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Brexit will happen, in one way or another, currently scheduled for March 2019. This paper attempts to pull together what is feared, what is known and what the opportunities might be for services serving children and young people in England. Much of this paper could equally apply to Scotland, Wales and Northern Ireland but there are also some differences.

The EU has enacted over 80 legal instruments that confer direct entitlement for children in the UK covering issues such as migration, asylum, child protection, health and safety, paediatric medicine, access to social and economic rights and cross-border family breakdown. In one way or another Brexit is likely to have an impact on all of these.

Key Issues

Impact of Brexit on the immigration status of children:

  • In 2016, 679,000 European national children under the age of 18 resided in the UK. A small additional number of non-European children also live in the UK under rights provided for by EU law. A significant proportion of these children live here long-term: around 258,000 (38%) were born in the UK. Children living in the UK under EU law are often well-integrated, attending school, making friends and speaking English. Some children have no memories of life in another country, lack relationships with family or friends abroad, and/or have no meaningful connection with their ‘home country’.
  • There is no guarantee that children’s current rights under EU law will be unaffected by Brexit. Indeed, Brexit will remove any children’s rights safeguards currently offered by the EU Charter of Fundamental Rights. The risk is that following Brexit, the government could use delegated powers and statutory instruments to amend laws without facing detailed parliamentary scrutiny – the risk is that children’s rights protections currently enshrined in EU law could be eroded through the ‘back door’.
  • Some children will have acquired a right of permanent residence under EU law or be on the way to acquiring such a right. To date, they have been able to exercise those rights with minimal formality, and there has been no requirement to apply for a permanent residence card. Thus, some of those children (and/or their families) may find it difficult to prove their length of lawful residence so as to demonstrate their entitlement to permanent residence (PR).
  • The vast majority of children in the UK who are nationals of other EU Member States will not have been granted leave to enter or remain (in particular, they will not have been granted indefinite leave to remain) because they did not need leave if they were exercising EU rights.
  • The status of ongoing cases involving children is unclear. The rules governing the enforceability of any case decided after 29th March 2019 will cease to have effect, and the risk of parallel cases taken in multiple jurisdictions is a distinct possibility.

The Potential Impact of Brexit on the Immigration Status of Children / Legal Opinion

The potential impact of Brexit on Children Looked After:

  • There are currently 70,440 looked after children in England, 5,662 in Wales, 15,317 in Scotland and 2,983 in Northern Ireland. Whilst we have no clear data on the nationalities of children in care, there may be many thousands who are nationals of other EU countries. These children currently face insecurity when they become adults so it is critical that they are given clear information and legal assistance to secure long-term residence and associated entitlement. Similarly, Brexit will affect British children who are currently being looked after by relatives in another EU Member state. This option may no longer be viable if there is uncertainty that children or the families cannot remain in that EU state following Brexit.

The safety and security of children haven’t had the attention they deserve and need in the Brexit debate thus far. Yet they’ll be profoundly affected if our departure leads to our ejection from the EU-wide infrastructure that protects and safeguards children’s wellbeing.

Our future participation in institutions and mechanisms such as Europol, Eurojust and the European Asset Warrant, in the Schengen Information System (SIS11), which provides alerts on children at risk of abduction or going missing, and the application of the Brussels 11 Regulation in relation to family law, look deeply uncertain.

Mechanisms such as Europol and Eurojust have been designed and set up to support cross-national coordination and collaboration, and they play a key role in combatting crimes against children.

Between 2010 and 2016, the use of the European Arrest Warrant resulted in 110 arrests for child sexual offences in the UK. In the same period, 831 requests were made by EU countries to the UK in relation to child sexual offences, and from these requests, 108 arrests were made in the UK.

The ability to carry out checks on those who may care for children is also important, including those who may be fostering or adopting children. Potential carers (many of whom are non-UK nationals) have to undergo rigorous criminal, medical and social services background checks in the UK, including checks from another country if the applicant has lived abroad. Record checks are also required as part of care proceedings where it may be possible to place a child in care outside the UK.

Ongoing access to the centralised criminal records information system (ECRIS) established by the EU is also important to ensure that potential employers and other public services can conduct rigorous criminal records checks prior to appointing someone to work with children.

Over a quarter of workers from other EU Member States work in the public administration, education and health sectors in this country.  Specifically, almost 10% of NHS doctors and just over 7% of all nurses in England are from other EU Member States.

A substantial majority of these work directly with children. We need to be able to check they are safe to do so.

60,000 children were recorded as missing in the UK in 2015/16, yet EU investment in the EU-wide missing children’s hotline, as well as core funding for missing children’s charities and rescue alerts, are in real danger of being discontinued.

Safeguarding Children after Brexit

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