Lord German (LD)

My Lords, the evidence coming out in our debate today is that there are a lot of examples where people are being wrongly assessed as adults. Last weekend, I met a group of local authority leaders who told me about a situation last November, regarding unaccompanied children who had been kept in hotels and were coming out into their care. I asked whether it had improved, and they said that the numbers may have changed but there were still examples of young people who had been taken out of the system because they had been wrongly assessed. The current system for determining the age of unaccompanied children seeking asylum remains deeply flawed. I think there are not many who would accept that it is all working really well. We already have some indication that the cohort of people being sent back to France included a number of children, largely because they were inspected rapidly upon entry by Border Force officials. As we know from the noble and learned Baroness, Lady Butler-Sloss, appearance, demeanour and physical development are all affected by environment, life experiences and ethnicity, and making visual assessments is notoriously unreliable. In answer to the point that there will be some people who will play the system, we need to understand that, when children are wrongly treated as adults, they are denied the rights and protections afforded them as children. That risks them being placed in adult accommodation, detained or even prosecuted. That is a clear safeguarding failure. Misidentification of children as adults poses a greater safeguarding risk than the reverse, primarily because adult systems lack the robust protections necessary for children. We have already seen cases where individuals who raised that their age was under 18 were subsequently arrested and charged in the adult criminal justice system, leading to time spent in adult prison on remand, or a conviction on immigration offences. The stakes in this Bill are extremely high, with the new offences related to immigration crime contained within it carrying substantial periods of imprisonment, sometimes up to 14 years. It is critical that we safeguard against the unintended consequence of criminalising vulnerable individuals seeking protection. I know that the Government have started to look carefully at these issues, as we had this discussion during Committee. The Government said that there were concerns about how such an amendment would operate in practice, mentioning the risk of delays that could arise from waiting for a full assessment, and that it would potentially frustrate the removals process and add to asylum backlogs. But at that time the Minister gave assurances, as he will know, that existing safeguards are in place. He named three: that the Home Office decision on age for immigration purposes is not binding on UK courts; that the Crown Prosecution Service is advised of age-dispute issues and determines if pursuing prosecution is in the public interest; and that the Home Office has introduced an additional safeguard, whereby an abbreviated age assessment conducted by qualified social workers is provided for individuals assessed as “significantly over 18” who maintain their claim to be a child and are identified for potential criminal charges. However, these assurances do not go far enough when a child’s liberty and future are at stake. First, relying on the CPS’s prosecutorial discretion and the court’s ability to take a decision on age retrospectively is insufficient, when we know that individuals have already been wrongfully detained and imprisoned in adult settings. The risk of unlawful detention must be mitigated at the earliest possible point—before the charges proceed. Secondly, the proposal of an abbreviated age assessment is inadequate in the context of criminal law. This amendment would require a comprehensive Merton-compliant age assessment, which adheres to professional standards and best practice, and involves gathering information holistically. On Amendment 57, as the noble Baroness, Lady Lister, has said, we need to engage with all parties in respect of this matter. There are so many different interests here, not just local authorities and the key people within them but those who have expertise in this area. It is a difficult area, and we therefore need to bring together all that expertise to ensure that justice, through a full assessment, is preferable to the costs, both human and financial, of wrongful imprisonment or unlawful detention. The Government are right to focus on improving the robustness of the process. That includes looking at what the NAAB does, how it operates and whether it is up to the job of doing the things that we have been talking about in this debate. Facial age estimation technology is almost a case of saying, “We may have that possibility in the future”, but, as with anything—such as if we were trying to tackle new drugs or give new treatments to people—we should not do it without sound advice that it is in order and would produce the right results. The question must remain open on that matter, and I am sure the Minister will know that the exploration of this issue may have some way to travel. Amendment 27, in the name of my noble friend, is a fundamental safeguard. It would ensure that expert, child-focused social work assessment occurs before an individual is drawn into the criminal justice system as an adult. We know that this amendment has been supported by organisations across the children’s sector. It would ensure that the principle of protecting children from criminal proceedings is enshrined in law by requiring a high standard of age verification by appropriate experts before any prosecution can proceed. We support the intention of Amendment 57, also in this group. There are very serious matters here that I hope the Minister will address.