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Wai Ping* applied for asylum in Britain and was refused. Despite being pregnant she lost all her rights to housing and benefits, and as she is also banned from working, she was made destitute. Her baby was born in Lewisham hospital, but she was found to be living in such squalid conditions that social services refused to allow her to be discharged from hospital with her child. The newborn baby was placed with a foster carer and only saw the mother for a couple of hours a day with the social worker and foster mother present. Community midwife June Walker says: "It was very upsetting for the mother because she could not speak English. I feel that if she had had more rights and access to an interpreter she could speak up for herself and would possibly have been housed with her baby."

Wai Ping and her baby are casualties of the government's "get tough" asylum policy. New rules are being piloted in the North West and London which mean that if the Home Office believes failed asylum seekers are not preparing to leave the country, all financial support and accommodation provided by the National Asylum Support Service is withdrawn and they will not be able to access welfare benefits.

The measure, which previously affected only single adults, has now been extended to families with children under section 9 of the Asylum and Immigration Act 2004. Campaigners say the draconian policy threatens families with destitution and they want the rules changed.

A spokeswoman for the Association of Directors of Social Services says the Home Office decided to pilot the proposal in local authorities in the North West and several London boroughs before rolling it out nationally because they realise it is "such contentious legislation".

She says that social services are obliged "to make an assessment of these children's needs to make sure they are being met" and that taking children into care "could be something that does happen" but only as a last resort.

However, midwives in south London claim that there have been instances where young women as young as 16 have had their babies put into foster care because they are not allowed to claim housing and other welfare benefits (see case study "Nowhere to go").

While the no recourse to public funds rule applies to asylum seekers who have been - to use the jargon - "disbenefited", it also affects people coming to the UK to study or join a British partner or be sponsored.

Women's Aid has been campaigning on behalf of women whose partners are abusive, and who can be left facing the agonising choice of staying in a violent relationship or leaving to face destitution and the possible loss of their children. The number of women supported by Women's Aid refuges who had no recourse to public funds rose sharply from 301 in 2002-3 to 368 last year.

A coalition of women's organisations, including Women's Aid and the Southall Black Sisters, tried unsuccessfully recently to get an exemption from the no recourse to public funds rule for victims of domestic violence included in the Domestic Violence, Crime and Victims Bill. The government has contributed £80,000 towards Women's Aid's Last Resort Fund, but women's refuges can only apply to the fund for eight weeks of financial support towards a woman's living costs or rent.

If women are rendered destitute through domestic violence they are likely to lose care of their children. Hilary Saunders, Children's Policy Officer at Women's Aid, warns that "under current immigration rules, if a woman flees from a violent partner when she does not have secure immigration status, the family courts are likely to grant residence of the child to the perpetrator, because he is the only parent with secure accommodation".

While the campaign on their behalf has been going on for some time, concern over the plight of newborn babies being removed from their mothers prompted representatives from several organisations including the Maternity Alliance, Sure Start Plus and Connexions to meet at the Government Office for London in March to open up a new front in the battle for changes to the no recourse to public funds rule. They are gathering examples and preparing a report making a case for a change in the law and to bolster their argument that these measures are in breach of human rights conventions. Jenny McLeish, social policy officer at the Maternity Alliance, says: "It isn't an issue of looking for good practice and spreading it. It's actually a question of changing the law because it is impossible to work with what exists at the moment."

However, Frances Potter, of Sheffield Citizen's Advice Bureau, who regularly advises people without recourse to public funds, says there are powers under section 17 of the Children Act 1989 to provide support and accommodation as an alternative to taking children into care. She says social workers often fail to explore these powers, believing wrongly that they would be infringing the no recourse to public funds rule.

Frances Potter aims to help asylum seekers by linking them with support from voluntary agencies and getting specialist legal advice about their immigration status. Charities such as the Sheffield-based Assist (Asylum Seekers Support Initiative - Short Term) are working to provide some support to destitute asylum seekers.
Ella Jess-Reid, of Lewisham Sure Start Plus, says that while social services are obliged to help the baby, the mother, who may effectively be a child herself, is denied assistance.

"We are quite clear that these young people are children in need," she says. While pressure is put on social services to help, Sure Start Plus often ends up approaching the voluntary sector for assistance or buying the new mother baby clothing.

Jenny McLeish says the immigration service regards these young mothers not as children who have just given birth, but coldly as people without recourse to public funds. She says: "Their immigration status supersedes their needs as a child. But we must face the reality that that baby is going to be harmed by that teenager's destitution and you are then going to spend lots of public money picking up the pieces so it doesn't make any economic sense to deny these people services and access to benefits."

* Not her real name

Where's the law?

In line with the principle that the child's best interests takes precedence, it would be normal practice for a local authority to arrange to accommodate and support a family with no other means under section 17 of the 1989 Children Act. Section 9 of the 2004 Asylum and Immigration Act prevents local authorities from using this power to support "ineligible persons" - ie failed asylum seekers - but there is an exception. They may provide support if it is necessary to stop someone's human rights being breached. The Children's Legal Centre says this means local authorities should assess whether the family can obtain accommodation and support from other sources. If not the local authority can, but doesn't have to, use section 17 to avoid splitting the family.

Nowhere to go:

 A  17-year-old girl from Jamaica who had just given birth was referred to Shirley Campbell, lead specialist midwife for young women in Lewisham. The girl had told the hospital that she had nowhere to go, her partner promised but then withdrew an offer to help, and her wider family refused to assist her. She had also failed to produce her passport or evidence of her immigration status. When she did find somewhere to live, social services inspected the accommodation and decided it was unsuitable for a baby because it was very cold and not properly furnished. The baby was then removed into foster care. Shirley says: "It was a last resort and I was obviously quite upset by that. It was a real jolt for me when this girl had her young baby taken away. I believe the system should be changed."

Mother Starving

A woman left her violent husband but he stopped her taking their child.  Due to her immigration status the woman has no recourse to public funds, but with the help of a domestic violence outreach service she managed to obtain accommodation.  The court granted residence to the father, and unsupervised contact to the mother.  The mother says that this was because she was labelled "unsettled" - the man's violent behaviour was not mentioned in court.

The child wants to stay with her mother and is very distressed.  The mother now has no means to support herself financially.  Her husband has stopped her contact with the child, she has been refused legal aid and she is at risk of starving.

From Women's Aid Source: Failure to Protect? Violence and the Experience of Abused Women and Children in the Family Courts.