3. Part One: Regulations Supporting Section 11(7) of the Human Trafficking and Exploitation (Scotland) Act 2015
Part one of the consultation sought views on the provisions as set out in Section 11(7) of the Human Trafficking and Exploitation (Scotland) Act 2015. In terms of section 11(7) of the Act, Scottish Ministers have the power, by regulations, to make further provision about the ICTG, including in relation to a guardian's appointment and their functions.
The majority of questions for Part 1 included closed questions with "Yes/No/Don't Know" answers to be selected. Each question included a freeform text box for those who wished to expand their answers. Additionally, questions 3 and 4 included multiple part questions with freeform box questions for respondents to comment on.
The appointment of independent child trafficking guardians.
Question 1: We proposed appointing an organisation through an open and fair procurement/bid process to be responsible for recruiting guardians and assigning them cases.
A majority (92.5%) of respondents (37) agreed with the proposed method of appointing the service provider for the ICTG through an open and fair process, whilst 7.5% of responses (3) disagreed. A small number of responses (2) expressed that the current Scottish Guardianship Service, functioning since 2009, should be appointed to continue to provide the service on the new statutory basis. One individual respondent indicated some concern that a procurement exercise that resulted in the cheapest bidder winning could result in a poorer service.
Scottish Government Response: With significant support for the proposed approach for appointing guardians, we will proceed as planned with an open and fair procurement process for the new ICTG service.
Termination of the appointment.
Question 2: We proposed the appointment of an ICTG should be terminated using the normal procedures of the service provider.
There was general agreement from 75% (30) of respondents that the termination of an ICTG should be through the normal procedures of the appointed service provider. Some respondents elaborated further to specify that robust employment-related policies and procedures should be put in place by the provider and these should be in line with current employment law. Only 5% (2) of respondents disagreed with the proposal with no elaborated detail, and 20% (8) indicated that they didn't know.
Scottish Government Response: As there was general agreement that termination of an ICTG should be conducted through the procedures stipulated by the appointed service provider, this will be reflected in the development and procurement of the new ICTG service.
We agree that the appointed service provider's employment-related policies and procedures should be aligned with current employment law.
The conditions (including training, qualifications and experience) to be satisfied by a person to be eligible for appointment as an ICTG.
Question 3a: We suggested that an ICTG should, as a minimum requirement, have OISC (Office of the Immigration Services Commissioner) level 2 and a relevant professional qualification to SCQF level 8 (HND) in working with children.
There was general agreement from 77.5% (31) respondents, with 12.5% (5) respondents in disagreement and 10% (4) respondents indicating they didn't know. Those who disagreed thought that the OISC Level 2 qualification should not be a requirement at outset of employment, but something that could be worked towards in post. There was concern that experienced field workers who have significant experience of multiagency working and close working with victims of trafficking could be discounted from recruitment due to lack of specific qualifications. Demonstration of equivalent knowledge by other means should be used at the recruitment stage.
Training in advocacy skills and adherence to standards and a code of practice around advocacy similar to that published by Scottish Independent Advocacy Alliance was highlighted as beneficial to the ICTG role, as was having specific knowledge of functions relating to asylum and refugee protection and an understanding of trauma.
Scottish Government Response: While there was general agreement on the suggested minimum qualification of OISC level 2, we accept that there is merit in exploring the feasibility of the OISC level 2 qualification being worked towards while in post and as such, we will explore this when developing and procuring the new ICTG service.
Specific response to advocacy skills and standards will be addressed in the response to question 5.
Question 3b: We suggested that an ICTG should have an understanding and experience of the following:
- Child protection and looked after children guidance and procedures;
- The impact of trauma on children/young people;
- Communicating with children/young people through interpreters;
- Knowledge of UK and Scottish legislation on immigration, asylum, human rights, data protection, children and young people and agency duties to support them;
- Knowledge of key policies and procedures relating to above legislation;
- Awareness of age assessment guidance and procedures;
- Understanding of the distinct and cultural needs of separated children;
- Understanding of data protection and information sharing legislation and guidance;
- Experience of working with children/young people at risk; and
- Knowledge of child abuse and exploitation, trafficking indicators and the National Referral Mechanism or other relevant trafficking identification systems.
The majority of respondents (38) agreed that the above additional experience should be required or developed via training. Only one person (2.5%) advised that they didn't agree and another person (2.5%) indicated that they didn't know. One key stakeholder response suggested that a working knowledge of child protection procedures should be required rather than just an understanding. Additional suggestions included an accreditation through a regulatory body and experience of multiagency partnership working.
Scottish Government Response: There is overall support for the proposed range of additional experience that is desirable for prospective guardians. Responses indicated agreement that knowledge and experience can be developed through additional training in post. An additional suggestion of working knowledge of child protection procedures will be considered and reflected in the development of the specification for the role.
Suggestion has been made that it would be desirable for guardians to be accredited through a regulatory body. This will be addressed in the response to Question 3c.
Question 3c: To ensure the suitability and accountability of an ICTG, we proposed they must undergo a full Disclosure up to, and including, Protecting Vulnerable Groups (PVG) scheme membership and also register with the OISC.
All 39 respondents who answered this question agreed with this proposal and there was one person who did not answer the question. It was suggested in a small number of key stakeholder responses that an ICTG should be registered with the Scottish Social Services Council (SSSC).
Scottish Government Response: There is almost universal agreement that guardians should undergo full Disclosure checks including PVG scheme membership and this will be reflected in the specification of the role.
There is suggestion that the guardians should be registered with SSSC for additional accountability. We have explored this option and have deemed that this specific request is not feasible. Currently the SSSC registers professionals who work directly in the social care profession. The guardian, with its proposed role and functions, does not fall clearly into this category. There is clear benefit in a Code of Conduct for the guardians, in line with those already adhered to by members of organisations such as SSSC. We will explore how this can be incorporated into the specification for the role.
Payments to be made to, or in respect of to the role of, an independent child trafficking guardian
Question 4: We proposed that the service provider should set the salary and the policy for any additional payments to be made to the ICTG.
A majority of 82.5% (33) respondents agreed with that proposal, but said that salary should remain competitive and reflect the importance of the role. It was reflected in responses that Scottish Government should ensure that funding for the organisation is cognisant of this when setting funding levels. Where there was disagreement with the proposal, (15%  of respondents gave a negative response), it was suggested that this was due to concerns that the salary might be too low if a minimum was not set by Scottish Government. Only 2.5% (1) respondent did not provide a view.
Scottish Government Response: The specification for the new ICTG service provider will reflect that policy on additional payments will primarily be the responsibility of the service provider in line with the 82.5% of respondents who agreed with that proposal. The SG will consider levels of funding and measures to ensure ICTG salaries remain competitive and reflect the importance of the role. We will work closely with the service provider to ensure that salaries are aligned with Scottish Government fair work principles.
The functions of an independent child trafficking guardian
Question 5: We proposed that an ICTG should have responsibility for the following functions:
- Contribute to the safeguarding of the child or young person and specifically contribute to the prevention of (re)trafficking;
- Promote the best interests of the child or young person;
- Where the immigration status of a child or young person is not established, advise them as they progress through the immigration process, including on pathway planning for both positive and negative decisions on their status;
- Have regard to the duties of the public bodies who have statutory duties relating to these children and young people, specifically but not limited to local authorities, the Home Office and Police Scotland;
- Act in accordance with and assist local authorities as part of their plan for the support of the child or young person by:
- Supporting them in dealing with the consequences of having been trafficked;
- Supporting them through any appropriate referral mechanism for identification of trafficking, such as the National Referral Mechanism where they have been entered into by a First Responder;
- Supporting them through any criminal proceedings against their traffickers, including understanding the process and managing expectations around prosecution;
- Supporting them to access Criminal Injuries Compensation through the Criminal Injuries Compensation Authority (CICA) if required;
- Supporting them towards independence to achieve the best outcomes and destinations for these young people; and
- Supporting them in being active in the development of their support and pathway planning.
- Provide a confidential service according to data protection guidance and information sharing protocols; and
- When necessary, contribute to an age assessment in line with the Age Assessment Practice Guidance for Scotland.
A majority of 95% of respondents (38) agreed with the above functions of the ICTG, with some additional suggestions and caveats as highlighted below. Only one person (2.5%) advised that they didn't agree and another person (2.5%) indicated that they didn't know. Additional functions suggested were:
- Advocacy: There should be a specific advocacy function for the ICTG, promoting the best interest of the young person. They should be present at all key planning and decision-making processes and be responsible for ensuring the young person understands what is happening to them and why. It is also important to ensure that the young person's voice is heard and encourage their meaningful participation in decisions. Special mention was made in a number of responses relating to support being provided through the age assessment processes. It was highlighted how important it is that the young person understands what is happening to them to safeguard them against further exploitation and how valuable the ICTG's role is in assisting with this.
- Asylum: The consultation made provision for the guardian to provide immigration advice, however it was emphasised that there is a need for the guardian to provide support through the asylum process.
- Assistance: The ICTG should assist the young person in obtaining legal advice and representation, particularly if criminal action has been taken against a young person who has been exploited through forced criminality.
- Understanding of rights: The ICTG should have an understanding of a young person's right to support as a looked after child and should raise concerns with their local authority if they feel that support is inadequate.
- Support: The guardian should provide support for young people who are going through an age assessment process.
Scottish Government Response: There was overwhelming support for the suggested functions and as such these will be incorporated in the development and procurement of the new ICTG service.
Specifically on advocacy, we agree that aspects of advocacy apply to the role of the ICTG, as guardians will ensure that the child's voice is heard in any decisions made about them. However, we do not want to unduly restrict the functions of the guardian by limiting them only to advocacy as this is just one part of their role. In relation to standards and codes of practice concerning advocacy, as raised in question 3a, we will consider this as part of our development of a code of practice which relates to all of the functions of the ICTG.
On the four other additional functions, we broadly accept these and will take them into consideration when developing and procuring the new ICTG service.
Question 6: We asked what records should be kept in regards to the ICTG, e.g. records of employment and training.
A total of 28 responses were received for this question, which generally indicated that the service provider should keep relevant records in line with organisational policies and procedures which will be informed by relevant employment law, data protection legislation and GDPR.
Scottish Government Response: The specification for the new ICTG service provider will reflect that they will be responsible for keeping all records relevant to the recruitment, employment and training of ICTGs in line with employment law, data protection and GDPR.
Vulnerable young people over 18
Question 7: We suggested that a looked after young person after the age of 18, in line with existing Continuing Care and Aftercare provisions, could continue to receive support from an ICTG.
All (40) respondents supported the proposal that an ICTG should continue to provide support for young people who turn 18 years of age prior to receiving a decision on their trafficking and/or asylum case. This support was considered essential to reduce the risk of re-trafficking.
Scottish Government Response: The specification for the new ICTG service provider and new regulations will reflect the strong support from 100% of respondents that an ICTG should continue to support young people after they turn 18. This is in line with their best interests and principles of Continuing Care and Aftercare provisions that allow a gradual transition from care into more independent supported living and to reduce the risk of young people being re-trafficked.