Immigration law, as everyone working in it knows, is not a devolved area and not likely to become so. It’s therefore easy for immigration practitioners to assume that all the important stuff is the same across the UK. That’s not the case for social care rights, which can help vulnerable migrant and non-British children in particular, but are different here in Wales compared with England.
Familiarity with these rights gives lawyers a better chance of appropriately referring those clients for specialist help. Sadly, we may be the only person a client comes into contact with who is able to do so.
Council accommodation for children and families
Social care in Wales is covered by the Social Services and Well-Being Act (Wales) 2014. This sweeping piece of legislation not only brought together adult and child social care into a single act, but introduced a specific duty for local authorities to have regard to the UN Convention on the Rights of the Child (UNCRC) in the exercise of their powers. This is in addition to the Welsh ministers’ duty to have regard to the UNCRC brought in by the Rights of Children and Young Persons (Wales) Measure 2011.
When it comes to vulnerable children, the most important thing to remember is that Parts II and III of the Children Act 1989 do not apply in Wales. You cannot request that a child be accommodated under section 17 or section 20 of the 1989 Act – because they don’t apply.
Instead, accommodation is covered in Part 6 of the 2014 Act. Most separated children will be accommodated under section 76:
76 Accommodation for children without parents or who are lost or abandoned etc
(1) A local authority must provide accommodation for any child within its area who appears to the authority to require accommodation as a result of—
(a) there being no person who has parental responsibility for the child,
(b) the child being lost or having been abandoned, or
(c) the person who has been caring for the child being prevented (whether or not permanently, and for whatever reason) from providing the child with suitable accommodation or care.
Where a family needs accommodation, as might be provided in England under section 17 of the 1989 Act where they have no recourse to public funds, this would be provided under section 37 (general duty to meet needs for care and support).
Young people leaving care
The provisions of the 2014 Act on leaving care support start at section 104. This divides young people entitled to support into categories 1 to 6 – no “relevant children” or “former relevant children” here. Though sections 1 to 4 carry greater entitlements, it should not be assumed that there is no entitlement if someone has a higher category number; the detail of the section needs to be checked. There are also provisions linking continued support to education which English practitioners would find familiar.
To give an example of how the categories might work: I recently referred a client to a community care law specialist as there was a dispute about whether the local authority still has a duty to accommodate a young person who had previously been accommodated but then spent some time in prison. We had to identify which category he had been when originally accommodated as a 17-year-old separated child (category 2), then track through the categories to see where he was now – moving to category 3 when he turned 18, but by now in category 4. That led us to section 112 where the support duties for category 4 young people can be found. It looks complex, but if you can work a ‘choose your own adventure’ book (or the Immigration Rules!) you can work the Social Services and Well-Being Act.
This obviously falls outside the normal duties of an immigration practitioner, but in these times of remote working it is all the more important that where safe, stable accommodation is potentially available, clients are signposted to appropriate advice and representation, rather than taking instructions while your client walks the streets. It is also a sad fact that, like many places in the UK, Wales has a dearth of community care practitioners and therefore accessing representation is very difficult without knowing exactly who to call – the Public Law Project has recently started working in Wales so might be able to help, while Julie Burton is a specialist in North Wales.
The children’s rights provisions
Finally, the 2014 Act places additional duties on local authorities to have regard to the UNCRC in exercising their functions, as well as the “well-being duty”. But there is to date no case law explaining what this might mean in practice. Practitioners may need to become a bit more intimately acquainted with the language of the Convention to develop strategic challenges to develop this area of law.
For instance, what does it mean for a child to have “appropriate direction and guidance” in the context of an age assessment (Article 5) – an appropriate adult, a lawyer, an advocate? What does it mean for children with outstanding immigration applications? What does the child’s right to be heard (Article 12) mean in the immigration context – should young people have more (any) input on guidance and processes for age assessments and does this impact on the lawfulness of any guidance produced?
The Welsh government has for some time prided itself on having a “Children’s Rights Approach” but what this means in practice remains to be seen. There remain real opportunities for practitioners to centre children’s rights in areas – such as age assessment – where to date such considerations have been sadly lacking.