Children from Abroad, including Victims of Modern Slavery, Trafficking and Exploitation

Evidence shows that unaccompanied migrant children or those accompanied by someone who is not their parent are particularly vulnerable. Immigration legislation impacts significantly on work to safeguard and promote the welfare of children and young people from abroad.

It is important to note that regulations and legislation in this area of work are complex and subject to constant change through legal challenge. This guidance, therefore, intends to provide an overview of the additional issues faced by families and/or children set within the framework of immigration law. All practitioners need to be aware of this context in their contact with such families and/or children. Legal advice about individual cases may be required.

Additional issues are likely to arise in relation to this cohort of children, whether or not they are found to be, or suspected of being, victims of trafficking or modern slavery. Additional considerations in all cases are likely to include issues such as immigration status, the need for interpreters and specialist legal advice. Some of these children may have been persecuted and have witnessed or been subject to horrific acts of violence. Assessing the needs of these children is only possible if their legal status, background experiences and culture are understood, including the culture shock of arrival in this country.

Unaccompanied, internally displaced children may come to the UK seeking asylum or may be here to attend school or join their family.  An unaccompanied child may be the subject of a Private Fostering arrangement, and subsequently exploited or abandoned when the arrangement fails (see Children Living Away from Home Procedure.    

Some children may say they are unaccompanied when claiming asylum - a trafficker may have told the child that in doing so they will be granted permission to stay in the UK and be entitled to claim welfare benefits.

A significant number of children who are referred to local authority care as trafficked children or unaccompanied asylum seeking children (UASC), often then go missing and many go missing within one week. It is thought that they are then trafficked internally, within the UK, or out of the UK to other European countries.

Whenever an unaccompanied child presents in a local authority area, all agencies dealing with the child should be alert to the possibility that the child may have been a victim of modern slavery, including the possibility that the child has been trafficked, and ensure that all relevant information about the child's circumstances is communicated to Children's Social Care. Information should be shared with consent where appropriate and where possible, but information can be shared without consent if the professional judgement is that there is good reason to do so, such as where their safety may be at risk.

If there are concerns that a child is a victim of trafficking, the practitioners will need to inform the National Referral Mechanism, which is a framework for identifying victims of human trafficking or modern slavery and ensuring that they receive the appropriate support. The child's details should be provided using the forms available on the National Referral Mechanism Digital Referral System: Report Modern Slavery.

In England and Wales, if someone is found not to be a victim of trafficking, the Competent Authority must go on to consider whether they are the victim of another form of modern slavery, which includes slavery, servitude and forced or compulsory labour.

This chapter should be read in conjunction with the following government guidance:

Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery: Statutory Guidance for Local Authorities, November 2017 - This guidance sets out the steps local authorities should take to plan for the provision of support for looked after children who are unaccompanied asylum seeking children, unaccompanied migrant children or child victims of modern slavery including trafficking. Elements of this guidance will also be relevant for the care of looked after UK nationals who may also be child victims of modern slavery.

Safeguarding Children who May Have Been Trafficked (Home Office, 2011) - non-statutory government good practice guidance provides the detailed guidance on steps that local authorities should take, in partnership with other agencies, to identify and protect child victims of modern slavery, including trafficking, before they become looked after.

The first contact with the child and carers is crucial to the engagement with the family and the promotion of trust which underpins the future support, advice and services.

Such children should be assessed as a matter of urgency as they may be very geographically mobile and their vulnerabilities may be greater. All agencies should enable the child to be quickly linked into universal services, which can begin to address educational and health needs.

The assessment has to address not only the barriers which arise from cultural, linguistic and religious differences, but also the particular sensitivities which come from the experiences of many such children and families.

Particular sensitivities which may be present include:

• Concerns around immigration status;
• Fear of repatriation;
• Anxiety raised by yet another professional asking similar question to ones previously asked;
• Lack of understanding of the separate role of Children's Social Care, and that it is not an extension of the police;
• Lack of understanding of why an assessment needs to be carried out;
• Previous experience of being asked questions under threat or torture, or seeing that happen to someone else;
• Past trauma - past regime/experiences can impact upon the child's mental and physical health. This experience can make concerns from the Authorities about minor injury or poor living conditions seem trivial and this mismatch may add to the fear and uncertainty;
• The journey itself as well as the previous living situation may have been the source of trauma;
• The shock of arrival - the alien culture, system and language can cause shock and uncertainty, and can affect mood, behaviour and presentation;
• The child may have also been subject to frequent changes of address or location within the UK and may be living with the fear of sudden further unexplained moves.

Agencies should ensure that the interpreter shares a common language with the child, is professionally trained and has been screened through a DBS check. It is vital that the services of an interpreter are employed in the child's first language and that care is taken to ensure that the interpreter knows the correct dialect.

1.2.1 Age Assessments

The assessment of age is a complex task, which often relies on professional judgement and discretion. Many societies do not place a high level of importance upon age and it may also be calculated in different ways. Some young people may genuinely not know their age and this can be misread as lack of co-operation. Levels of competence in some areas or tasks may exceed or fall short of our expectations of a child of the same age in this country.

Age assessments should only be carried out where there is significant reason to doubt that the claimant is a child. Age assessments should not be a routine part of a local authority's assessment of unaccompanied or trafficked children. Care of Unaccompanied Migrant Children and Child Victims of Modern Slavery - Statutory Guidance for Local Authorities (November 2017) provides that where the age of a person is uncertain and there are reasonable grounds to believe that they are under 18, they will be treated as a child in order to receive immediate access to assistance, support and protection in accordance with section 51 of the Modern Slavery Act 2015. An age assessment should only be carried out if it is appropriate to do so, and should not cause a delay in referring into the NRM. Where age assessments are conducted, they must be compliant with case law of Merton and subsequent judgments. 

ADCS Age Assessment Guidance provides good practice guidance to help frontline social workers conduct age assessments of unaccompanied children seeking asylum in the UK. It contains practical advice on preparing for, and conducting, age assessments, as well as addressing related issues such as trafficking, trauma and memory, and legislation and case law.

It forms part of a suite of publications including:

• ADCS and Home Office Age Assessment Joint Working Guidance;
• Information Sharing Proforma;
• Age Assessment Information Sharing for Unaccompanied Asylum Seeking Children: Explanation and Guidance.

The ADCS and Home Office Age Assessment Joint Working Guidance was updated in March 2023 to reflect the launch of the National Age Assessment Board, which began a phased rollout on 31 March 2023.  The Board brings together a hub of specialist social workers, who will support local authorities and the Home Office to resolve age disputes by conducting age assessments. The Board will carry out full Merton-compliant age assessments upon referral from local authorities or on behalf of the Home Office, and will also use scientific methods to assess age once these are brought in.

The Board will set the national standard for age assessments, acting as a centralised team for local authorities and providing expert advice and training to improve the consistency and quality of how age assessments are carried out.

See also: Age Assessment Process and Joint Working: Caseworker Guidance - immigration staff guidance on how the Home Office and local authorities in England assess age disputes from applicants claiming to be a child.

1.2.2 Immigration Issues

The immigration status of a child and his/her family has implications for the statutory responsibilities towards the family. It governs what help, if any, can be provided to the family and how help can be offered to the child.

All children, irrespective of their immigration status, are entitled to protection under the law. Local authorities need to ensure that child victims receive legal advice and support.

Where families are subject to immigration legislation which precludes support to the family, many will disappear into the community and wait until benefits can be awarded to them. During this interim period the children may suffer particular hardship - e.g. live in overcrowded and unsuitable conditions with no access to health or educational services. They are particularly vulnerable to exploitation because of their circumstances.

Children who disappear, where there are concerns about the child's welfare, should be considered to be missing and Children and Families who go Missing Procedure should be followed.

It may be appropriate for unaccompanied children to be informed of the availability of the Assisted Voluntary Return Scheme.

Asylum Process – Possible Outcomes

There are four main possible outcomes of the asylum process for an unaccompanied child, which will determine what the long term solution might be. These are outlined below including the impact they may have on care and pathway planning:

• Granted refugee status - i.e. granted asylum, with limited leave to remain for five years, after which time they can normally apply for settlement - i.e. indefinite leave to remain.
• Refused asylum but granted humanitarian protection, with limited leave to remain for five years, after which time they can normally apply for settlement (i.e. indefinite leave to remain). This is most commonly granted where the person is at risk of a form of 'ill treatment' in their country of origin but which does not meet the criteria of the Refugee Convention.
  
  As it is very likely that those granted refugee status or humanitarian protection will qualify for indefinite leave to remain, their care and pathway planning should primarily focus on their long-term future in the UK, in the same way as for any other care leaver.
• Refused asylum but granted Unaccompanied Asylum Seeking Child (UASC) Leave. This is normally for 30 months or until the age of 17½, whichever is the shorter period. This form of leave is granted to unaccompanied children where they do not qualify for refugee status or humanitarian protection, but where the Home Office cannot return them to their home country because it is not satisfied that safe and adequate reception arrangements are in place in that country. It is a form of temporary leave to remain and is not a route to settlement. This decision is a refusal of the child's asylum claim and will attract a right of appeal. The child should be assisted to obtain legal advice on appealing against such a refusal. Before the child's UASC Leave expires, they can submit an application for further leave to remain and/or a fresh claim for asylum, which will be considered. It is essential that they are assisted to access legal advice and make any such further application or claim before their UASC Leave expires.
  
  In such cases, care and pathway planning should therefore consider the possibility that the child may have to return to their home country once their UASC Leave expires or that they may become legally resident in the UK long-term (if a subsequent application or appeal is successful). Planning should also cover the possibility that they reach the age of 18 with an outstanding application or appeal and are entitled to remain in the UK until its outcome is known.
• Refused asylum and granted no leave to remain. In this case the unaccompanied child is expected to return to their home country and their care plan should address the relevant actions and the support required. The Home Office will not return an unaccompanied child to their home country unless it is satisfied that safe and adequate reception arrangements are in place in that country. Any appeal or further application should be submitted where appropriate by the child's legal adviser.
  
  Although these are the four main types of outcomes for an unaccompanied child, there may be others. For example, a child may be granted discretionary leave depending on whether they meet other criteria such as needing to stay in the UK to help police with their enquires after being conclusively identified as a victim of trafficking. Other examples include: leave as a stateless person; limited or discretionary leave for compassionate reasons; and limited leave on the basis of family or private life.

Independent Family Returns Panel

The Secretary of State must consult the Independent Family Returns Panel in each family returns case, on how best to safeguard and promote the welfare of the children of the family, and in each case where the Secretary of State proposes to detain a family in pre-departure accommodation, on the suitability of so doing, having particular regard to the need to safeguard and promote the welfare of the children of the family.

A family returns case is a case where a child who is living in the United Kingdom is to be removed from or required to leave the United Kingdom, together with their parent/carer.

Pre-departure accommodation is a secure facility designed to be used as a last resort where families fail to co-operate with other options to leave the UK, such as the offer of assisted voluntary return.

The Panel may request information in order that any return plan for a particular family has taken into account any information held by other agencies that relates to safeguarding, welfare or child protection. In particular a social worker or manager from Children's Social Care may be invited to contribute to the Panel.

A local authority (as a 'first responder') identifying a potential victim of modern slavery must refer them to the National Referral Mechanism (NRM) for consideration by the Single Competent Authority (SCA). Children's Social Care departments are able to make a referral into the NRM, as they may be entitled to further support. Victims can be of any nationality, and may include British national children, such as those trafficked for child sexual exploitation or those trafficked as drug carriers internally in the UK. The NRM does not supersede child protection procedures, so existing safeguarding processes should still be followed in tandem with the notifications to the NRM. See also National Referral Mechanism: Guidance for Child First Responders.

There is no minimum requirement for justifying a referral into the NRM and consent is not required for children. Communicate honestly with the child about your concerns and reasons for referring them into the NRM.

To complete and see where to send the forms, and the associated guidance, visit Digital Referral System: Report Modern Slavery.

The Duty to Notify - Local authorities have a duty to notify the Home Office about any potential victims of Modern Slavery. It is intended to gather better data about modern slavery. This requirement can be satisfied by completing the National Referral Mechanism Digital Form.

The National Referral Mechanism (NRM) is a single framework centred on a multi-agency approach to victim identification and referral to appropriate support. Certain specified public authorities (including the police and local authorities) are under a statutory duty pursuant to the 2015 Act, to refer or notify the Home Office about any potential victims of modern slavery they encounter in England and Wales. Others are required to do the same as a matter of Home Office policy (including UK Visas and Immigration and Border Force). ‘First Responder’ organisations are those authorised to refer individuals into the NRM. The Single Competent Authority (SCA, part of the Home Office) then makes a decision to be made on whether the individual is a victim of modern slavery, human trafficking and / or slavery, servitude and forced or compulsory labour (MSHT).

Consent is required to refer an adult into the NRM. However, where an adult does not consent, public organisations have a ‘Duty to Notify’ the Home Office that they have encountered a potential victim. For children and young people under 18, consent to go through the NRM process is not required.

Statutory guidance is published by the Home Office, which provides advice on how to identify and support victims, the NRM process and the criteria used to determine whether someone is a victim. Of particular relevance, Annex E contains guidance for SCA staff on the NRM decision-making process and Annex H sets out details of the Section 45 Modern Slavery Act 2015 statutory defence.

Single Competent Authority

The SCA is responsible for identification and support for potential and confirmed victims of modern slavery through the Modern Slavery Victim Care Contract (VCC).

The SCA does not have any criminal or other prescribed investigative powers. It can request further information from an individual or their legal representative or from the different parties involved in a case. Where appropriate the SCA will contact the police (OIC/SIO) for further information from a relevant/linked investigation.

NRM decisions are therefore heavily dependent on the information provided by external parties over which the SCA has no control. It will take a decision whether there are Reasonable or Conclusive Grounds that a person is a victim of modern slavery.

Referrals to the SCA for an NRM decision by the police

The CPS is not a first responder and cannot make referrals to the SCA. Where a prosecutor concludes that a suspect should be referred to the SCA for an NRM decision this must be done through the police.

The police, as a First Responder will complete an online referral form recording their encounter with the potential victim. All relevant information should be included to enable the SCA to consider whether the subject should be treated as a potential victim of MSHT.

All correspondence / liaison with the SCA should be conducted through the police. If an NRM decision is outstanding in a case where the CTL is approaching, this should be brought to the attention of the CPS unit head for escalation within the police.

In all cases involving criminal proceedings, the investigator should ensure that the following information is provided to the SCA, together with the relevant factors of each case:

• Defendant’s full name;
• Date of birth;
• Nationality if known;
• NRM reference number;
• Court and next hearing date;
• CTL expiry date;
• If the defendant is a youth.

This will enable the SCA to prioritise cases effectively for early decision. The SCA should be updated immediately, by the investigator, as the case develops (for example, if someone is later remanded into custody, or if a trial date is set / brought forward).

Reasonable Grounds Decision

The SCA will first decide if there are reasonable grounds to believe that the person is a victim (the reasonable grounds decision). The test for a reasonable grounds decision is whether the statement: "I suspect but cannot prove" is true; or a reasonable person having regard to the information in the mind of the decision maker, would think there are Reasonable Grounds to believe the individual is a victim of modern slavery. The credibility of the victim’s account will be assessed, with an understanding of mitigating reasons due to trauma that may impact on the information provided. General indicators of a potential victim's behaviour, circumstances and responses to questions are taken into account in reaching the decision.

Conclusive Grounds Decision

The second stage involves a further inquiry. The test used for the conclusive grounds decision is whether, ‘on the balance of probabilities’, there are sufficient grounds to decide that the individual being considered is a victim of human trafficking or slavery, servitude, and forced or compulsory labour.

Timescales

The SCA aims to make reasonable grounds decisions within 5 working days of receiving a referral wherever possible and there is sufficient information for it to do so. Emergency support is available for potential victims who would otherwise be destitute during this time.

A positive reasonable grounds decision entitles the potential victim to a recovery and reflection period for a minimum of 45 days, and until the conclusive grounds decision is made.

The SCA has agreed to prioritise cases wherever possible that are listed for plea or trial, or where CTLs are getting closer to expiry. However, this is contingent on sufficient notice to ensure decisions can be made on time and compliance with the obligations for that process set out in the statutory guidance.

During the process, the risks and needs of victims are assessed at various points. Support for potential and confirmed victims is provided through a mixture of mainstream and/or specialist support services. It can included access to government-funded support through the VCC (including accommodation, material assistance, financial support, translation and interpretation services, information and advice; outreach support if already in safe, secure and appropriate accommodation; specialist support including counselling, access to physical and mental health care; signposting to services including legal aid; and assistance to return to their home country if not a UK national. Child victims are supported by local authorities under their statutory safeguarding duties. The recovery and reflection period is intended, in part, to aid a victim's recovery from their immediate physical or psychological trauma before deciding whether to support an investigation / prosecution. However, this does not preclude the victim from speaking with law enforcement to provide intelligence or information or make a statement if they wish to assist an investigation.

During the recovery and reflection period, further information and evidence will be collected to enable a conclusive grounds decision to be made. When the conclusive grounds decision is made, those adults with a positive decision receive a further period of move-on support, the length of which is based upon the individual victim's needs. This move-on support period is in place to help victims to safely transition out of NRM support. Those with a negative decision receive support for a further 9 days.

Following a positive conclusive grounds decision, victims may be eligible for discretionary leave, a form of leave to remain that is granted outside the Immigration Rules in accordance with Home Office Policy. This may be granted where a victim is assisting the police with their enquiries; where the victim is seeking compensation from their exploiters in UK courts, and it would be unreasonable for them to pursue the claim from outside of the UK; or it is deemed necessary owing to their personal circumstances.

Whenever any professional comes across a child who they believe has recently moved into this country the following basic information should be sought:

• Confirmation of the child's identity and immigration status;
• Confirmation of the carer's relationship with the child and immigration status;
• Confirmation of the child's health and education arrangements in this country;
• Confirmation of the child's health and education arrangements in the country of origin and any other country that the child has travelled through.

This should be done in a way which is as unthreatening to the child and carer as possible.

When an unaccompanied child or child accompanied by someone who does not have Parental Responsibility comes to the attention of any practitioner, a referral should be made to Children's Social Care in accordance with the Referral, Investigation and Assessment Procedure. An Assessment will be undertaken in order to determine whether they are a Child in Need of services, including the need for protection.

Whether they are unaccompanied or accompanied by someone who is not their parent they should be assumed to be a Child in Need unless assessment indicates that this is not the case. The assessment of need should include a separate discussion with the child in a setting where, as far as possible, they feel able to talk freely. This, in itself, may be a complex process where the assessor may not be able to speak the same language as the child.

Many unaccompanied and/or trafficked children are at risk of going missing from care, often within the first 72 hours, whilst others may be at risk of repeated missing episodes due to ongoing exploitation.

Assessment

The Assessment will be conducted in accordance with the Single Assessments (including Section 47 Enquiries) Procedure. The following additional issues will also need to be taken into consideration.

Assessing the needs of these children is only possible if their legal status, background experiences and culture are understood, including the culture shock of arrival in this country.

This is a highly complex area of work and professionals will need to have available to them a solid understanding of the asylum process or colleagues or other professionals with such expertise.

Seeking information from abroad should be a routine part of assessing the situation of an unaccompanied child. Practitioners from all key agencies - Health, Education, Children's Social Care and the Police - should all be prepared to request information from their equivalent agencies in the country or countries in which a child has lived, in order to gain as full as possible a picture of the child's preceding circumstances.

The child should be offered an Independent Visitor and, if they decline, their reasons should be recorded. Any Independent Visitor appointed should have appropriate training and demonstrate an understanding of the needs faced by unaccompanied or trafficked children.

The Assessment should take account of any particular psychological or emotional impact of experiences as an unaccompanied or trafficked child, and any consequent need for psychological or mental health support to help the child deal with them.

Unaccompanied migrant children and child victims of modern slavery will need access to specialist legal advice and support. This will be in relation to immigration and asylum applications and decisions and any associated legal proceedings. If they have been a victim of modern slavery, it may also be in relation to criminal proceedings or compensation claims. The assessment should note that specialist legal support is required and how it will be provided.

Planning for the child should include planning for a variety of possible outcomes regarding the child's immigration status - see Asylum Process – Possible Outcomes.

'Modern slavery' is a form of organised crime in which individuals including children and young people are treated as commodities and exploited for criminal and financial gain. It encompasses human trafficking, slavery, servitude and forced labour.

The Modern Slavery Act 2015 provides better protection for victims and increases the sentences for committing these offences.

Grooming methods are often used to gain the trust of a child and their parents, e.g. the promise of a better life or education, which results in a life of abuse, servitude and inhumane treatment.

'Trafficking of persons' means the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

'Exploitation' for modern slavery purposes is defined, as a minimum, to include: sexual exploitation, forced labour, domestic servitude and organ trafficking.

Trafficked victims are coerced or deceived by the person arranging their relocation, and are often subject to physical, sexual and mental abuse. The trafficked child or person is denied their human rights and is forced into exploitation by the trafficker or person into whose control they are delivered.

Children are not considered able to give 'informed consent' to their own exploitation (including criminal exploitation), so it is not necessary to consider the means used for the exploitation - whether they were forced, coerced or deceived, i.e. a child's consent to being trafficked is irrelevant and it is not necessary to prove coercion or any other inducement.

2.1.1 Human Trafficking

Definition

The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (‘Palermo Protocol’) provided (Article 3) the first internationally recognised definition of human trafficking:

"Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control of another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs."

Legislation

Human Trafficking - Section 2 Modern Slavery Act 2015

1. A person commits an offence if the person arranges or facilitates the travel of another person (V) with a view to V being exploited;
2. It is irrelevant whether the victim consents to the travel (whether V is an adult or child);
3. A person may in particular arrange or facilitate V's travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V;
4. A person arranges or a person arranges or facilitates V's travel with a view to V being exploited only if:
   1. The person intends to exploit V in any part of the world during or after travel; or
   2. The person knows or ought to know that another person is likely to exploit V in any part of the world during or after travel.
5. Travel is defined as:
   1. Arriving in, or entering, any country;
   2. Departing from any country; or
   3. Travelling within any country.
6. A person who is a United Kingdom (UK) national commits an offence regardless of where the arranging or facilitating takes place, or where the travel takes place. In other words, this offence may be committed by a UK national anywhere in the world and no matter where V is travelling;
7. A person who is not a UK national commits an offence if any part of the arranging or facilitating takes place in the UK, or the travel consists of arrival or entry into, departure from, or travel within the UK.

Boys and girls of all ages are affected and can be trafficked into, within ('internal trafficking'), and out of the UK for many reasons and all forms of exploitation.

Victims may be sexually exploited and forced into sex work. Victims have been found in brothels, saunas and lap dancing clubs. Persons subject to forced labour have been found working with little or no pay in farms, factories, nail bars, car washes, hotels and restaurants.  Domestic servitude involves victims who work in a household where they are subject to long working hours with little or no pay, often in very poor working conditions. Sometimes forced marriage can lead to domestic servitude. Criminal exploitation can involve young people being forced to work in cannabis cultivation, county lines exploitation, begging and pick-pocketing. Other types of exploitation include debt bondage (being forced to work to pay off debts that realistically they will never be able to), organ harvesting, financial fraud (including benefit fraud), and illegal adoption. For further information see Typology of 17 Types of Modern Slavery Offences in the UK.

Victims often face more than one type of abuse and slavery, for example they may be sold to another trafficker and then forced into another form of exploitation.

Children and young people may be exploited by parents, carers or family members. Often the child or young person will not realise that family members are involved in the exploitation.

The Modern Slavery Act 2015 (applicable mostly in England and Wales[1]) provides two civil prevention orders - the Slavery and Trafficking Prevention Orders (STPO) and Slavery and Trafficking Risk Order (STRO), and provision for child trafficking advocates.

_{[1] Some provisions also concern Northern Ireland and Scotland. Also see the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 and the Human Trafficking and Exploitation (Scotland) Act 2015}

2.2.1 Meaning of Exploitation

Section 3 defines the meaning of exploitation for the purposes of section 2. A person is exploited only if one or more of the following apply:

1. Slavery servitude and forced or compulsory labour, where a person is the victim of an offence under section 1 of the 2015 Act or which would involve the commission of an offence if it took place in England and Wales (section 3(2)) (see Slavery, Servitude, Forced and Compulsory Labour below);
2. Sexual exploitation, under section 3(3):
   • Section 3(3)(a) which involves the commission of an offence under:
     • Section 1(1)(a) of the Protection of Children's Act 1978 (indecent photographs of children); or
     • Part 1 Sexual Offences Act 2003 Sexual exploitation, as it has effect in England and Wales; or
   • Section 3(3)(b) which would involve the commission of such an offence if it were done in England and Wales (section 3(3);
   • Removal of organs in circumstances where a person is encouraged required or expected to do anything which involves the commission of an offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of commercial dealings in organs and restrictions on use of live donors) as it has effect in England and Wales, or which would involve the commission of such an offence if it took place in England and Wales (section 3(4));
   • Securing services etc. by force, threats or deception, where the person is subjected to force, threats or deception designed to induce them:
     • To provide services of any kind;
     • To provide another person with benefits of any kind; or
     • To enable another person to acquire benefits of any kind (section 3(5)).
   • Securing services etc. from children and vulnerable persons in circumstances where another person uses or attempts to use the person for a purpose within subsections (5) (a), (b) or (c), having chosen him or her for that purpose on the grounds that -
     • They are a child, are mentally or physically ill or disabled, or has a family relationship with a particular person; and
     • An adult, or a person without the illness, disability, or family relationship, would be likely to refuse to be used for that purpose (section 3(6)).
   • Benefits could include any advantage derived by the trafficker (or another person) such as financial gain, profit, personal benefit or privilege as well as state financial assistance.
   • This is an either-way offence and on summary conviction is subject to twelve months' imprisonment and / or unlimited fine. On conviction on indictment, it is life imprisonment. The offence is also a "lifestyle offence" for the purposes of the Proceeds of Crime Act 2002 (‘POCA’). As the offence is likely to lead to a significant sentence on conviction cases will ordinarily require allocation to the Crown Court for trial.

There is no definitive definition of a trafficked victim. Trafficked victims are identified as those persons who are exploited at the hands of their traffickers and are victims of the criminality as defined by the Palermo Protocol as set out above. This definition is reflected in sections 2 and 3 of the 2015 Act.

Loss of freedom is a defining feature of trafficking, which does not necessarily involve obvious physical constraint. For example, trafficked victims are often not allowed to leave the premises where they are held or if they do, they are accompanied by a trafficker. Victims suffer frequent and severe abuse, both physical and psychological. Violence and physical harm are the hallmarks of trafficked women, in particular. Further information can be found in the Evidential Considerations under Slavery or Servitude later in this guidance.

From a prosecution perspective it is important to adhere to the standards set out in the Code of Practice for Victims of Crime which places the needs of victims at the heart of the criminal justice system.

2.3.1 Convention on Action against Trafficking in Human Beings

The Council of Europe Convention on Action against Trafficking in Human Beings, the "Anti-Trafficking Convention", entered into force in the UK on 1 April 2009. Implementation introduced a number of provisions to improve the ability to identify victims, refer them to appropriate support and bring more cases to justice. The provisions include mechanisms for early identification of victims, national referral schemes, and the granting of recovery and reflection periods and renewable residence permits to victims.

2.3.2 Child Trafficking /Exploitation/Slavery and Forced Labour

Child trafficking is the practice of transporting children into, within and out of the UK or any other country for the purposes of exploitation. The exploitation can be varied and include:

• Domestic servitude;
• Labour exploitation;
• Criminal activity (e.g. cannabis cultivation, drug supply through county lines, petty street crime, illegal street trade, etc.);
• Sexual exploitation (child abuse, closed community, child abuse images);
• Application of residence;
• Benefit fraud;
• Forced begging;
• Illegal adoption; and
• Sham marriage.

Where there is an arrangement made to travel, or to facilitate travel with a view to child exploitation, section 2 of the 2015 Act should be used. In these circumstances, regard should be had to the victim's age in determining their vulnerability.

If the victim states they are a child, they should be viewed as such until their age can be verified by identification or an independent age assessment carried out by the local authority or a court determination. Section 51 of the 2015 Act provides for presumption about age. Until an assessment is made of the person's age by the local authority, there is an assumption that the person is under 18.

2.3.3 Child Exploitation

Non–sexual exploitation

In cases where there is no evidence of trafficking, but there is non-sexual exploitation, prosecutors should consider charging under section 1 of the 2015 Act (slavery, servitude, forced or compulsory labour). The consent to any of the acts of exploitation does not preclude a determination that the child is being held in slavery or forced labour.

In determining whether a child is held in slavery or forced labour, regard may be had to all of the circumstances, for example, any work or services which constitute exploitation described in section 3 of the 2015 Act (for human trafficking) can be taken into account. The vulnerability of the child should also be considered, for example the fact that they are a child, their family relationships and any mental or physical illness or disability.

Where the evidence of exploitation does not reach the thresholds required for these offences, other legislation should be considered. Children can be exploited, for example, through forced begging. In addition to a safeguarding response, prosecutors should consider offences under the Children and Young Persons Act 1933 of cruelty to persons under sixteen (section 1), as well as the specific offence of causing or allowing persons under sixteen to be used for begging under section 4 of the Act.

If exploitation of a child involves benefit fraud and trafficking for exploitation could not be evidenced, offences under the Social Security Administration Act 1992, the Fraud Act 2006 and the Theft Act 1978 could be considered.

Where a child has been inappropriately removed from their family and held elsewhere, depending on the facts of the individual case, offences of child abduction (sections 1 and 2 of the Child Abduction Act 1984), false imprisonment or kidnapping may be appropriate.

2.3.4 Child Sexual Exploitation

Where there is no evidence of movement (for trafficking) for child sexual exploitation, there are a wide range of offences to tackle sexual exploitation of children under the Sexual Offences Act 2003. Attempts to shoehorn conduct into related offences of human trafficking or slavery can sometimes derail cases, particularly in cases of child sexual exploitation. Although the trafficking offences can be used, they are not necessarily central to the case. Other alternative serious sexual offences involving the exploitation of children may be more accurate to actual offending and be easier to explain - particularly to juries. These offences allow for substantial penalties.

Child trafficking and exploitation is often accompanied by various types of control such as violence, the threat of violence, sexual abuse, alcohol and drug abuse, emotional abuse, manipulation through cultural practices and imprisonment to suppress victims and ensure their compliance. For that reason, victims may not fully cooperate with an investigation or prosecution for fear of reprisals. Offenders may also attempt to abduct or coerce the child whilst criminal proceedings are on-going and while the child is being cared for by the local authority.

Children are also exploited by committing criminal acts on behalf of their trafficker / exploiter. Examples include cannabis cultivation, organised street crime, drug supply through county lines and begging. Where it is found that the child committed an offence as a direct result of their situation, prosecutors should follow the CPS guidance below and consider the statutory defence for slavery or trafficking victims.

2.3.5 Modern Slavery and Drug Offences

Offending through "County Lines" is a national issue involving the exploitation of vulnerable children and adults by violent gang members in order to move and sell crack and heroin across the country, often associated with city-based organised crime gangs. For further information, see the Gang related offences Legal Guidance.

The victims are often children, aged 14 to 17 years, who are groomed with money, gifts or through relationships and forced to carry out day to day dealing. Children as young as 11 years of age have been reported as being recruited. Violence is used against drug users to coerce them to become runners, enforce debts, and use their accommodation as an operating base.

All available charges should be considered when considering a prosecution in connection with County Lines offending, including the 2015 Act in circumstances where there has been deliberate targeting, recruitment and significant exploitation of young and vulnerable people. Prosecutors should, however, be alert to the challenge of securing a conviction for a 2015 Act offence.

The Court of Appeal handed down judgment following an appeal against a terminating ruling in R v KWA [2018] EWCA Crim 1432 in which the exploitation involved the use of child (drug) couriers. The prosecution case was that the couriers were chosen because of their youth and because someone older would have been likely to refuse. None of the child couriers attended court to give evidence. Instead, a police expert witness gave evidence explaining how a county drug line works and the advantages of using child couriers. The Court considered the interpretation of the offence of trafficking a person within the UK for exploitation contrary to Section 4(1A)(b) Asylum and Immigration Act 2004 (which is now replicated in Section 2 of the 2015 Act) and held that:

• A prosecution for this offence does not depend upon the ability to call the individual said to have been exploited or the target of exploitation;
• It is not necessary for the prosecution to establish that the defendant (and/or another person) has actually exploited the victim. The offence requires no more than a ‘view to exploitation’;
• The prosecution does not have to prove that the victim was chosen solely because of their youth and that an adult would be likely to refuse. The fact that the victim may have been chosen for other reasons as well is not fatal to the prosecution case;
• The prosecution does not have to prove a lack of consent on the part of the victim or any element of coercion;
• The word ‘chosen’ is not synonymous with ‘being recruited’ and is not a once and for all act that cannot be repeated. A victim might be ‘chosen’ by various people in a drugs hierarchy on a number of occasions.

In such cases, victims should be referred through the NRM to establish their trafficking status. Where there may be consideration of charge and prosecution of vulnerable children or adults, prosecutors should consider applying the statutory defence or CPS policy on the non-prosecution of suspects who may be victims of trafficking.

However, if a person, by joining an illegal organisation or a similar group of people with criminal objectives and coercive methods, voluntarily exposes and submits himself to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid: R v Fitzpatrick [1977] N.I.L.R. 20.

In the meantime, prosecutors are alerted to the case of Mohammed (Zakaria) [2019] EWCA Crim 1881. There, the Court of Appeal found an overall sentence of 12 years was appropriate in relation to a drug dealer who exploited children in county lines activity (seven years for five counts of human trafficking contrary to the Modern Slavery Act, section 2 and five years consecutive for conspiracy to supply).

The Court of Appeal indicated that it was not for the Court to set a sentencing guideline but provided (at paragraph 37) relevant sentencing considerations:

• Where the person whose travel was arranged with a view to exploitation was a child the offence inevitably would be more serious than a case where the person was an adult;
• Where the exploitation involved the commission of serious criminal offences the exploitation offence would be especially grave;
• The number of children whose travel was facilitated or arranged would be of importance;
• The offence would be aggravated if the same child was the subject of travel with a view to exploitation more than once.

In R v Nixon (Omorie Tevon-Te) [2021] EWCA Crim 575, the Court of Appeal found that sentence was unduly lenient and sentencing for the drugs conspiracy on the one hand and the counts of trafficking on the other hand should be reached in isolation from each other, although at the end it is possible to look at the question of totality.

Confirming the findings in Mohammed (Zakaria), the Court additionally held that four children were exploited in the course of this trafficking, the youngest being 15 years old at the time, and that they were used not only as drug runners, but as drug vessels: that is to say, they had drugs in their anuses, which poses a particular danger to the drug carrier and is an aggravating factor over and above that of the exploitation of teenage children simply as drug runners.

Identification of potential child victims of modern slavery/trafficking may be difficult as they might not show obvious signs of distress or abuse. Some children are unaware that they have been trafficked, while others may actively participate in hiding that they have been trafficked. Even when a child understands what has happened, they may still appear to submit willingly to what they believe to be the will of their parents or accompanying adults. It is important that these children are protected too. Children do not have the legal capacity to 'consent' to their trafficking or their exploitation.

Signs that a child has been trafficked may not be obvious, or children may show signs of multiple forms of abuse and neglect. Spotting the potential signs of child slavery/trafficking in referrals and children you work with can include:

• A reluctance to seek help - victims may be wary of the authorities for many reasons such as not knowing who to trust or a fear of deportation or concern regarding their immigration status and may avoid giving details of accommodation or personal details;
• The child may seem like a willing participant in their exploitation, e.g. involvement in lucrative criminal activity - however this does not mean they have benefitted from the proceeds;
• Discrepancies in the information victims have provided due to traffickers forcing them to provide incorrect stories;
• An unwillingness to disclose details of their experience due to being in a situation of dependency;
• Brought or moved from another country;
• An unrelated or new child discovered at an address;
• Unsatisfactory living conditions - may be living in dirty, cramped or overcrowded accommodation;
• Missing - from care, home or school - including a pattern of registration and de-registration from different schools;
• Children may be found in brothels and saunas;
• Spending a lot of time doing household chores;
• May be working in catering, nail bars, caring for children and cleaning;
• Rarely leaving their home, with no freedom of movement and no time for playing;
• Orphaned or living apart from their family, often in unregulated private foster care;
• Limited English or knowledge of their local area in which they live;
• False documentation, no passport or identification documents;
• Few or no personal effects - few personal possessions and tend to wear the same clothing;
• No evidence of parental permission for the child to travel to the UK or stay with the adult;
• Little or no evidence of any pre-existing relationship with the adult or even an absence of any knowledge of the accompanying adult;
• Significantly older partner;
• Underage marriage.

Physical Appearance - Victims may show signs of physical or psychological abuse, look malnourished or unkempt, or appear withdrawn.

Physical illnesses - Including work-related injuries through poor health and safety measures, or injuries apparently as a result of assault or controlling measures. There may be physical indications of working (e.g. overly tired in school or indications of manual labour).

Sexual health indicators - Sexually transmitted infections, or pregnancy; injuries of a sexual nature and /or gynaecological symptoms.

Psychological indicators - Suffering from post traumatic stress disorder which may include symptoms of hostility, aggression and difficulty with recalling episodes and concentrating. Depression/self-harm and/or suicidal feelings; an attitude of self blame, shame and extensive loss of control; drug and or/alcohol use.

2.3.5 Section 4 Modern Slavery Act 2015 - Committing an offence with intent to commit an offence under section 2 of the Act

Section 4 creates an offence of committing any offence with the intention to commit an offence of human trafficking under section 2. This includes an offence committed by aiding, abetting, counselling or procuring an offence under section 2. The offence will also capture activity such as supplying false documents to be used to facilitate trafficking. The offence is drawn widely enough to encompass any offence committed by aiding, abetting, counselling or procuring an offence of trafficking.

Section 4 was introduced to reflect Section 62 of the Sexual Offences Act 2003, committing an offence with intent to commit a sexual offence, which could be used in cases of trafficking for sexual exploitation, to ensure parity in cases of trafficking for non-sexual exploitation.

Prosecutors should note that this provision cannot be used for section 1 of the 2015 Act.

In its application to human trafficking under section 2, it should be used in circumstances where the act committed is:

• A criminal offence; and
• Where the evidence supports the commission of a lesser offence with intent to commit a more serious offence but there is insufficient evidence to prosecute the more serious offence in its own right.

The offence of attempting to commit the substantive offence will often not be an available option to prosecutors, as the acts involved will not be “more than merely preparatory” to the commission of the substantive offence.

It will be a matter for prosecutors, when reviewing the evidence against each suspect or defendant to give consideration to all criminal offences that might be disclosed.

This is an either-way offence and on summary conviction is subject to twelve months' imprisonment and / or unlimited fine. On conviction on indictment, the maximum sentence is ten years' imprisonment. However, where the offence involves false imprisonment or kidnapping, it is life imprisonment.

2.3.6 Offences of human trafficking which pre-date the Modern Slavery Act 2015

For offences of trafficking for sexual exploitation which occurred before 31 July 2015, but after 13 April 2013, see: Trafficking people for sexual exploitation - Section 59a Sexual Offences Act 2003.

For offences of trafficking for sexual exploitation which occurred before 13 April 2013, see: Trafficking into the UK for sexual exploitation - section 57, 58 and 59 Sexual Offences Act 2003. 

For offences of trafficking for all other forms of exploitation (non-sexual exploitation) which occurred before 31 July 2015, see: Trafficking people for labour and other exploitation - section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 as amended.

In circumstances where the victim was not trafficked, or the trafficking element cannot be proved to the criminal standard, prosecutors should consider the offence of "holding another person in slavery or servitude" or "requiring them to perform forced or compulsory labour" under section 1 of the 2015 Act or, if before 31 July 2015, section 71 of the Coroners and Justice Act 2009. See the section below on Slavery, Servitude, Forced or Compulsory Labour.

2.3.7 Slavery, Servitude, Forced and Compulsory Labour

Article 4 of the European Convention on Human Rights 'ECHR' states that no one shall be held in slavery or servitude and no one shall be required to perform forced or compulsory labour.

Section 1 of 2015 Act sets out that: 

1. A person commits an offence if -
   1. The person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude; or
   2. The person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.
2. In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 ECHR;
3. In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances;
4. For example, regard may be had:
   1. To any of the person's personal circumstances (such as the person being a child, the person's family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons;
   2. To any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within s. 3(3) to (6) of the Act (see above).
5. The consent of a person (whether adult or child) to any of the acts alleged to constitute holding the person in slavery or servitude or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude or required to perform forced or compulsory labour.

This offence can be used in cases where the victim has been exploited in accordance with the ECHR definition but was not trafficked, or the trafficking element cannot be proved to the criminal standard. The offence under section 1 of 2015 Act has been extended to cover all forms of exploitation relevant to human trafficking. This means that prosecutors should consider any work or services provided in circumstances amounting to exploitation within the meaning of section 3 of the 2015 Act. This may include, for example, children involved in pickpocketing or begging. However, the circumstances must still be interpreted in accordance with Article 4 ECHR.

Sections 1(3), (4) and (5) of the 2015 Act provide that all the circumstances should be considered when determining whether a person is a victim of slavery servitude or forced labour. This can include their age, family relationship and any mental or physical illness which may make the person more vulnerable.

A person guilty of an offence under this section is liable: on summary conviction, to imprisonment for term not exceeding 12 months or a fine or both; and on conviction on indictment, to imprisonment for life.

For offences of Slavery, Servitude, Forced and Compulsory Labour which occurred before 31 July 2015 see Section 71 of the Coroners and Justice Act 2009.

Modern slavery and trafficking are  child abuse, and any potential victim of child trafficking or slavery, servitude, or forced or compulsory labour should immediately be referred to Children's Services in the area, as they may be suffering significant harm - see Referral, Investigation and Assessment Procedure.

In addition to the usual actions to be taken, additional considerations will apply if the child is suspected of being a victim of trafficking and/or modern slavery. Once a potential victim has been identified, practitioners should inform them of their right to protection, support, and assistance in any criminal proceedings against offenders. Practitioners should arrange access to specialist legal advice and support. Trafficked children may apply to UK Visas and Immigration for asylum or humanitarian protection. This is because they often face a high level of risk of harm if they are forced to return to their country of origin.

If the child or anyone connected to them is in immediate danger the police should be contacted as normal.

Practitioners should meet any urgent health needs and arrange emergency medical treatment if appropriate.

Practitioners must arrange safe accommodation for the potential victim.

2.4.1 Assessment

Where a child is a victim or potential victim of Modern Slavery/Trafficking, the Assessment should be carried out immediately as the opportunity to intervene is very narrow. Many trafficked children go missing from care, often within the first 72 hours. There should be a clear understanding between the local authority and the police of roles in planning for the protection and responding if a child goes missing.

During the Assessment, the lead social worker should establish the child's background history including a new or recent photograph, passport and visa details, Home Office papers and proof and details of the guardian or carer.

Where the outcome of the assessment is that the child becomes looked after, the social worker and carers must consider the child's vulnerability to the continuing influence/control of the traffickers and how they may seek to contact them for instance by mobile phone or the internet. Planning and actions to support the child must minimise the risk of the traffickers being able to re-involve a child in exploitative activities:

• The location of the child must not be divulged to any enquirers until they have been interviewed by a social worker and their identity and relationship/connection with the child established, with the help of police and immigration services, if required;
• Foster carers/residential workers must be vigilant about anything unusual e.g. waiting cars outside the premises and telephone enquiries.

The social worker must immediately pass to the police any information on the child (concerning risks to her/his safety or any other aspect of the law pertaining either to child protection or immigration or other matters) which emerges during the placement. The social worker must try to make contact with the child's parents in the country of origin (immigration services may be able to help), to find out the plans they have made for their child and to seek their views. The social worker must take steps to verify the relationship between the child and those thought to be her/his parent/s.

Anyone approaching the local authority and claiming to be a potential carer, friend, member of the family etc, of the child, should be investigated by the social worker, the police and immigration service. If the supervising manager is satisfied that all agencies have completed satisfactory identification checks and risk assessments, the child may transfer to their care.

The child should be offered an Independent Visitor and, if they decline, their reasons should be recorded. Any Independent Visitor appointed should have appropriate training and demonstrate an understanding of the needs faced by unaccompanied or trafficked children.

The Assessment should take account of any particular psychological or emotional impact of experiences as an unaccompanied or trafficked child, and any consequent need for psychological or mental health support to help the child deal with them.

Practitioners must always ensure that a victim-centred approach to tackling all types of trafficking and modern slavery is taken. This can be achieved by the following:

• Dealing with the child sensitively to avoid them being alarmed or shamed - building trust, as victims commonly feel fear towards the authorities;
• Keeping in mind the child's:
  • Added vulnerability;
  • Developmental stage;
  • Possible grooming by the perpetrator.

A child's credibility can be challenged if the child is subject to immigration control on the basis of their disclosure being made in instalments. It is important that practitioners make careful notes about what is disclosed, as a child may have difficulty recalling what they've experienced as a result of trauma. This will support the child and help others understand the process of disclosure.

When questioning a potential victim, initially observe non verbal communication and body language between the victim and their perpetrator.

It is important to consider the potential victim's safety and that of their loved ones. Confidentiality and careful handling of personal information is imperative to ensure the child's safety. Practitioners must not disclose to anyone not directly involved in the case, any details that may compromise their safety.

For further advice and support the Child Trafficking Advice Centre (CTAC) provides free guidance to professionals concerned that a child or young person is a victim of modern slavery.

2.4.2 Supporting Victims

Victims and witnesses in these cases are likely to be extremely vulnerable and this can present challenges in managing and supporting them before and during the trial. They are often deliberately targeted for their vulnerabilities; they may be homeless, addicted to alcohol or drugs, friendless, isolated and destitute. When they have been controlled by discipline, threats and violence, they may effectively become institutionalised. In such cases, it is good practice for the victims to be removed to a private reception centre, where their needs can be assessed and referral made to appropriate support agencies. In such cases, the police have worked with social services for the co-ordination of support services to provide on-going accommodation and retain regular contact leading up to trial. The CPS should liaise with the police in advance of the trial to agree costs of accommodation and transport for the duration of the trial.

Good practice has been to limit the number of third party contacts with the victims, to help them and reduce defence cross examination intended to undermine the victim's credibility by allegations of coaching.

Consideration should be given to the use of expert evidence such as medical evidence and psychologists - particularly where there are extreme vulnerabilities. It is important to select an expert whose expertise is tailored to the particular condition and needs of the victim, is capable of providing support to the victim as well as giving evidence, and advising advocates in understanding how best to communicate with the victim.

In some cases the use of intermediaries and ground rule hearings should be considered (see Special Measures).

If a victim of forced labour or slavery is also a suspect in a criminal offence, please refer to the section below on Suspects in a criminal case who might be victims of trafficking or slavery.

Many victims take significant risks in giving evidence. Prosecutors should consider the range of measures available to support and protect trafficked victims giving evidence and make appropriate applications to the court.

2.4.3 Achieving Best Evidence (ABE) – Virtual recorded interviews

The published edition of Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable or Intimidated Witnesses (ABE) provides full guidance on virtual recorded interviews for vulnerable or intimidated witnesses.

Good practice has highlighted the importance of having focus on what offences might have been committed when planning the interview with a victim, particularly in cases involving numerous vulnerable victims. Better planning of interviews with victims who have extreme vulnerabilities is advisable, not only for the conduct of the interview but for presentational purposes at court.

Whilst the ABE is advisory and is not a legally enforceable code of conduct, significant departures from the good practice advocated in the ABE guidance may have to be justified in the courts. The failures to follow the ABE guidance came to be considered in detail by the Court of Appeal (Civil Division) in JB (A Child), Re (Sexual Abuse Allegations) [2021] EWCA Civ 46. There, the Court of Appeal expressed serious concerns about the failure of investigators to follow the ABE guidance.

Although this arose in a family case, the points made by the Court of Appeal have equal application in respect of criminal proceedings. Ultimately serious failings in the following of the ABE guidance may lead to arguments around the exclusion of evidence.

2.4.4 Special Measures

Under Section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) a victim of a sexual offence or victims of offences under section 1 and 2 of the 2015 Act (victims of forced labour and trafficking for sexual and non-sexual exploitation) are automatically eligible for assistance unless they wish to opt out.

The investigating officer should discuss Special Measures with the victim to assess what would assist them to give their best evidence. For further information see the Special Measures legal guidance.

2.4.5 Victims who wish to return to their home country

Where a victim has chosen to be repatriated to their home country and they do not wish to return to the UK, there is provision for evidence to be given through television link from their country. Prosecutors should note that the provision set out in Section 32 of the Criminal Justice Act 1988 has been temporarily omitted by the Coronavirus Act 2020 until 25 March 2022. For the duration of this period, the provisions in Section 51 of the Criminal Justice Act 2003 and Part 3A of the Crime and Disorder Act 1998 may be used instead.

For further information on the provision of live links see Live Links – witness or defendant located abroad guidance. Many countries may require a request for live link to be made formally by Mutual Legal Assistance. They may also require the link be conducted form a court room in the overseas country. The court should be notified of this requirement at PTPH and it may be grounds to have the trial date fixed. The court should be advised that most countries usually require a minimum of six to eight weeks to make these arrangements.