purpose of guidance

This guidance is designed to provide a framework for ethical practice for UNISON and BASW members in Scotland who are social work and social care practitioners and who are providing a service to the children of asylum seeker families or to unaccompanied asylum seeker children.

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principles

• Asylum seeker children living in Scotland have the same rights under Scottish legislation as any other child living in this country and the local authority has the same duty towards them.
  
  
• Social workers employed by local authorities to provide services to children and families have a statutory duty to protect the rights and interests of all children.
  
  
• The SSSC Codes of Practice for social workers and employers describe standards of professional conduct and the practice required of social service workers in Scotland; and the responsibilities of employers to support and regulate these standards. The Codes inform ethical practice with all service users including asylum seeker children and their families.
  
  
• BASW members are also bound by the BASW Code of Ethics.
  
  
• All policies and procedures established by the Scottish Executive and individual local authorities in respect of the welfare and protection of children apply equally to the children of asylum seekers and to unaccompanied asylum seeking children.

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the law

Children (Scotland) Act 1995

The Act states in its over-arching principles that the welfare of the child must be paramount and that the child's views should be taken into account in all matters affecting him or her. These principles are underpinned by the UN Convention on the Rights of the Child and apply to all children living in Scotland.

It is considered that because of their particular circumstances and vulnerabilities, asylum seeker children, whether unaccompanied or living with their families, can be considered ‘children in need' under Section 93 of the Children (Scotland) Act 1995.

This is defined as:

a) being "in need”, is to his being in need of care and attention because-

(i) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless there are provided for him, under or by virtue of this Part, services by a local authority;

(ii) his health or development is likely significantly to be impaired, or further impaired, unless such services are so provided;

(iii) he is disabled; or

(iv) he is affected adversely by the disability of any other person in his family;

These children are therefore entitled to all the rights and services accorded to ‘children in need' under the Act.

The Children (Scotland) Act 1995 s22 places a duty on local authorities to safeguard and promote the welfare of children in need and so far as is consistent with that duty to promote the upbringing of such children by their families by providing appropriate services including assistance in cash or in kind.

The Children (Scotland) Act 1995 s29 and the Regulation of Care (Scotland) Act 2001 s73 provide for throughcare support for children and young people.

However, the entitlement to support for the families of asylum seeker children under this legislation has been compromised in some circumstances by the Immigration and Asylum Act (IAA)1999, the Nationality, Immigration and Asylum Act (NIAA)2002, the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and the Immigration, Asylum and Nationality Act 2006.

It should be noted that the British Government has placed a reservation on the UN Convention on the Rights of the Child in relation to asylum and immigration matters. This does not affect the rights of asylum seeker children where these are enshrined in Scottish legislation except where these are deemed to be compromised by immigration legislation.

The Children's Commissioner in Scotland includes in her jurisdiction all children living in Scotland, regardless of their immigration status. Therefore where there are concerns about the rights of the children of asylum seekers or unaccompanied asylum seeker children, these can be referred to the Scottish Commissioner for Children and Young People. (SCCYP).

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