting of representatives of the BMA, the Joint Council for the Welfare of Immigrants, the UK Immigration Advisory Service, the TUC, law centres, regional health authorities and individual lawyers and doctors. Similarly, the proposal to revive the practice a quarter of a century after the decision of Mr Whitelaw to end it attracted vehement opposition from the Children’s Commissioner, the BMA, the BDA, the Royal College of Paediatricians and Child Health, the Children’s Society and so on. Their opinion was reinforced with a legal opinion from Mr Nicholas Blake QC that X-raying children for non-therapeutic purposes was unlawful, partly because the child subjected to the procedure would not be capable of giving informed consent. When in January 2008 the Government published the outcome of consultations on unaccompanied asylum-seeking children, they had to admit, in a masterly understatement, that there was, ""a lack of consensus among stakeholders about the merits of x-rays as a means of accurately assessing age"." However, the response continued: ""There is a need to consider this further. We will, therefore, set up a working group with key stakeholders, including medical practitioners, to carry out a thorough review of all age assessment procedures with a view to establishing best practice"." As far as I can see, there has been no further word from the Government about this working group, but the four UK Children’s Commissioners presented a unanimous report to the UN Committee on the Rights of the Child last June saying, among other things: ""We strongly object to Government proposals to introduce dental x-ray procedures to establish the age of asylum applicants on the grounds that they are unethical, unlawful and cannot predict chronological age any better than non-invasive methods"." The inaccuracy of the procedure is not the main reason for objecting to it but, as an aside, all the studies that produce U-curves purporting to relate chronological age to tooth eruption have been on European populations; no attempts have been made to carry out surveys of the child population in asylum-producing countries such as Iran, Afghanistan or Somalia. What has happened to the working party, which last met in July 2008? The code of practice contains not a single word about age determination. Will the Minister say for the record that X-rays have been definitively abandoned for this purpose? The Government should also amend the guidance so that officials are advised not to make initial decisions based on physical appearance but to give applicants the benefit of the doubt on their claim to be under 18 until a thorough professional assessment has been conducted. The lack of statistics relating to children has occasioned the debate. I hope that the Minister will now remedy the position by giving some undertakings. I beg to move.