Modern Slavery Act 2015 – Statutory Guidance for England and Wales, Home Office, March 2020
The Home Office has published guidance for professionals in England and Wales who work with victims of modern slavery, including those who support victims and those who assess whether an individual is a victim of the crime.[1]
Details
Modern slavery describes the exploitation of people in order to satisfy the demands of others.[2] Within the guidance (and this summary) it encompasses human trafficking and slavery, servitude and forced or compulsory labour. Because children in law are unable to consent to their exploitation, the legal test for determining whether someone is a victim of modern slavery is different for an adult and a child. Human trafficking of children only requires an action (for instance the transportation, transfer, recruitment of a child) in order to exploit the child for various specific purposes, such as forced criminality, sexual exploitation or forced labour. Someone may be trafficked from another country into the UK, or trafficked within the UK. Where a child is not a victim of human trafficking, because the action requirement is not met, he or she may nevertheless be a victim of slavery, servitude or forced or compulsory labour.
Identifying potential victims of modern slavery is essential to any efforts to protect victims and confront the criminal activity. The Single Competent Authority [‘SCA’] is tasked with assessing individual cases in order to determine whether someone is a victim of the crime. When it is believed a child may be a possible victim of modern slavery the, the Local Authority with safeguarding responsibility should be contacted and the child should be referred to the National Referral Mechanism, the process by which the SCA reviews the case and determines whether on the balance of probabilities, the child is a victim of modern slavery (the conclusive grounds decision).[3] Only individuals working in certain organisations (‘First Responders’) are able to refer people to the National Referral Mechanism, but the list includes Local Authorities, the police and certain charities.[4] The child does not need to consent to the referral, although the Guidance makes clear that every effort should be made to ensure that the child understands what is happening, a process that often is best carried out by children’s social care.[5]
The Guidance identifies some indicators of modern slavery that professionals should be aware of when working with children[6] and the correct approach for SCA employees when assessing the referral of a child to the National Referral Mechanism.[7] Decision makers will need to consider whether there is evidence of modern slavery and whether the evidence is credible. Whilst the decision maker must assess the evidence ‘critically’, it is nevertheless ‘vital’ that the decision maker understands why a victim’s account may be incoherent, inconsistent or delayed.[8] A number of factors can affect narrative expectations, including trauma, immaturity, mental illness or issues arising from gendered and/or cultural expectations. There are examples of more complex cases in Part 2, for instance where the exploitation has begun abroad, or where the individual does not view themselves as a victim and the Guidance makes clear the procedural steps that must be completed before the SCA decides that the individual is not a victim.[9]
Once identified, potential child victims are eligible for a range of support, the nature of which depends upon the needs of the individual.[10] Any suspected child victim should be referred through the normal safeguarding route to children’s social services. Where required under section 17 of the Children Act 1989, a social worker must then be allocated to a child to assess their needs and draw up a care plan, identifying how the individual’s needs will be met.[11] The plan may include access to legal support, health services, education and appropriate and safe accommodation. Whilst a child may come to the attention of social services at the same time as a referral to the National Referral Mechanism, the Local Authority’s duty to support children exists until the child reaches the age of 18 or, where the child had looked after status, 25. In addition to Local Authorities’ normal obligations, a suspected victim may be eligible to an Independent Child Trafficking Guardian, who speaks on the child’s behalf and acts in their best interests.[12]
Commentary
The Guidance assists in identifying the minimum standards of care that every potential child victim of modern slavery is entitled to and will no doubt assist those working with victims in securing the best results for the individual concerned. All potential child victims must be referred to the National Referral Mechanism and the guidance on how decisions are reached should prove useful to those who assist children through the referral process, enabling comprehensive referrals and perhaps more importantly, critical assessment of the quality of a decision once received.
Written by
Ruth Broadbent, QEB Hollis Whiteman Chambers
In collaboration with the Youth Justice Legal Centre
Footnotes
- The Guidance does not apply to Scotland and Northern Ireland except where otherwise stated [back]
- See Part 2 of the Guidance for further detail [back]
- The process is described in more detail at Part 7 of the Guidance [back]
- A list of First Responders is at page 36 [back]
- Part 5 of the Guidance gives further detail as to how to make a referral [back]
- Part 3 of the Guidance [back]
- Annex E of the Guidance [back]
- Page 99 of Guidance [back]
- Annex E, paragraph 14.44 onwards [back]
- Local Authorities’ duties to a child under section 17 and 47 of the Children’s Act 1989 may be engaged. Where the child is unaccompanied, the obligations under section 20 of the same Act will also be engaged, see paragraph 16.5. [back]
- 1See Annex G of the Guidance for detail [back]
- The availability of the Independent Guardians scheme is currently restricted to one third of Local Authorities, which are listed here [back]