Child trafficking is the practice of transporting children into, within, and out of the UK for the purposes of exploitation. This exploitation can often involve criminal activity, such as the cultivation of drugs, theft, fraud, or sex work.
If a child is identified by police during operations, the local authority should be notified immediately so that a child protection plan can be put into place. The child should also be referred into the National Referral Mechanism.
Many children trafficked into and out of the UK have no identity documents or are using false documents. This means determining the child’s exact age can be very difficult. It is important to remember that many of these children, who may have been sexually, physically or emotionally abused, could be suffering from a range of mental health issues, such as post-traumatic stress disorder (PTSD), and are highly vulnerable.
In the case of children where there are reasonable grounds to believe that they are a victim of trafficking, they should be presumed to be under the age of 18. The children’s services department of the local authority will then be responsible for conducting an age assessment if they decide that one is necessary.
In the criminal justice system, a child who is ‘deemed’ to be an adult:
- will not be entitled to the support of an appropriate adult in criminal proceedings,
- will be unable to apply for special measures in court proceedings,
- will be detained and sentenced as an adult, and
- will have no access to age appropriate services.
A number of young refugees and migrants find themselves in the criminal justice system. In other circumstances, children and young people may be accused of committing immigration offences, such as using a false passport, or will enter the criminal justice system in some other way and risk deportation as a result. Age is a key issue in these cases.
There is no standardised process for assessing age within criminal proceedings.
The Crown Prosecution Service (CPS) guidance states that if the victim states they are a child, they should be viewed as such until their age can be verified by identification, a court determination, or an independent age assessment carried out by the local authority.
Often children whose ages are in dispute will first come to the attention of the police, or the youth offending team. It is important that all professionals operating within the criminal justice system are alert to issues facing migrant children, including age and trafficking, and are aware of the appropriate steps to take upon identifying such a case.
The CPS makes clear that child trafficking is first and foremost a child protection issue and that the use of a child in a criminal enterprise is a form of child abuse. However, many children are not identified as potential victims of trafficking and are subsequently charged with criminal offences.
Where there is a credible suspicion that the child or young person might have been trafficked and exploited through criminal activity, then that would generally provide a defence of duress. Clear evidence of trafficking should result in the young person not being prosecuted, and less clear evidence should at least prompt further enquiries.
Prosecutors should be alert to the circumstances of the child’s arrest and be pro-active in causing enquiries to be made. If new information or evidence supports the fact that the child or young person has been trafficked and has committed the offence whilst in a coerced situation, then there is a strong public interest to stop the prosecution.
The Association of Chief Police Officers guidance states that ‘no decision to progress charges against such individuals should be made until all relevant assessments have been undertaken’, and that ‘where official records, or other reliable evidence, are not available to confirm age, a Merton compliant age assessment should be carried out by the local authority’.
However, some children whose age is in dispute may still end up in court without having had a lawful assessment undertaken. Where anyone is brought before any court and it appears that they are a child or young person, the court must ‘make due inquiry’ about the defendant’s age take evidence. The guidance states that this evidence must be much more than a superficial observation of the way a child looks. The court has the power to presume or declare age – and any presumed or declared age is then deemed to be the true age. Where there is a dispute as to age it is better for the court to adjourn for more detailed inquiries if there is any doubt.
Where a child or young person who is a victim of trafficking is being prosecuted for illegal activities or an immigration offence, their trafficking should be raised by the criminal defence solicitor representing them. However, not all criminal solicitors are aware of trafficking and the immigration law implications, and many advise clients to plead guilty. Where this has occurred and a child or young person has been convicted, their trafficking may only be noticed much later, possibly in a young offenders’ institution or prison.
If any practitioner has trafficking concerns at this point, they should always say something: legal advice from a criminal solicitor and an immigration solicitor should be sought as soon as possible. It may be possible to pursue an out-of-time appeal against the conviction. A further avenue is the Criminal Cases Review Commission, which can look into a criminal case when someone thinks they have been wrongly convicted.
