HUM0082

Written evidence submitted by ECPAT UK

1. ECPAT UK is a leading UK-based children’s rights organisation campaigning and advocating for the rights of children to be protected from threats of trafficking, exploitation and transnational child sexual abuse. We have a long history of campaigning against child trafficking and exploitation in the UK, having produced the first research into trafficking of children in the UK in 2001. An integrated programme of practice, research, training, youth participation and advocacy informs our campaigning efforts. ECPAT UK has been instrumental in raising awareness of the plight of children trafficked into and within the UK for all forms of exploitation and advocating for changes in policy and legislation to improve the UK’s response to this abuse. Our direct work with young victims of trafficking, provides insight into their experiences and the processes and systems that they encounter. ECPAT UK is part of the ECPAT International network of 122 ECPAT members in 104 countries working to end child exploitation. 

Summary

1.     Child who are victims of human trafficking continue to face significant barriers in the identification, recovery and positive outcomes which cover the questions of the committee. Our main concerns in the present context include:

1. A disconnect between the NRM victim identification process and local safeguarding processes and a lack of any structure for assessing the specific needs and risks of child victims associated with their past trafficking so that support can be directed to those needs (in addition to and separate from any other social care needs).
2. Recurring examples of agencies working in silo and the absence of resources allocated specifically to address the challenges of recovery for child victims.
3. Gaps in knowledge among professionals, including social services, about the NRM and what it means for children, contributing to the absence and inadequate provision of support directed at trafficking-related needs and child protection concerns (such as re-trafficking) which other children in care do not have.
4. The absence of centralised funding to meet the trafficking related needs of child victims as contrasted with adult victims (under the MSVCC).
5. New provisions introduced by the Nationality and Borders act which will increase the barriers in identification and support. 
6. A limited Independent Child Trafficking Guardianship service that remains only available in 2/3 local authorities in England and Wales.
7. The continued criminalisation of children for offences committed as a result of their exploitation.
8. The continued practice of accommodating unaccompanied children in hotels outside of the care of children’s services.
9. The accommodation of child victims aged 16 and 17 in accommodation without care.
10. The increasingly hostile and unevidenced rhetoric from government ministers, conflation between modern slavery and immigration processes with discriminatory approaches towards child victims according to their immigration status.
11. The lack of adequate application of the presumption of age for potentially trafficked children.

To what extent do support services meet the needs of victims who have been trafficked in or to the UK?

Children and the National Referral Mechanism

2.     The UK government signed the Council of Europe Convention on Action against the Trafficking in Human Beings (“ECAT”) on 23 March 2007. It was ratified by the UK on 17 December 2008 and came into force on 1 April 2009.

3.     This prompted the creation of the National Referral Mechanism (“NRM”), a victim identification and support process which is intended to meet the UK’s international obligations under ECAT. From the outset of the creation of the NRM, the Home Office has held the brief to design and make arrangements for the implementation of the NRM. The Home Office did seek input from NGOs and other state agencies, but the Home Office has always held primary responsibility for the scope, content, and operation of the NRM.  The Modern Slavery Unit is the internal branch of the Home Office with primary oversight.

4.     The NRM was introduced in 2009 by way of non-statutory guidance, issued by the Home Office. The Modern Slavery Act 2015, introduced by Parliament, imposed a duty on the Home Secretary under section 49 to issue statutory guidance on the arrangements for the identification, protection, and support of victims of trafficking. The intention was that, through the statutory guidance, the NRM would be put on a statutory footing. There was, however, a significant delay to the introduction of statutory guidance.

5.     The Modern Slavery Act Statutory Guidance (“the Statutory Guidance”) was finally issued in March 2020, nearly five years after section 49 came into force.[1]

6.     The expectation, established by the Statutory Guidance, is that a Reasonable Grounds decision will be made within 5 working days of a referral. A positive decision will be made where the Competent Authority “suspects but cannot prove” that the person is a victim. If so, a “recovery and reflection” period is triggered.

7.     Within that period, the individual is entitled to a range of assistance meeting (at least) the minimum requirements set out in Article 12(1) ECAT and may not be removed from the UK. This is subject to change given the of introduction of the provisions in the Illegal Migration Bill which will withhold modern slavery protections under the National Referral Mechanism (NRM) from those identified as potential victims or their family members who meet the four conditions set out in Clause 2.[2]

8.     The Home Office has made an agreement with the Salvation Army to deliver this support for victims through a network of providers in England and Wales, but only for adults. This is the Modern Slavery Victim Care Contract (“MSVCC”). At section 8, the Statutory Guidance outlines the minimum support that adult victims are entitled to receive, subject to specific needs assessments to determine the support they require.

9.     The Statutory Guidance states briefly that support for child victims is to be provided through local authorities, but in contrast to section 8 of the Statutory Guidance which, as above, sets out detailed and specific arrangements for adults, there is no policy or guidance that sets out minimum requirements for child victims of trafficking, agreed with local authorities or the Department of Education.

10. It is not apparent from the Children Act 1989 provisions and associated regulations and guidance what specific support child victims should receive. There is a general duty to safeguard and promote the welfare of children in need in their area and to provide services to them under section 17 of the Children Act 1989, but this is subject to assessment and does not result in specific support for child victims. There are specific duties to support and care for children who are in the care of the local authority, but this does not necessarily result in any specialist support for child victims. 

11. Children experience particular difficulties and the professionals who work with them do not usually have the knowledge or skills to adequately support them through the NRM process, including by obtaining specialist psychological support and relevant expert evidence. A report from the Department for Education and the Home Office, based on evidence from local authorities and NGOs, mirrors this experience – describing gaps in the provision of specialist or tailored services to non-EEA migrant children who are potential victims of trafficking[3].

12. Children identified as potential victims of trafficking through the NRM still do not benefit from a reflection and recovery period. For example, a 17-year-old potential victim of trafficking with a positive reasonable grounds decision, arrived in the UK and has been looked after by the local authority ever since. He waited for over a year for a conclusive grounds decision and did not meet the threshold to access Child and Adolescent Mental Health Services (“CAMHS”). When considering the support that he is entitled to, it is clear that children are not provided with any specific entitlements to targeted trafficking support once they are referred into the NRM and receive a positive reasonable grounds decision.

13. Child victims who are in the care of the local authority, the Care for Unaccompanied Children and Child Victims of Modern Slavery statutory guidance does not illuminate any further and does not address specifically the additional recovery needs that child victims of trafficking have.[4] The danger, therefore, is that any consideration of recovery needs is subsumed in a general consideration of the child’s needs nor does it account for child victims who are not looked after and have protective families.

14. ECPAT UK remains concerned about the arrangements that are in place for child victims of trafficking during their childhood and in their transition to adulthood. We have, over many years, consistently expressed concerns to the Government about the gaps and inadequacy of support for child victims of trafficking. More recently, we have set out our concerns about children achieving positive outcomes following the findings of our research report Creating Stable Futures which found structural, systemic, and discriminatory barriers, such as their experiences of the immigration and asylum systems, the criminal justice system and support in care.[5] The research also highlighted the lack of mechanism for child participation in the development of policies and laws which impact them.

15. Whereas there is a fairly embedded child protection statutory framework, and there is now a developed statutory framework for supporting adult victims, there is no comparable statutory framework or policy which sets out how different public authorities are to provide support and supervision over the welfare and safety of child victims. We have publicly called for substantial reforms to the arrangements under the NRM as it applies to child victims because of these concerns.

16. Following our report with the Independent Anti-Slavery Commissioner in August 2020, A review of what works in multi-agency decision making and the implications for child victims of trafficking[6] and a report we published in October 2020, ‘Child trafficking in the UK 2020: A snapshot’[7] the Home Office announced a pilot on devolved child NRM decisions.[8] This has been a welcome initiative with positive but as yet unreported findings about decision making, processes and outcome. Despite this, concern remains that pilot sites exclude children within 100 days of their 18th birthday, age disputed children and is only available in limited pilot sites. 

17. The overall lack of a joined-up approach across the NRM, child welfare and protection and criminal justice systems without any particular focus on identifying and addressing trafficking related needs, or assessing risks posed to the child is of particular concern to us given the high prevalence of re-trafficking of children. A research report we published in April 2022 in conjunction with Missing People – When Harm Remains[9] - found that one in three child victims went missing from local authority care in 2020. This is a rise of 25% from when we last conducted the research in 2018.

18. An experience of trafficking has a life-long impact for both children and adults. In light of their specific vulnerabilities and heightened support needs, children are particularly likely to continue to feel and struggle with the lasting effects of the experience. Any delay in support can make it even more challenging to recover from those experiences.

New Provisions in the Nationality and Borders Act

19. New provisions which have now come into force as part of the Nationality and Borders Act 2022 will have a significant impact in the support child victims of trafficking receive as they prevent them from accessing the NRM at the reasonable grounds stage in the absence of ‘objective factors’, mean they face disqualification from protection and render them unable to access a secure immigration status as a victim.  

20. The changes recently implemented in the Modern Slavery Statutory Guidance related to the evidential threshold at the reasonable grounds stage will mean that most children’s referrals are dismissed. In most cases at this early stage, children are too traumatised or unwilling to provide details of their exploitation, and there are rarely any objective factors beyond trafficking indicators which rely on first responder training to observe and report on. Children at this stage rarely if ever receive access to legal advice to provide a witness statement nor to access expert reports. Rejections at this early stage of identification will lead to significant safeguarding failings and child protection risks. Consideration of the exploitation of a child within safeguarding arrangements should be informed by the reasonable grounds decision, consideration of the risks of re-trafficking and any criminalisation for offences committed as a result of their exploitation. These changes will have an impact on all victims, including British national children as well as children seeking asylum or with irregular immigration status.

21. The statutory guidance now also includes the process for public order disqualification as defined in Section 63 of the Nationality and Borders Act 2022.  We remain very concerned about the impact this clause will have on both British and foreign national children, particularly children who are victims of child criminal exploitation (CCE) given that it is the most commonly reported form of child trafficking in the NRM.[10] No child victim should be disqualified from accessing protection and children who are victims of exploitation and abuse should be protected. Denying children from being recognised as victims of modern slavery and trafficking will also reduce investigations and prosecutions of those who have exploited children.

22. The new guidance and regulations regarding Temporary Permission to stay for victims of human trafficking and slavery have also been introduced.[11] The requirements set for a grant of immigration leave under this scheme set out that it is required to assist in their recovery from any physical or psychological harm arising from the relevant exploitation or enable the person to seek compensation in respect of the relevant exploitation or enable the person to cooperate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation. Despite commitments from the government that their intention was to fulfil the UK’s obligations under ECAT,[12] this legislation and subsequent guidance ignores the specific standard for children. ECAT specifies at Article 14 (2) clearly that ‘the residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.’ The explanatory report to ECAT goes on to state at paragraph 186: ‘In the case of children, the child’s best interests take precedence over the above two requirements. The words “when legally necessary” have been introduced in order to take into account the fact that certain States do not require for children a residence permit.’ Given the ‘temporary’ nature of this form of leave and the additional burdens placed on children to access it, it cannot be said to be made solely on the best interest of a child.

Independent Child Trafficking Guardians

23. There is clear evidence of the positive benefits that Independent Child Trafficking Guardians (“ICTG”) provide to child victims. An independent evaluation of an initial trial of the service has shown that it has had a positive impact on children.[13] In particular, it has been shown that ICTGs ensure “clarity, coherence and continuity, working across other services responsible for the child, over time and across contexts.” The evaluation also found that ICTGs kept children “safely visible” and helped children feel stable enough to plan for their future and reduce their likelihood of further exploitation.[14] The Government has been slow to roll out ICTGs and they are still not available across all of the local authorities in England and Wales. [15] Currently only two-thirds of local authorities have ICTGs and therefore a large number of child victims in England and Wales continue not to have access to one.

24. The service also has limitations unlike the Scottish and Northern Irish models of guardianship which provide for all unaccompanied and separated children. The changes in model from that provided for in the Modern Slavery Act 2015 also limits the direct support for children who are potential victims of trafficking who have someone with parental responsibility (“PA”) for them, including those who are looked after by the local authority under section 31 where they hold PA.[16] The removal of this limitation by discretion is currently being trialled in some pilot cites. There have also been concerns about the limitation of the ICTG to act as litigation friends for children, despite Section 48 of the Modern Slavery Act stating at (5) The advocate may (where appropriate) assist the child to obtain legal or other advice, assistance, and representation, including (where necessary) by appointing and instructing legal representatives to act on the child’s behalf. It also states at (4) A person appointed as an independent child trafficking advocate for a child must promote the child’s well-being and act in the child’s best interests.

25. The scheme is also currently limited as a children transition into adulthood. It should be provided beyond the age of 18 as young people in their late teenage years are particularly vulnerable[17] and unaccompanied children face specific vulnerabilities at this time.[18] Many children go missing at this point as a result of this heightened vulnerability. Research has shown that unaccompanied young people disengaging from services may transition into precarity and destitution. Young people will seek community and support networks which may lead to exploitation.[19] Extending the guardianship schemes to cover this critical transition point, and ideally in line with leaving care services (up until the age of 25), would be of significant benefit for these children and act as a broader trafficking prevention measure. This was also a recommendation of the Independent Review of the Modern Slavery Act and is also being tested in some ICTG pilot cites.[20]

26. Additionally, there is also no current regulation of the service, with operational expectations set out only in still interim statutory guidance.[21] This service for children is commissioned by the Home Office and is the only statutory provision of direct support to children which is not inspected by any regime including the Office for Standards in Education, Children's Services and Skills (“Ofsted”).

Criminalisation

27. Trafficked children are often treated as defendants rather than victims in the UK justice system, resulting in their victimisation by the State as well as by their traffickers.[22] This is despite the fact that the statutory child welfare and protection guidance Working Together to Safeguard Children 2018 is clear that children who are encountered as offenders, or alleged offenders, are entitled to the same safeguards and protection as any other child and due regard should be given to their safety and welfare at all times. The process leading to prosecution can be a deeply traumatising experience for trafficked children with significant long-term impacts, punishing them for being victims of abuse. Children who are treated as suspects are incredibly difficult to then engage as witnesses due to the inevitable erosion of trust, thereby reducing the potential impact of the Modern Slavery Act to secure prosecutions.[23]

28. Section 45 of the Modern Slavery Act 2015 introduces a defence for victims, including children, who are compelled to commit criminal offences. The statutory defence only provides a defence after prosecution - it does not protect victims from being prosecuted in the first instance and is thus not compliant with the international definition of non-prosecution that states victims of trafficking should not be prosecuted or punished for criminal activities they have been compelled to commit as a direct consequence of being trafficked.[24] The statutory defence can therefore only act as a very limited safety net, rather than preventing criminalisation from occurring in the first place. Our understanding of the impact of this in practice is made more difficult by the fact that data on use of the statutory defence is not collected by neither the Ministry of Justice (“MoJ”) nor the Crown Prosecution Service (“CPS”).[25]

29. In addition, the statutory defence is not appropriate for children and not compliant with international legislation on child trafficking. The defence is based on the notion that a person is ‘compelled’ to commit the act and a ‘reasonable person’ would have no realistic alternative in the situation. A child who has been trafficked and enslaved would never ‘reasonably’ be able to consent to committing a crime and therefore cannot consent to being exploited, as explained in international law. The 2015 independent review of the Modern Slavery Act raised concerns about the statutory defence’s inconsistency with Article 8 of the EU Trafficking Directive.[26] As GRETA noted in its 2021 report, the “reasonable person” test indirectly introduces an element of compulsion that should not have to be proven in children’s cases.[27] As also recommended by GRETA, the reasonable persons test in the statutory defence should not apply to children.[28]

30. Section 45 also excluded offences by which a victim of trafficking may avail themselves of the defence. These are listed under Schedule 4[29] and include a large range of offences. The 2021 GRETA report noted that section 45 excludes the possibility of withdrawing prosecution and punishment for this wide list of offences, therefore raising concerns that this gives a “narrow interpretation of the non-punishment principle”.[30]

31. An inspection of policing responses to modern slavery and human trafficking also highlighted that inconsistent and ineffective identification of victims is failing to prevent criminalisation of victims of trafficking.[31] It found low awareness of the section 45 defence for victims of modern slavery who commit an offence, limited use of preventative powers and low numbers of notifications to the Home Office about potential victims. There is guidance for crown prosecutors in place to prevent children from reaching the point of criminalisation for crimes committed as a result of their exploitation, but cases of children being convicted continue, showing that the current guidance is not sufficient to ensure that children are protected. The court of appeal has emphasised the duty of both prosecutors and defence lawyers to make proper enquiries in criminal prosecutions involving individuals who may be victims of trafficking.[32] The CPS guidance states duties for prosecutors if they have reason to believe that the person is a victim of trafficking or slavery, including that they must make proper inquiries.[33]

32. Additionally, the guidance further conflates the definition for child victims under the Convention which excludes the ‘means’[34] section as it relates to children.  The guidance states that in the context of drug offences ‘the victims are often children, aged 14 to 17 years’ yet it goes on to state ‘However, if a person, by joining an illegal organisation or a similar group of people with criminal objectives and coercive methods, voluntarily exposes and submits himself to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid: R v Fitzpatrick [1977] N.I.L.R. 20.’[35] This interpretation contradicts the positive obligations imposed on states as defined in Ranstev and further elaborated in the recent case of VCL to establish an adequate legal framework that contains the spectrum of safeguards to ensure the practical and effective protection of the rights of victims.[36]

Hotels

33. Local authorities in England have a legal duty to safeguard and promote the welfare of children within their area who are in need, under the Children Act 1989. Children seeking asylum who have no responsible adult to care for them are clearly ‘in need’ and will inevitably require children’s services to care for and accommodate them under Section 20 or under a care order of the same Act – this support should begin “as soon as the child is referred to the Local Authority or is found in the Local Authority area”.[37] Despite this provision, the Home Office has developed a separate system where it accommodates children outside of this child protection framework in seven hotels across England and in doing so, has diverted children from accessing statutory care and protection from the local authority in which they are physically present.

34. This practice began in June of 2021, following the announcement by Kent County Council refusing to take any more unaccompanied children into its care, citing ‘extreme pressure’ on its services.[38] Later that month, the Home Office announced that, due to the “unprecedented number of small boats arrivals” it had decided to accommodate children in hotels while they were awaiting placement in other areas via the National Transfer Scheme (NTS).[39]

35. While the practices were characterised by the Home Office as “emergency” measures, to be operated for “the very shortest of periods” those same practices have now been continuing for some 20 months. Kent eventually resumed responsibility for separated children but the Home Office has continued to place children in hotels outside of the care of local authorities, ignoring the concerns of charities.[40] The Home Office announced in February 2022, they would temporarily mandate the NTS to all local authorities.[41] They subsequently announced in December 2022 a temporary increase in funding for local authorities to receive a lump sum payment until the end of February 2023.[42] In total, 4,600 children have been accommodated in such hotels since July 2021.[43] Due to the abject failure in safeguarding these children, there have been 440 missing episodes and 200 children who have never been found.

36. As the Independent Chief Inspector of Borders and Immigration (ICIBI) found in his report, children as young as 10, including girls aged 12 and 13, have been placed alone in these hotels with no access to legal advice or mental health support, and little access to healthcare.[44] Some children have spent months in these hotels before being taken into the care of a local authority. The Home Office has repeatedly failed to commit to an end date for accommodating children in this way – despite a recommendation from the ICIBI published in October 2022 following inspection in May, to end these practices within six months.

37. There is no legal basis for placing children in Home Office hotel accommodation and almost two years into the operation of the scheme which is both unlawful and harmful, the emergency situation turned into a crisis that is badly managed and it can’t be said that this practice is ‘temporary’. Despite this, the government has now included as part of the Illegal Migration Bill the power to accommodate children which will extend the use of hotels and other forms of Home Office accommodation or immigration detention. This unprecedented step will create a two-tiered system of care with the establishment of a power in conflict with the duties and obligations of the Children Act 1989. The Children’s Commissioners for England and Scotland have both stated their clear opposition, the former asserting that “these children should have looked after status from the moment they arrive and be in the care of local authorities”[45] and the latter highlighting that Clauses 15 to 18 seize powers and undermine the clear protections that Scotland’s devolved institutions have established[46] and that “the Home Office’s history of neglect renders it an unfit parent for vulnerable children.”[47]

38. Children's charities including NSPCC, Barnardo's, Action for Children, The Children's Society and National Children's Bureau coordinated by Children England and ECPAT UK have condemned proposals set out in the Illegal Migration Bill to create a segregated system of care for unaccompanied children outside of local authority social care.[48]

Unregulated accommodation

39. There is still no central funding for child victims of trafficking in the UK, unlike the central government contract for adult provision. Accommodation provision for trafficked children who become looked after varies significantly across the UK – from residential care homes, shared flats and houses, bedsits, bed and breakfast emergency housing, and foster care. Some of these are unsafe and unsuitable for children who are victims or are at risk of trafficking and can contribute to them going missing.[49] More widely, there has been a 28% increase in the number of under-18s placed by councils in so-called independent living accommodation, which lacks live-in staff support and includes unsupervised Bed and Breakfast accommodation, over the past eight years. This type of accommodation continues to be used for children who are unaccompanied and trafficked, despite guidance stating this is unsuitable.[50] Unaccompanied children seeking asylum are disproportionally represented in the numbers of those placed in this type of accommodation with 32% living independently and 34% in 16 to 17 year old looked after children[51] This type of accommodation is known to place children at greater risk of exploitation by criminal networks.

40. There is a government ban on looked after children under 16 placed in unregulated accommodation, but 16 and 17 year old’s (including unaccompanied and trafficked children) will continue to be placed in these forms of accommodation with no care.[52] The government has effectively created a two tier system of care for looked after children which is further entrenched rather than improved by the recent announcements regarding regulation of accommodation without care for 16 and 17 year olds.[53]

41. It is well-established that trafficked and unaccompanied children are particularly at risk of going missing within the first week of placement, and many within the first 48 hours. During accommodating decisions, there is minimal consideration of the appropriateness of the placement and the risk of re-trafficking in these cases. Rather, the current financial limitation of local authority children’s services and current lack of accommodation capacity will likely determine the placement.

42. The case of ‘H’ highlights this point[54]. When found as a 17-year-old child under the control of traffickers, H was arrested and charged with production of cannabis, and when produced before a magistrates' court the following day, the local authority took him into their care. However, instead of seeking safe accommodation such as a foster carer, he was placed in a hotel, where he spent five nights before going missing, only to be found three years later. This was a clear safeguarding failure that went against statutory duties: a victim of child trafficking, at high risk of going missing and being re-trafficked, was placed in unsafe and unsuitable accommodation.

43. Between 2017 -2019, ECPAT UK conducted a project with 4 Local Authorities in England which included a case audit of cases with modern slavery and human trafficking indicators known as Partnership Against Child Trafficking (‘PACT’). In 76 of the 120 cases, children and young people had gone missing. Startlingly, the number of episodes ranged from two to 65 instances within the previous twelve months. It was particularly noted that there was a specific need for safe and specialist accommodation for child victims of trafficking, including somewhere they could receive specialist therapeutic services. Although there are several agencies advertising placements, these were specifically for victims of sexual exploitation and were reported as being incredibly costly, meaning managers would likely have to decline requests for such placements.

44. One local authority participating in the PACT project wanted to develop and test a specialist, therapeutic residential resource but was unable to do so because of budgetary and resource constraint. This local authority was still forced to use ‘bed and breakfast’ accommodation to house highly vulnerable young people on occasion.  It is well known that appropriate accommodation is vital to the safety, security and personal development of trafficked and exploited young people.[55] Central government should, therefore, look to enable and encourage councils to innovate and pilot therapeutic residential support, as well as invest in local authority children’s services generally, because of the expertise, accountability and statutory duties that local authorities hold, including sourcing and securing appropriate accommodation that best meets the needs of the child.

What evidence is there, if any, that the National Referral Mechanism process is being exploited by individuals seeking asylum in the UK?

45. There is no evidence to support Government claims about the misuse of the UK’s identification system. The Statistics Regulator found no evidence for these claims.[56] ECPAT UK has attempted to request data to substantiate the claims made to justify sweeping legislative changes following the announced New Plan for Immigration and the Nationality and Borders Act without avail.[57] Children themselves cannot submit claims directly to the NRM, nor do they consent to being referred in. They must be referred by a designated First Responder organisation appointed by the UK Government. It is the Home Office itself that decides who qualifies for a positive NRM decision following a review of the merits of each case.

46. In 2022, 90% of Reasonable Grounds decisions for potential child victims were positive.[58] Similarly, in 2022, 92% of Conclusive Grounds decisions for child victims were positive. These figures show a remarkably high success rate for decisions made by the Home Office’s own staff, rather than a system being ‘abused’. The Government’s unevidenced claim, that reporting instances of trafficking are a tactic to access immigration leave fails to recognise the incredibly low rates for discretionary leave to remain for modern slavery victim in the UK, with only 2% of confirmed child victims of trafficking being granted leave in 2019 and 2020.[59] Figures obtained by ECPAT UK on 18 July 2022 show the same grant rate for children in 2021.[60]

47. As identified above, the change to the law in the Nationality and Borders Act 2022 means that child victims are even more unlikely to be granted immigration leave as victims. This is further exacerbated by the proposed changes to the law in the Illegal Migration Bill which will disqualify children from immigration leave and protection as refugees, human rights claims and as victims of modern slavery.

48. Research shows that children in particular, find it difficult to disclose their experiences of abuse.[61] In consequence, disclosure is rarely a single event, but happens over time and occurs only when the child has a trusted and secure relationship with a practitioner.[62] In addition, children who are exploited may, on first contact with a public authority, repeat stories which their traffickers have coached them to provide. Increasing harmful rhetoric to substantiate regressive policy changes will only serve to further harm children by placing more barriers in their identification as victims and access to support.

49. As detailed in November 2014 in the Home Secretary commissioned review of the NRM, led by Jeremy Oppenheim, the ‘Oppenheim Review’ which stated: ‘concerns over the conflation of human trafficking decisions with asylum decisions.’ Unfortunately, despite a decade of commitments, reviews, and transformation programmes, current government policy and rhetoric only serves to re-enforce the systemic issues identified in their own review over 8 years ago, leading once again to significant failures for children including human rights violations such as failure to identify and protect from significant harm.

How can legislation, including the Modern Slavery Act 2015, policy and criminal justice system practice be improved to prevent and address human trafficking?

Age disputes

1. There are significant obstacles in the identification of child victims of modern slavery. Children are unlikely to disclose their exploitation on initial encounters with a public authority yet for their ability to access the presumption of age set out in Section 51 of the Modern Slavery act, they encounter the first legal hurdle where a public authority with functions under relevant arrangements has reasonable grounds to believe that a person may be a victim of human trafficking.[63] Section 51 narrowly defines ‘public authorities’ and there is no statutory obligation for the Home Office or any court or tribunal in England and Wales to apply the presumption.

2. Age determination is an inexact science.[64] There is no reliable method for making precise estimates; medical assessments[65] have been found to be of little or no use in the age determination processes.[66] The Association of Directors of Children’s Services age assessment guidance notes that trafficked children are likely to have had experiences which have an impact on their ability to participate fully with the age assessment process.[67]

3. Section 51 does not require a formal reasonable grounds conclusion issued by a competent authority under the National Referral Mechanism, but there is still a significant lack of clarity in practice. This has led to failings with regard to the Government’s positive obligations under Article 4 of the European Convention on Human rights to prevent slavery, such as the recent case of TDT.[68] The explanatory notes for Section 51 sets out the terms under which the presumption may be applied and allows for the presumption to be removed when the person’s age has been determined by a lawfully compliant age assessment or other determination.[69] Albeit the notes emphasise the need for the public authority to ensure the benefit of the doubt is extended until a lawful age assessment takes place, in practice, the determination of the lawfulness of an assessment relies on various practical steps, during which time the age disputed child will no longer be under the protection extended under the presumption of age provision.

4. This additional barrier contravenes international obligations to ensure that when there are reasons to assume that a person whose age is unknown is a child, or if a person claims to be a child, the person shall be given the benefit of the doubt and presumed to be a child,[70] irrespective of whether or not a public authority had the knowledge and ability to reasonably suspect that putative child might be a victim of modern slavery.

5. Additionally, the recent decision in the Supreme Court in the case of R (on the application of BF (Eritrea)) (Respondent) v Secretary of State for the Home Department (Appellant) that the Home Office’s ‘significantly over 18’ policy of determining age by immigration officials was deemed lawful re-establishing a significant rise in children treated as adults at port regardless of whether or not they are victims of modern slavery and thus subject to the presumption of age.

6. This is further compounded by subsequent provisions in the Nationality and Borders Act 2022 which provide for scientific age assessments, the creation of the National Age Assessment Board within the Home Office to conduct age assessments, new standard of proof and the likely increase in of subject more children to age assessments despite current statutory guidance which sets out these should only be conducted in case where there are reasons to doubt.[71]

March 2023