The act was passed in October 2015 and received royal assent on 4 November 2015. Transitory provisions brought some provisions of the act into force on 31 May 2016, for the purpose of making regulations. This consultation is to inform those regulations and define the wider roles and responsibilities of an independent child trafficking guardian (ITCG).

Section 11 of the act places a duty on Scottish ministers to make arrangements for an ITCG to be appointed for a child where a relevant authority has reasonable grounds to believe a child is or may be or may be vulnerable to becoming a victim of trafficking and no one in the UK has parental rights or responsibilities.

The consultation rightly suggests that all children and young people who arrive in Scotland unaccompanied may have been or are at risk of being trafficked, but those with someone who has PRRs in the UK are ineligible for a ITCG.

To what lengths are ministers proposing that the ITCG goes to identify this before they become involved, or who is to make that decision before appointing an ITCG? It is unconcerned it would seem with children who may already be in the UK and being trafficked, but just with migrants. So those children remain the responsibility of local authorities around the UK. The legislation and consultation are both narrow in their approach and consideration of the issue.

The proposed function of the ITCG is to be complementary to existing services with the suggestion they will fill “gaps in support” needed to meet a child’s specific needs. It is not clear though why a separate organisation will be funded to appoint ITCG’s. The consultation asks what the role of these ITCG’s should be, not whether an ITCG is worthwhile.

That boat appears to have sailed, and along with it the ability of 32 local authorities spread throughout Scotland to provide the necessary support. Local Authorities have social work responsibilities and practices that deal day to day with issues ranging from child protection, forced marriage, preventing terrorism, a duty to accommodate a child who has been abandoned and no one is apparently responsible for them (s.25 of the Children (Scotland) Act 1995, meet additional support needs and meet many other social care needs. They also have a duty to educate a child and work with other agencies to support and protect children. Adding yet another layer to an already complex situation, with another person involved in a child’s life must be clearly justifiable.

Is there a concern a social worker is unable to protect a potentially trafficked child? The consultation makes no clear reference to existing legislation, social care duties or research or analysis to support the argument that there are gaps in the current system, that justifies the creation and expense of an ICTG. Arguably the funding stream being directed away from the very resources which could be developed and ensure appropriate training for workers to support these children, will only continue to dilute the understanding and ability of local authorities to protect these children.

The consultation does not pose or ask for views on securing children. This is a role which is as yet undefined, but without real teeth, for example is an ITCG to be provided with the ability to seek legal protection for these children for example or does that remain with the local authority? Can a court or Children’s Hearing hear from an ITCG (and will they still be required to appoint a curator ad litem in children’s cases or is this to be replaced by the ITCG) where legal orders are needed to secure a child and protect them? Are they to be separately regulated or answerable to anyone at all?

Responses to the consultation from Social Work Scotland, the CYP commissioner and local authorities may well challenge the intention to introduce an ITCG, ask questions about their legal status, how they will be held to account if not regulated and why ultimately Scottish Ministers intend to fund something which is likely to be as criticised as the Named Person legislation they attempted to introduce a few years ago. The consultation closes on 17 November 2019.

Nicola Hogg is accredited by the Law Society of Scotland as a specialist in child law