Commentary on Sections Section 21: Independent guardian
The purpose of section 21 is to provide for an Independent Guardian to be appointed for a child who is a victim, or a potential victim, of human trafficking, or who is determined to be a separated child.
Subsection (1) conveys a duty on the Regional Health and Social Care Board (HSCB) to make arrangements for the provision of an Independent Guardian to assist, represent and support a child to whom the section applies.
Under subsection (2) a child will become eligible for an Independent Guardian as soon as a referral has been made, or is about to be made, to the National Referral Mechanism. This ensures that the Independent Guardian will be appointed at the earliest opportunity, provided there is no-one else available to effectively exercise parental responsibility over them (this complies with Article 10(4)(a) of the European Convention on Action against Trafficking in Human Beings which states that a guardian should be appointed “as soon as an unaccompanied child is identified as a victim”). Eligibility for an Independent Guardian under subsection (2) does not end until any judicial review proceedings against a negative conclusive determination are completed.
Subsection (3) provides that a child also becomes eligible for an Independent Guardian if it appears to the HSCB that they are a ‘separated child’, as defined in subsection (11). The HSCB has developed guidance in relation to separated children in conjunction with other organisations, including the Health and Social Care Trusts, Border Force, PSNI, UKVI and VOYPIC. The current document, ‘Pathway for Safeguarding and Promoting the Welfare of Separated / Unaccompanied Children’, which is under review, is intended to assist the HSCB staff in their determination of whether there is reason to believe that a child is ‘separated’.
Subsection (4) outlines the arrangements to be made by the HSCB, as referred to in subsection (1). The arrangements will be made with a registered charity, which will appoint an Independent Guardian to each eligible child. Guardians must be employees of that charity, and meet the qualification and training requirements set out in Regulations under subsection (5).
The Independent Guardian will only be appointed where there is no-one available to effectively exercise parental responsibility for the child. This does not include parental responsibility conferred by a Care Order, to ensure the Independent Guardian can be in place if necessary when an HSC Trust holds parental responsibility for the child. The role of the Independent Guardian will continue as long as the child’s individual circumstances require it. Termination of the role takes place when the child is no longer one to whom the section applies, that is:
	where it has been confirmed they are not a victim of human trafficking and, if appropriate, any judicial review of this decision is completed;
	the child is no longer a separated child;
	where the person(s) who has parental responsibility for them becomes able to exercise it;
	when they turn 18 (or, via subsection (10), when they turn 21 subject to the consent of the young person for the arrangement to continue when they enter adulthood); and
	where the HSCB, after consulting with the Independent Guardian, believes the Independent Guardian is no longer needed because long-term arrangements have been made for the child.
Subsection (5) requires the Department to make regulations to outline the training and qualifications which an Independent Guardian must hold, and the support and supervision which must be in place for them. These regulations will be subject to negative resolution.
Subsection (6) requires the Independent Guardian to always act in the best interests of the child.
Subsection (7) contains the specific functions of the Independent Guardian , which are crafted to ensure that duplication does not occur between organisations or individuals who have existing statutory duties in relation to the child, for example the Guardian Ad Litem or a Health and Social Care Trust. Among other functions, subsection (7)(b)(ii) provides for representations to be made on behalf of the child to any body or person responsible for making decisions in relation to the child, including any court or tribunal with whom the child engages. The role allows the Independent Guardian to obtain legal advice, assistance and representation on behalf of the child and, where necessary, appoint and instruct the child’s legal representatives. The Independent Guardian will provide a physical presence with the child where necessary, and provide a link between the child and any services they receive.
Subsection (8) requires those providing services to the child, or making administrative decisions with respect to the child, to pay due regard to the functions of the Independent Guardian and, where legally permitted, provide them with information relating to the child. Information could include any physical documents or any electronically held information required to enable the Independent Guardian to carry out their functions effectively.
Subsection (9) allows the Department to add to the functions of the Independent Guardian by means of regulations. These regulations will be subject to affirmative resolution.
Subsection (10) allows for the Independent Guardian role to continue for a young person between the ages of 18-21 provided they consent to this.
Subsection (11) provides the necessary definitions for this section. The definition of “administrative decision” is required to ensure subsection (8) does not impact on the independence of the judiciary. The definition of parental responsibility ensures that an Independent Guardian can be put in place for a child who is subject to a Care Order. The definition for a separated child ensures that an Independent Guardian can be appointed for a child who has come to Northern Ireland and has been separated from both parents or from their legal or customary care givers, and may be at risk of harm because of that separation. This harm could include, but is not limited to, a risk of harm from abuse, exploitation or neglect. The definition also ensures those children who are in Northern Ireland in the company of adults who are not their parents or caregiver and are at no risk of harm, such as those on a school trip, do not come within scope of the section unnecessarily.
Subsection (12) clarifies that a reference to a Guardian in other statutory provisions is not a reference to the Independent Guardian from this section. This ensures there is no confusion over the roles of other statutory guardians due to this provision.