Hosted by www.ijjo.org

Chapter 8 | The Need for a Legal Guardian
This places legal representatives in a difficult position
as their primary responsibility is to provide
the unaccompanied or separated children with
advice about their asylum application and to provide
representation at any subsequent appeal. To
do this the representatives have to take instructions
directly from the unaccompanied or separated
child, whereas in other jurisdictions they would be
able to work through the child’s litigation friend 12
or children’s guardian. 13 There is also a common
misapprehension about the role of social services
when they assume responsibility for unaccompanied
or separated children. Even where they accommodate
an unaccompanied or separated child under
section 20 of the Children Act 1989 social services
do not acquire parental responsibility for the child. 14
They merely have the power to do what is reasonable
to safeguard and promote their welfare. 15
This means that they can assist an unaccompanied
or separated child to instruct a legal representative
but they cannot give instructions on the child’s
behalf. Foster carers do not acquire parental responsibility
or the right to act on the child’s behalf in
legal proceedings either.
Whilst Social Services have a higher level of
responsibility than the Refugee Council’s Children’s
Panel, they do not have parental responsibility for
the vast majority of asylum-seeking children they
look after. 16 There remains, therefore, a disparity 17
with other children in the U.K. 18
Therefore, lawyers who are representing unaccompanied
or separated children in the Asylum and
Immigration Tribunal 19 or subsequently in the
High Court or the Court of Appeal, are doing so
despite the fact that these children may not have the
mental or legal capacity or indeed the intellectual
maturity to give them full instructions and have
no adults with the legal capacity to give instructions
on their behalf. Many legal representatives are concerned
about this potential conflict of interest: they
are forced to take decisions on the child’s behalf
relating to welfare and legal entitlements, and at
same time they are required to act on the basis of
the child’s instructions. Many lawyers believe this
dual role distracts them from their primary duty
to promote the child’s legal interests.
“My role is that of an immigration lawyer. It’s not
a caring, sharing relationship. My involvement is
not enough to protect that child. They need someone
who is responsible for their interests as a child.
They are extremely vulnerable children.” 20
8.2 Government Measures
on Legal Representation
The U.K. was obliged under Article 19 of the
EU Council Directive laying down minimum
standards for the reception of asylum
seekers 21 to “take measures by 6 th February 2005 to
ensure the necessary representation of unaccompanied
minors by legal guardianship or, where necessary,
representation by a organisation which is responsible
for the care and well-being of minors, or by any
other appropriate representation.” 22
At one time it appeared that the U.K. Government
was intending to take steps to create a form
of legal guardianship which would respond to the
needs of unaccompanied or separated children. In
its Green Paper Every Child Matters 23 it stated that
“some of the children in greatest need [were] unaccompanied
asylum seekers [who] may have left their
homes and communities in violent and traumatic
circumstances and [suffer] poor health.” Senior
managers within the Immigration and Nationality
Directorate also recognised the need for unaccompanied
or separated children to have a consistent
Hosted by www.ijjo.org
91