Child trafficking victims and legal guardians: Exploring the fulfilment of the EU trafficking directive in the context of the UK modern Slavery Act 2015 – Best practice or not fit for purpose?
| Date | 01 June 2019 |
| DOI | 10.1177/2032284419836510 |
| Published date | 01 June 2019 |
| Author | Amy Weatherburn,Yvonne Eloise Mellon |
| Subject Matter | Articles |
Article
Child trafficking victims
and legal guardians:
Exploring the fulfilment
of the EU trafficking
directive in the context
of the UK modern Slavery
Act 2015 – Best practice
or not fit for purpose?
Amy Weatherburn
Vrije Universiteit Brussel, Belgium
Yvonne Eloise Mellon
University of Liverpool, UK
Abstract
Child victims of trafficking are recognized as particularly vulnerable victims, who require additional
protection and support and a more rigorous legal framework. The regional anti-trafficking
instruments
1
explicitly enforce the importance of protecting child trafficking victims, requiring
Member States to ‘appoint a guardian or a representative for a child victim of trafficking in human
beings from the moment the child is identified by the authorities’.
2
The problem of child trafficking
Corresponding author:
Amy Weatherburn, Vrije Universiteit Brussel, Pleinlaan 2, Brussels 1050, Belgium.
E-mail: amy.weatherburn@vub.be
1. See also Article 10(4), Council of Europe Convention on Action against Trafficking in Human Beings (2005), states that
as soon as an unaccompanied child is identified as a victim, Member States must ‘provide for representation of the child
by a legal guardian, organisation or authority which shall act in the best interests of that child’; Recital, Directive 2011/
36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human
beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA states that ‘Member States
should ensure that specific assistance, support and protective measures are available to child victims.’; EUROSTAT,
Trafficking in Human Beings, 2015 edition, p. 25.
2. Article 14(2), Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and
combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/
New Journal of European Criminal Law
2019, Vol. 10(2) 107–127
ªThe Author(s) 2019
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DOI: 10.1177/2032284419836510
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and exploitation has received increased attention in England and Wales in recent years, with
record number of minors referred to the National Referral Mechanism in 2016. Running parallel to
this are the apparent failings of the domestic social care system to safeguard not only trafficked
children but also those who are seeking asylum or unaccompanied. Over a quarter of officially
identified trafficked children were found to have gone missing between 2014 and 2015.
3
Across the
United Kingdom when transposing the European Union (EU) legal framework, the Government
maintained that existing provisions by local authorities under their statutory child protection
obligations, including social workers and independent reviewing officers, fulfilled the guardian
requirements in the Directive. The Modern Slavery Act 2015 has placed significant emphasis on
reforming the approach to the protection for child trafficking victims, culminating in the intro-
duction a specific statutory provision establishing Independent Child Trafficking Advocates
(ICTAs).
4
Such a scheme is the first guardian of its kind, designed specifically for child trafficking
victims in Europe. Taking into account the recent evaluation of pilot schemes,
5
and the slight
variation in approach taken in the devolved jurisdictions of the United Kingdom,
6
this article will
consider the extent to which the protection of child trafficking victims under the jurisdiction of the
Modern Slavery Act 2015 is sufficient to fulfil the legal positive obligations imposed by EU Law. This
article will demonstrate that as it stands the Modern Slavery Act 2015 fulfils the obligations of the
EU Trafficking Directive in relation to the protection of child trafficking victims. However, its fully
effective enforcement requires further efforts in policy to ensure that these legal obligations are
implemented in practice.
Keywords
Child trafficking, EU Law, guardianship, Modern Slavery Act 2015, positive obligations
Introduction
Child trafficking involves the movement of children for the purpose of exploitation, including
sexual exploitation, labour exploitation or the removal of organs. The particular vulnerability of
children to exploitation requires additional protection and support when a child is identified as a
potential victim of child trafficking. Regional anti-trafficking instruments
7
reflect this by enforcing
JHA. See also Article 16(3) which requires Member States to ‘take the necessary measures to ensure that, where
appropriate, a guardian is appointed to unaccompanied child victims of trafficking in human beings’.
3. End Child Prostitution and Trafficking (ECPAT) UK, Missing Children, Heading Back to Harm – A study on trafficked
and unaccompanied children going missing from care in the UK (2016) 10
4. Section 48, Modern Slavery Act 2015.
5. Home office, Evaluation of Independent Child Trafficking Advocates Trial: Final Report, 17 December 2015.
6. Section 21 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland)
2015 and section 11 Human Trafficking and Exploitation (Scotland) Act 2015 provide for an independent legal guardian
for trafficked and separated children.
7. See also: Article 10(4), Council of Europe Convention on Action against Trafficking in Human Beings (2005), states
that as soon as an unaccompanied child is identified as a victim, Member States must ‘provide for representation of the
child by a legal guardian, organisation or authority which shall act in the best interests of that child’; Recital, Directive
2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in
human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA states that ‘Member
States should ensure that specific assistance, support and protective measures are available to child victims.’
108 New Journal of European Criminal Law 10(2)
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