Methoria's First Rights Project advocates establishment of a truly child-oriented and child-rights principled new court
A very interesting report published in March considers and recommends the development of a dedicated court process for unaccompanied asylum seeking children.
The 80-page report, Equal Justice for Migrant Children - Towards a Specialist Court for Unaccompanied and Separated Migrant Children, is available here.
It was commissioned by the human rights charity Methoria and authored by academic researchers from the Refugee Law Initiative (RLI) at the University of London's School of Advanced Study.
Methoria's First Rights Project proposes that a new specialist court should be set up for unaccompanied and separated refugee and migrant children in the UK and it should be truly child-oriented and child-rights principled.
The co-directors of Methoria are Catriona Jarvis, a former judge of the Upper Tribunal (Immigration and Asylum Chamber), and Syd Bolton, a solicitor with many years of expertise in immigration and child law (and, incidentally, also the designer of the EIN logo way back in 1995).
As the report explains, children who are not British citizens currently do not have straightforward and speedy ways to resolve their immigration status, and this is aggravated for unaccompanied asylum seeking children.
"Children have to navigate adversarial processes and court proceedings, rather than ones that are child-friendly and trauma-informed. To address some of the challenges with the current system, the First Rights Project of Methoria has been pursuing the initiative to establish a special court for unaccompanied and separated refugee and migrant children for some time," the report adds.
The report explores the practical steps for establishing the workings of the proposed new court, looking at how it can meet the best interests of the child in both procedural terms and substantive decision-making terms.
It proposes the initial creation of a pilot scheme under the Family Division of the High Court that puts the 1989 United Nations Convention on the Rights of the Child (CRC) at the heart and centre of all aspects of the decision-making and judicial process for unaccompanied asylum seeking children.
The Family Court is chosen for the pilot as the report notes that the Immigration and Asylum Chamber of the Tribunal has struggled to apply child justice standards commensurate with those set down in the CRC.
The report says: "Methoria has developed a draft model which sets out a Pilot Court (PC) established under the jurisdiction of the Family Division of The High Court, which will combine the expertise of different jurisdictions and administrative decision-making processes to resolve the protection and welfare issues of migrant children in a non-adversarial manner, focussed on the best interests of the child. It is modelled on existing statutory responsibilities and powers, decision-making process and judicial structures, building on and adapting existing arrangements and jurisdiction of the courts where necessary. According to legal advice Methoria received in 2022, establishing this court would be feasible without the need for changes to primary or secondary legislation.
"The court will have supervisory and substantive decision-making functions, the ability to empanel judges from the Family Courts, Immigration and other Tribunals and to set timetables for the proceedings that statutory bodies must adhere to. The child will have the benefit of a children's guardian representing their best interests throughout the proceedings and is not expected to be subject to an adversarial process, delays, or unnecessary or repetitious interviews and proceedings. Methoria's draft model for the pilot court sets out the process for children and other actors within the proposed new system. Within current family law proceedings, a Local Authority may apply to a Family Court for a care order S.31 which places a child in the Local Authority under their care or supervision, which is set out in s.31 Children Act 1989. Children within the Pilot Court cohort will be identified by Local Authority children's services departments on the basis that they are children who they intend to care for under s.31. The Local Authority will initiate s.31 proceedings, the timetable and procedure for which will be – it is proposed – modified to include intermediate stages to address best interests and inter alia immigration status, international protection (and, potentially, matters of age dispute resolution)."
The report explores how this pilot could be developed and implemented. Based on research conducted in late 2023, it engages with the perspectives of children and young people who have experienced the current system, to gain better understanding of what outcomes and principles they think a new court should have.
Catriona Jarvis and Syd Bolton said: "At the heart of these proposals lies the principle that children's rights are not an unaffordable luxury but an essential aspect of all policy decision-making for children as a group and for every individual child. Implementation of the Children's Convention is a progressive and positive obligation on all States signatory, not a matter of discretion. Effective use of public money should mean that every pound spent on systems and decision-making concerning children should be focused on delivering the best possible justice and achieving the best possible outcomes for those children. That applies equally to migrant children as it does to any others. We think this report is an essential step in that direction."