A number of cases have highlighted that not enough is being done to protect trafficked children at risk of going missing. Maria Moodie and Silvia Nicolaou Garcia discuss the legal protections available in England and Wales and report on the wider problems in Europe.
For too long, trafficked children have continued to go missing, sometimes repeatedly and sometimes forever.
A number of cases in England and Wales from recent years serve as a useful reminder that practitioners should remain vigilant of the actions and policies of the Home Office, local authorities, the police and others (including lawyers) in reducing the risk of trafficked children going missing and/or being re-trafficked.
A widespread problem practitioners face when acting for trafficked children who go missing before, during or after litigation is the culture of disbelief in the courts and the statutory authorities. This mentality leads to the missing child being labelled as an ‘absconder’ or as having ‘chosen to disappear’ rather than a proper recognition of the indicators and risk of re-trafficking, and often leads to further criminalisation of trafficked children, a problem corroborated by the ECPAT UK and Missing People’s November 2016 report, Heading back to harm: a study on trafficked and unaccompanied children going missing from care in the UK
Since March 2015, cases in which children are marked in the ‘missing’ category receive an active police response, whereas those marked as ‘absent’ are considered to be at ‘no apparent risk’ (Changes to the definition of ‘absent’ & other matters
, Chief Constable Patrick Geenty, 11 March 2015) and as such receive no immediate police action to find the missing child save for the case being left under review. In May 2016, the final report of the All-Party Parliamentary Group for Runaway and Missing Children and Adults, Inquiry into the safeguarding of ‘absent’ children: ‘It is good when someone cares’
, quoted Missing People’s Jo Youle, who noted that the ‘absent category has created a group of children who have gone missing and never received any response’ (page 49). The inquiry recommended that the ‘absent’ category should be abandoned by the police and that all missing children should instead receive a proportionate response based on the risks they face. Practitioners acting for child victims of trafficking are encouraged to alert the police and other relevant authorities of the potential risk of any missing episode taking place and request that appropriate protective measures are put in place.
If missing trafficked children are seen as criminals and ‘absconders’ or ‘absent’ first, they are deprived of a proper risk and support assessment when eventually re-encountered by the authorities. In practice, if the first match lists the child as ‘wanted’ by the police or as an ‘illegal absconder’ wanted by the Home Office, as opposed to a vulnerable missing child potentially in an exploitative situation or at a very high risk of suffering significant harm, the proper steps to safeguard and protect his/her welfare as the first and foremost consideration are often overlooked.
Authority to act on behalf of the missing trafficked child
Another question is what to do when a trafficked child goes missing during the course of litigation. Although finality in proceedings is important, courts must be encouraged to adopt a pragmatic approach that balances the equally important interests of justice for the vulnerable child litigant and the overarching need for issues to be properly resolved.
In R v Okedare and others  EWCA Crim 228
, the Court of Appeal addressed this issue in the context of six criminal appeals on behalf of applicants who had disappeared or absconded. One of the applicants, K, was a Vietnamese trafficked child who was arrested at a cannabis farm and subsequently charged with producing class B drugs. K instructed his lawyers to appeal the criminal conviction. He was referred to the National Referral Mechanism (NRM), which accepted that there were reasonable grounds to believe he was a victim of trafficking. He subsequently went missing during his probationary period, with his lawyers believing he had been re-trafficked. K’s criminal appeal was stayed on the basis that there was no material confirming whether or not he had actually been re-trafficked and that an adverse decision on his appeal in his absence could be detrimental to him. The court provided the following guidance on the correct approach to applications for permission to appeal against conviction or sentence made on behalf of applicants who have subsequently disappeared or absconded:
… applications from absconders should not be treated as ineffective per se. If there are grounds for believing an absconder has given authority to appeal, expressly or impliedly, or the case is one where the court might wish to intervene in the interests of justice, the court should proceed as normal. The application should be put before the single judge [who] may adjourn the application for more information, grant/refuse leave or refer the application to the full court as usual (para 31, emphasis added).
In L v Essex County Council
(2016), the claimant child had challenged the local authority’s determination of his age. The claim was granted permission by the Administrative Court before being transferred to the Upper Tribunal (Immigration and Asylum Chamber) for a full fact-finding hearing. At this stage, the child disappeared and the claim was dismissed. An application to set aside the dismissal order made four months later was successful on the basis that the one-month time limit in Tribunal Procedure (Upper Tribunal) Rules 2008 SI No 2698 r43(3) was triggered by service of the order on a party. As a result of the child disappearing, he could not have been served and his solicitors were no longer on the record. The solicitors only became aware of the order once the child reappeared and made the application to set aside within one month of that date.1For more on this case, see Siân Pearce of Duncan Lewis's article on how previously dismissed judicial reviews can be effectively resurrected.
Protection for trafficked children at risk of going missing
As soon as concern arises, civil society and practitioners must notify the relevant authorities of their concerns and apply pressure to ensure that those identified as being at risk of going missing benefit from appropriate and adequate protective measures to minimise or eliminate this risk. This is heightened in the case of trafficked children and care leavers in the direct care of local authorities. The importance of this pre-emptive action and protection cannot be overstated. It is vital in protecting vulnerable children from further harm, exploitation and traumatisation. A preexisting record of the identified concerns and risks of disappearance or re-trafficking ensures the child does not fall into the protection gap by simply being marked as ‘absent’ or an ‘absconder’ towards whom no police action is taken. It could also avoid the risk of further criminalisation, detention or deportation when the missing child is re-encountered.
R (TVD) v Secretary of State for the Home Department  EWHC 4508 (Admin) was a challenge to the Home Office’s NRM decision that a trafficked 17-year-old child (18 years old at the time of the hearing) was not a victim of trafficking. TVD was released from immigration detention during the course of the proceedings and subsequently went missing. His claim was not dismissed as a result of him going missing, but was instead stayed with an accompanying order for TVD not to be deported pending determination of his claim.
R (TDT) v Secretary of State for the Home Department  EWHC 1912 (Admin)
involved a breach of European Convention on Human Rights (ECHR) article 4 claim on behalf of a child victim of trafficking who, on arrival to the UK, was detained by the Home Office at an immigration removal centre. Several individuals who had entered the UK along with the claimant had gone missing following release from immigration detention and were presumed to have been re-trafficked. The claimant’s lawyers put the Home Office on notice that there was a very high risk of him being re-trafficked if he was released from detention without adequate safeguards being put in place. Despite these warnings, the claimant was released to a private, unverified address without liaison arranged with other agencies. McGowan J dismissed the claim and found that the Home Office had not breached the article 4 protective duty in respect of his release but noted that, given the representations made prior to his release regarding the risk of re-trafficking, he should not have been released without his lawyers having an opportunity to apply for an injunction to stop him being released without protective measures in place. Permission to appeal this decision is being sought from the Court of Appeal.
The recent Interim guidance for the three independent child trafficking advocates early adopter sites – Greater Manchester, Wales and Hampshire
(Home Office, 27 January 2017) can be utilised by practitioners to apply pressure or pursue challenges against relevant authorities to ensure that appropriate and adequate protection is put in place to prevent re-trafficking, which can include the provision of social services accommodation. Paragraphs 114–120 of the guidance are particularly helpful in establishing that an NRM challenge should not necessarily be suspended when a person goes missing. It states that independent child trafficking advocates ‘may also discuss with the competent authority (CA) whether the CA will suspend or proceed to take a decision on the child’s NRM status in the [meantime]’2Victims of modern slavery – competent authority guidance version 3.0 (Home Office, 21 March 2016) states that an NRM decision must still be made if sufficient information is available (page 62).
and must ‘ensure momentum of the case is maintained and that the child does not disappear from the considerations of statutory agencies involved in finding them’ (para 120).
Lost not forgotten
For too long, trafficked children have continued to go missing, sometimes repeatedly and sometimes forever. Upon first encounter, practitioners should identify and record any immediate risks or indicators of re-trafficking in order to notify the relevant authorities and to request specific protection. Instructions should be taken from clients and their litigation friends at the start of cases about whether they want their cases to go ahead in their absence if they go missing. Other pre-emptive actions, such as liaising with all the agencies who support the trafficked child, recording information quickly and accurately, and organising a multi-agency meeting to minimise the risk of clients going missing and/or being re-trafficked and continuing to act in the trafficked child’s best interests if s/he goes missing, including challenging ineffective police investigations, should also be part and parcel of our work for this client group.
Lost and missing child victims of trafficking should not be forgotten; momentum in their cases once they go missing should be maintained and their files should be kept under active review, not immediately closed and billed. These steps could go a long way in ensuring missing children are not forgotten and in maximising the chances of finding and protecting them.
Children missing in migration across Europe
On 26 and 27 January 2017, the authors of this article, with Philippa Southwell from Birds Solicitors, delivered a joint legal workshop at Missing Children Europe’s Lost in Migration conference on the legal protection of unaccompanied and trafficked children in Europe.3See reports from Garden Court Chambers and Simpson Millar.
A number of alarming statistics were the focus of the conference. According to a Europol investigation, at the beginning of 2016 at least 10,000 refugee children had gone missing since arriving in Europe (Mark Townsend, ‘10,000 refugee children are missing, says Europol
, 30 January 2016); currently 30 per cent of all people seeking asylum in Europe are children (Daniel Boffey, ‘Europe’s treatment of child refugees “risks increasing radicalisation threat”’, Guardian
, 22 March 2017); since January 2016, 38 per cent of those who have arrived in Greece are children (Compilation of data, situation and media reports on children in migration
, EU, last updated 12 April 2017).
Unaccompanied and trafficked children are going missing as a result of poor reception conditions, complex family reunification procedures, delay in the appointment of a guardian, lack of adequate training for frontline professionals and a lack of co-ordination at a national and international level.
The conference conclusions
were sent to EU ministers on 22 February 2017 and are open to endorsement from civil society, NGOs, international organisations, politicians, lawyers and academics. They have already been endorsed nationally and at EU level by 48 organisations.