Child Victims of Human TraffickingThe Legal FrameworkKIRSTY THOMSONHEAD OF WOMEN AND YOUNG PERSONS’ DEPARTMENTLEGAL SERVICES AGENCY

Legal Services AgencyBACKGROUND

Legal Services Agency

Legal Services Agency (LSA) is Scotland's largest law centre tackling the unmet legal needs of those in disadvantage. It does so through the provision of legal advice, representation in courts/tribunals, research, publications, seminars and education.

It is 25 years old this year. LSA undertakes work in the following areas:-

Protecting the rights of refugee and migrant women and children through its Women and Young Persons’ Department

Preventing homelessness, defended eviction and mortgage repossession through its Court Department

Mental health, dementia and social welfare law through its Mental Health and Legal Representation Projects

Women and Young Persons’ Department

The Women and Young Persons’ Department provides legal advice and representation to:-  Refugee and migrant women who have suffered gender based

violence through its Women’s Project; and Refugee and migrant children and young people (up to age 25)

through its Young Person’s Project. The Department has a wider policy remit to improve outcomes

for its client group in Scotland and offers:- free second-tier advice to lawyers, organisations and individuals who

are assisting or supporting its client group; and contributes to training, research and policy in issues that directly

affect its client group at a local and national level.

Women and Young Persons’ Department (2)

• Women’s Project - 3 female lawyers and has been in existence since 2005. • Young Persons’ Project – 2 lawyers and has been in existence since the start

of 2012.• Both Projects are funded to utilise a human rights based approach in the

provision of its services. • Both Projects are based in Glasgow but have a national remit where possible.• The Department retains a unique perspective within Scotland in relation to

human trafficking. • National remit• Works with both adult and child victims of human trafficking• Works with different types of exploitation• Provides direct legal service provision as well as contributing to

policy/research.

Human Trafficking and the Department

The Women’s Project (1 April 2013 – 31 March 2014) 52 (34%) of the women and girl children assisted by the Project disclosed that they had

been trafficked to the UK. 40 (26%) of the women and girl children have disclosed trafficking for the purposes

of commercial sexual exploitation and 12 (8%) have been for other purposes.

The Young Persons’ Project (1 January 2013 – December 2013) 26 (31%) of the children and young people assisted by the Project disclosed that they

have been trafficked to the UK.  15 (18%) of the children and young people have disclosed trafficking for the

purposes of domestic servitude, 13 (16%) have disclosed trafficking for forced labour, 7 (8%) have disclosed trafficking for sexual exploitation and 2 (2%) have disclosed trafficking for forced marriage.

Human Trafficking and the Department (2)

Legal advice and assistance provided to these clients covers the following areas:-•immigration•international protection/asylum•identification as a victim of human trafficking through the identification system which operates in the UK (the NRM)•age assessment•access to financial/welfare support•access to housing•non criminalisation (in conjunction with criminal lawyers)•criminal injuries compensation

International law -RIGHTS AND THE RESPONSIBILITIES OF THE SCOTTISH STATE

The Legal StandardsSTATE RESPONSIBILITIES

The International Standards

There are a number of international standards from the United Nations (UN) and the International Labour Organisation (ILO).

The UN Convention of the Rights of the Child The most important standard is the UN Protocol to

Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol)

It provides a definition of trafficking in persons which has since been widely adopted in the international community.

European Human Rights Law

Council of Europe Convention on Action against Trafficking in Human Beings (the Trafficking Convention) is a key standard in this area. Expands the definition of human trafficking. Provides a comprehensive framework for the identification,

protection and promotion of victims’ rights . The European Convention of Human Rights (ECHR).

Human trafficking, as defined within the Trafficking Protocol and the Trafficking Convention, is specifically prohibited by Article 4 of this Convention.

Other rights protected by the ECHR may also be engaged when looking at a state’s responsibilities to victims of human trafficking Article 4 prohibits slavery and forced labour.

European Union Law

Council Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (the Trafficking Directive). further extends the definition of human trafficking establishes a set of protection measures which states must ensure

are in place for victims. Charter of Human Rights which expressly prohibits human

trafficking. The EU has increasingly adopted legal measures which seek to

strengthen protection for victims of human trafficking in the areas of compensation, residence permits and protection afforded to witnesses in criminal proceedings

Key Concepts INTERNATIONAL PROTECTION FOR VICTIMS OF HUMAN TRAFFICKING

Human Rights Based Approach

The Trafficking Protocol /Trafficking Directive are largely framed against a criminal justice background.

This is in contrast to the Council of Europe standards which are entirely located within a human rights framework and consequently is often where the greatest protection for victims is found.

Not unsurprising therefore that law enforcement often takes priority in a state’s response to human trafficking BUT

Even the criminal justice standards recognise that the best means to achieve criminal prosecutions is to provide for the protection of victims in a way that respects their human rights

Therefore, the failure of a state to prioritise the human rights of a victim is a failure to act in compliance with international law.

Due Diligence (1)

Human trafficking is a crime largely perpetrated by individuals and not states.

However international law and the jurisprudence from the European Court of Human Rights makes it clear that public authorities within member states must act with due diligence.

Therefore, whilst states cannot be held responsible for the acts of private individuals, they can be held to account for their own failures to prevent, protect and prosecute acts of human trafficking

Due Diligence (2)

The European Court of Human Rights has made it clear that in order to meet the standard of due diligence in the area of human trafficking, states have positive legal responsibilities to ensure the following:- that a legislative and administrative framework is in place designed to

punish traffickers; that individuals are identified and protected from trafficking (which at a

minimum would include the rights contained within the Trafficking Convention); and

that human trafficking is investigated and if possible prosecuted Provide victims with a powerful tool to ensure that states do indeed

prioritise their human rights within any anti-trafficking response.

Concept of a Victim – Definition (1)

The Act (What is done) Recruitment, transportation, transfer, harbouring or receipt of persons.

The Purpose (Why it is done) For the purpose of exploitation, which includes

exploiting the prostitution of others, sexual exploitation, forced labour, slavery or similar practices removal of organs. forced begging, the exploitation of an individual in criminal activities illegal adoption forced marriage.

Concept of a Victim – Definition (2)

In order to ensure that an individual obtains the relevant protections they are entitled to under international law, they require to be recognised by the state as a victim.

Problems with the definition of who is a victim of human trafficking Problems with Definition – lack of understanding of its

development in international law and its components. Problem therefore with internal acts of trafficking and/or not

involving organised crime. Over-concentration on movement. Problem with recognising exploitation – commercial sexual

exploitation over criminal activities. The “losing” of victim status with the latter.

Concept of a Victim - Formal Identification

The key to a state meeting its international obligations, and therefore the cornerstone of victim protection, is the early identification of victims of human trafficking

Within most European states, victims are formally recognised as such through formal identification systems called National Referral Mechanisms (NRMs).

The basic aim of an NRM, as defined by the OSCE, is to ensure that the human rights of trafficked persons are respected and to provide an effective way to refer victims of trafficking to essential services required for their recovery and protection.

The Problem with NRMs in International Law

Many countries have adopted identification mechanisms which are referred to as NRMs but which vary in how closely aligned they actually are to the OSCE principles.

Many are law enforcement led which can limit the access that victims have to the rights and protections they are entitled to under international law.

Individual is not recognised as a victim unless that status has been formally conferred on him or her through a formal framework such as an NRM.

This is despite International and European legal standards being clear that where an individual meets the definition of a victim of human trafficking, they are to be recognised as a victim with all the rights and responsibilities that this entails. Such rights do not stem from a formal status conferred on a victim but from the victim’s experiences themselves and international law.

VICTIM RIGHTS

INTRODUCTION

In order to ensure that states do meet their international obligations, victims of human trafficking have a right to access the following regardless of whether they have been formerly identified as a victim. Access to information on available remedies in a language victims

understand. Access to support and assistance to facilitate rehabilitation. Access to legal assistance and free legal aid for the duration of any

criminal, civil or other action against the traffickers. Guarantees of non-repetition (states must take all measures necessary to

protect a victim including effective prosecutions and sanctions and international protection/residence permits for foreign victims).

Access to restitution including restoration of liberty. Access to compensation.

A Particular Focus on Children (1)

International law recognises that children have particular needs and require additional protections and rights which it provides,

This makes the identification of child victims of trafficking crucial. Age Assessment

In case of uncertainty about the age of the trafficked person, he or she should be presumed to be a child in order to receive immediate assistance, support and protection

Guardian/Representative There is a requirement that a child be provided with a guardian or

representative, from the moment a child is identified by the authorities, in a situation where the parents cannot represent the child because of a conflict of interest between them, or because they are absent.

A Particular Focus on Children (2)

Individual Assessments Trafficking Directive requires individual assessments of the

circumstances of each child victim to be carried out taking into account the child’s needs and concerns with a view to finding a durable solution.

Specific assistance, support and protection to child victims of human trafficking who are defined as being under the age of 18. Equivalent to a “looked after” child in Scotland regardless of

his or her age.

GUIDING PRINCIPLES FOR THE ASSISTANCE AND SUPPORT TO CHILD VICTIMS

Trafficked children should never be placed in a juvenile justice detention facility, including a police cell, prison or special detention centre for children. Care and support for trafficked children should be made available as a right and should never be conditional on the child’s cooperation with criminal justice authorities. Every child under the jurisdiction of a State is entitled to care and protection on an equal basis. This

means that non-national child victims should enjoy the same rights as national or resident children. Children should be given information about their situation, their entitlements, services available and the possibilities for family tracing and contact, as well as reunification and/or the repatriation process. The privacy of children should be protected. From: OHCHR, Commentary on the Recommended Principles, p. 166-169.

ScotlandPROTECTION OF VICTIMS OF HUMAN TRAFFICKING

Problem Areas

Devolution Policy response as opposed to a legislative response Implementation of the NRM – Red Herring Confusion and lack of awareness and understanding regarding

legal responsibilities and therefore victim rights Peculiarities of the Scottish System – Age as an example

Devolution

In terms of interventions in the area of human trafficking, immigration is a reserved matter. Human trafficking and the formal identification of human trafficking

through a National Referral Mechanism are viewed by the UK government to fall within the area of immigration and are therefore reserved matters.

However, this is at odds with the fact that criminal law and victim care are devolved matters in Scotland as are health and the safeguarding and protection of children.

Therefore, the majority of public authorities tasked with victim protection operate within the devolved competency of the Scottish Parliament yet human trafficking remains a reserved matter.

National Policy instead of National Legal Standards

UN Trafficking Protocol/COE Trafficking Convention

need to be specifically incorporated into national legislation to have direct legal effect.

although some parts of these instruments have been incorporated, the provisions which relate to the definition of human trafficking and the victim protection measures have not been incorporated

These provisions by far provide the greatest protection for victims but the UK, and therefore Scotland, has largely sought to comply with them through the development of policy rather than legislation.

NRM - Policy

NRM created to comply with COE Trafficking Convention. It is a creature of policy Law/immigration enforcement led is not contained within any legislation in the UK including Scotland. Indeed, its operation is largely detailed within Immigration Guidance.

The NRM system within the UK has attracted significant criticism from both internal and external monitoring bodies.

It has been criticised for failing to adhere to the OSCE principles of an NRM as it is not a referral body.

Its function is to receive requests and identify victims only.

However…………….

The Human Rights Act ensures that all legislation must be read in a way which is compatible with the ECHR. Therefore, all public authorities must act compatibly with these rights.

This is a powerful legal avenue for victims in terms of protection and one that has been used with success in terms of the UK government’s failure to protect victims and prosecute traffickers.

The EU Directives do have direct legal effect within the UK, including Scotland, with EU law having supremacy over national law. These are again powerful tools.

Other international legal standards give support to such arguments.

The NRM – A Red Herring?

In respect of children, identification and protection is the responsibility of local authorities.

Social Work services within these authorities, through their local procedures, will ensure the provision of, or access to, accommodation, health, financial support, education and specialist counselling.

Where a child is deemed to be a potential victim of human trafficking, child protection procedures should be instigated.

National legislation containing duties to promote and safeguard the welfare of children. A child victim of trafficking is a child in need of protection like any other child.

These legal responsibilities, international and national, apply regardless of whether a child has been referred into the NRM or not. The NRM can be a red herring in terms of ensuring public authorities act in compliance with international law.

Need for Legal Standards

To date, no specific and comprehensive piece of legislation has been introduced, by either the UK or Scottish Parliaments, in relation to human trafficking.

There is therefore no national legal instrument which defines human trafficking and sets out the rights and responsibilities in relation to victim protection as contained within the International and European standards.

Instead, the national legal standards which relate to human trafficking within Scotland are found in a plethora of piecemeal national legislation and policy focussing on law enforcement, immigration and broader standards relating to the welfare of children.

Rights regarding victim care and support have largely been transposed through policy initiatives and funding arrangements rather than through legislation.

Human Trafficking Bill – focus on enhanced victim protection

Who is a child in Scotland

Age Assessment – no scientific way in which to determine the chronological age of a child.

A child is often viewed as being 16 and under within Scots law and practice.

Child protection procedures should be instigated but such procedures however are often only relevant to children under the age of 16.

For children aged 16-18 other safeguarding procedures require to be undertaken and these vary dependant on the local authority area.

Aside from the actual procedure, there can be ambiguity regarding the level and type of support provided to those aged between 16 and 18

However, international law is clear that a child victim of trafficking is aged 18 and under. which could lead to differential and unlawful treatment in terms of victim protection of those aged between 16 and 18.

CONCLUSION

Improvement needed

The introduction of key standards into Scotland has undoubtedly led to greater awareness of human trafficking as a key issue that requires tackled.

Gaps remain however in the understanding of the definition of human trafficking particularly in the areas of internal human trafficking, means of control by traffickers and the varied types of exploitation involved.

It is also not just about foreign children.

It is not just about immigration

Immigration led approach masks the fact that for the most part, many public authorities who have legal responsibilities within victim protection fall within the devolved competence of the Scottish Government (for instance police, the legal system and local authority provision).

As a result of the International and European legal standards set out earlier in this chapter, these public authorities within Scotland have a duty to identify and protect potential victims of human trafficking regardless of their identification and/or participation with the NRM.

Failure to do is a breach of international law.

Kirsty Thomson - 0141 354 1270kirstythomson@lsa.org.uk

Telephone Advice Line, Tuesdays 2-4 – 0800 316 8450/0141 353 3354 Free Drop in, Wednesdays 10-12.30, Fleming House, 134 Renfrew Street, Glasgow