By Richard Ross
Refugees and migration are big issues again and, though many of those entering Europe via the Mediterranean have sought to reach their preferred destinations of Sweden and Germany, these wider movements have had some impact on the numbers of unaccompanied minors claiming asylum in the UK.
After a dip in numbers from 2010 there has been a gradual rise in the past two years. In the year to 30 September 2015 there was a near 50% rise in the number of asylum applications from unaccompanied children, to 2,564. This pattern continues and is beginning to have an impact across the country and not just in authorities which are home to major ports and routes of arrival, such as Kent.
Age assessment guidance
In recent months there have been important developments in the management of age assessments of unaccompanied minors by public bodies in this country. These mainly concern England but have UK-wide relevance since immigration and asylum are still UK government ‘reserved’ issues.
In June 2015 the protocol between the Home Office and local authorities was updated when new joint working guidance was published. This replaced the protocol from 2005, which had become significantly out of date. In a departure, separate guidance for social work practitioners was published in the autumn. These are both the outcome of two years’ work. Critically, while the Association of Directors of Children’s Services has led on the social work guidance, it has been a multi-agency achievement with the participation of central government, local authorities, NGOs, health and police.
UK’s unique approach
The UK is unique in the way it conducts these assessments compared with its European neighbours. Elsewhere, with a few exceptions where there is a minor role for a social history (for example, in Sweden), determination of age depends wholly on X-rays and physical examination of teeth and/or genital maturity. The Home Office has not always been happy with the UK approach and, at times, has sought to shift the balance in favour of a more medicalised process, mainly through the promotion of dental X-rays. As long ago as 1997 the Royal College of Paediatrics and Child Health rejected this and said X-rays did not have therapeutic benefit. This position has recently been endorsed by the British Dental Association, although in 2011/12 the Home Office sought to pilot orthodontic examination as a component of assessment in a trial group of cases.
Social workers have never been too happy that they are the main actors in the age assessment activity, which has evolved over the past 20 years. Figures have never been clear but a reasonable estimate is that 25% of those claiming asylum as children undergo age assessment. So last year/this year this may have involved around 400-500 cases per year.
I came into the world of social work with separated children about 13 years ago. It has always been my view that assessing age is a core activity where liberty of one kind or another is at stake
As such, it ranks alongside decision-making processes in child protection, mental health assessments, and admitting older people to care. This is serious stuff then for the profession; the most serious, in fact.
Social workers have only fitfully been supported in this enormous task of conducting an assessment, engaging with a person who likely has little clue of its import and marshalling available evidence of sometimes slender means and critically drawing a conclusion that will:
- decide if the person is a child or an adult
- if a child, ascribe a date of birth which is required under the terms of the rules set by the Supreme Court, in relation to disputed age and being a matter for a court to ultimately decide as a matter of fact (see Re A and M, 2009); and
- have implications for where they are placed, and attend school or college
That it is still two social workers who must undertake the assessment is now established and immutable, but may not make the task easier in all cases.
The new ADCS-led guidance links to the first attempt at overall guidance, in Scotland in 2012, and to a whole range of other issues which are addressed in the appendices.
Tips for social work practice
These are my hints and tips for some key points that I think practitioners should take on board from the guidance:
- Do you need to do an age assessment?
Chapter 1: Be clear about why it is required and give this careful consideration. You and your colleague will be making the assessment. Be clear about the issues and be practical: if, for example, the likely dispute will only be measured in terms of a few months, is it justifiable? This is also a good first step in taking command of the process that follows.
- Consider overall needs first
Chapter 2: this will importantly include safeguarding (if the person disappears you cannot do the age assessment) and especially trafficking. Information gained from this will invariably have a bearing on any age assessment conducted.
- Preparation/planning is crucial
Chapter 3/appendix F: Take your time to consider what information is required, including home country information, and make the practical arrangements. There will be two of you, so divide up the tasks. Hoover up all the available information including observations of others involved, albeit briefly. Try not to take any short cuts as they will come back to bite you – maybe in court, where on more than one occasion a council’s assessment has been quashed if regarded as ‘partial’, or something regarded as key has been overlooked.
- Engagement: this is not going to be easy
Chapter 4: Ensure the young person knows what is happening and why this is a crucial part of the process. It will be different if the young person is newly arrived and not someone who has been supported for some time. Involve the appropriate adult and any interpreter at an early stage. Allow for an extra interview if this could make a difference to the outcome.
- Set out clear reasons for your conclusion
Chapter 5: this is a quasi-judicial process where the courts have been the main drivers of change. Most social workers will be aware of the Merton judgment. Although that was a long time ago it still holds, but there are a battery of other influential cases which may also have a bearing on your particular case. The current legal framework has now been set as a result of the Supreme Court deciding that age was an issue of ‘fact’ and for the courts to adjudicate where there is dispute. As with any assessment you should analyse the information you have accumulated and make sense of it in coming to a conclusion. In any ‘welfare matter’ you are in the land of the balance of probabilities, which allows room for contradiction while not undermining any conclusions you make which are based on carefully stated and balanced reasons.
Here I would make a plea – do not fall back on the ‘benefit of the doubt’
If I depart anywhere from this guidance it is in its continued reliance on the use of this tenet. Personally and professionally I believe it is risk laden and judicial comments support this (see, for example, AM vs Solihull, 2012). Also, in blunt terms it’s a cop out. There will rarely be a case when it is not possible to come to a well-reasoned conclusion without having to fall back on this.
- Allow for challenge
Chapters 5 & 6: a duty of care necessitates that time and effort is put into filling gaps and checking inconsistencies and giving the young person every opportunity to clarify or contest aspects of the conclusion, even if it remains substantially unaltered.
- Ensure a proper handover of a young person into the adult system
Chapters 6 & 7: there are immediate pressures to show someone the door if they are deemed 18 or over; for example, if someone is placed in foster care with other children. Social workers should resist this and ensure a proper handover of responsibility, even if some interim arrangement is required. Again, some planning should be put into what will almost always be a difficult process.
- Use the Information Sharing Proforma
Chapter 7/appendix A: this was devised to overcome the concern of providing information which may be used for other purposes than those intended. It should provide the outcome and evidence for the decision without undesirable detail and should satisfy Home Office requirements in most cases. Pay attention to ensuring consistency between this and the ‘substantive’ report, which is not generally sent to the Home Office.
Social workers should derive confidence and support for their practice from this guidance. It is not without critics, notably the British Association of Social Workers, which has lamented the failure of the guidance to adopt a genuinely ‘holistic’ approach and says it continues to rely on social workers alone. There is something in this but it’s a bit like criticising an apple for not being a bunch of grapes. This is, after all, guidance specifically for social workers who find themselves carrying out this critical task.
The debate will undoubtedly continue. Meanwhile, I hope that this substantial achievement, which has already had some 9,000 hits on the ADCS website, will also allow social workers and others to turn to other issues we need to address about how the UK deals with separated children as the numbers edge up once more. The Home Secretary recently tabled more amendments to the Immigration Bill around transfer of cases between local authorities, as well as making further attempts to prevent councils supporting care leavers whose appeal cases are lost in the courts. Both will have a big impact on those young people who will rely on support from UK local authorities in the years to come.
Richard Ross is a member of the ADCS Age Assessment Strategic Oversight Group, and led for the local authority side on the joint working guidance. He set up and managed a local authority children’s asylum social work team from 2004-2013.