The US immigrant scandal shows children urgently need protection from the State by Suranya Aiyar

The scandal over immigrant children in the USA is part of much deeper problem of over-broad and poorly regulated powers of seizure and custody of children given to state agencies in Western countries. The US government has responded to the migrant children situation by piggy-backing on a system already in place of easy child confiscation by state agencies that is wide open to abuse.

A version of this article first appeared in the Sunday Guardian on 16 June 2018 with the title, “When children fall victim to harsh immigration laws” as part of the ongoing weekly series called “Global Child Rights and Wrongs” in collaboration with this website, The series critiques the role of governments and NGOs in the child rights field.

Photo by John Moore/Getty Images of a two year old crying while her mother was stopped at the US border as an illegal immigrant which became the symbol of the worldwide protest against child separation at the border. This image is copyright protected and is used here under license.

“If people don’t want to be separated from their children, they should not bring them with them. We’ve got to get this message out,” said US Attorney General Jeff Sessions, when questioned over the US government systematically confiscating the children of illegal immigrants caught crossing the US-Mexico border. So much for the USA’s oft-repeated refrain of the “best interests of the child”. The hurt to the child is of scant concern when it comes to the best interests of the USA.

The Trump administration need not have taken the blame entirely on its own shoulders for the separation of children from parents illegally entering its borders. Initially, the controversy did not involve children separated from their parents. It began with an investigation into the whereabouts of some 7600 children who had come to the US-Mexico border as unaccompanied minors and had been placed with sponsors by the US Department of Health and Human Services (DHHS). It turned out that the DHHS was unable to account for around 1500 of the children surveyed. The Trump administration first responded by claiming this was the fault of the previous administration which had introduced a policy of removing children from parents at immigrant detention centres. But very quickly the administration changed its tune by effectively accepting the allegations against it with Jeff Sessions’ chilling statement about illegals being at risk of losing their children. Perhaps Trump has decided to use this as an opportunity to show to his base that he is being tough on immigration. But the politics of immigration is for grown-ups. Children just want to be with their parents wherever they are and one of the things that has been lost track of in the debate over immigration is the role of the DHHS in losing the 1500 migrant children from its supposed “protection”. This is of particular interest to this website because the DHHS oversees child protection services (CPS) in the US (for the relationship of the federal government to the state child protection system in the USA see here).

What should be attracting the attention of people concerned about the children is how easy it could be to use the CPS system to traffic in illegals and “disappear” children.

Some Trump supporters tried to fend off criticism over the missing children saying that many of them may not really be missing but may have gone underground with their illegal immigrant families. This is interesting because it shows how the DHHS and its CPS machinery might have been used to smuggle children into the USA. What should be attracting the attention of people concerned about the children is how easy it could be to use the CPS system to traffic in illegals and “disappear” children.

The problem is not just of corruption, which can exist anywhere, but of the CPS agencies’ wide and poorly supervised powers to confiscate children. It is not clear from the reports of the migrant children if a judge’s order was needed for DHHS to remove them from parental custody. But even if it was, anyone who knows the CPS system can tell you that judges are giving interim custody orders to CPS agencies ex parte as a matter of course. The interim takeover of custody by CPS is little more than a matter of filing a pro forma custody application before a family court judge. These interim orders are rarely overturned until a full trial or the closure of the case by the CPS, which can take anywhere from 6 months to 2 years. In this way countless children in the US have been deprived of the care and comfort of their parents, some even as infants or toddlers.

In this closed system having such wide powers of seizure and custody of children, anything can happen.

The CPS system also holds the power to identify and register foster carers and shelter homes without a robust review process. Ofcourse, there are rules for vetting and supervising foster carers and shelter homes, but the system is largely self-regulated by the CPS agencies or their affiliated public authorities. So the system is ripe for trafficking by criminals and malafide elements. This is not to say that the missing migrant children are safe. In this closed system having such wide powers of seizure and custody of children, anything can happen.

There have been many reports of pedophiles managing to register as fosterers and of children in care being trafficked for sex. So it should not come as a surprise if immigration rackets have gotten in on the game as well. Relatives in Punjab of Indians among those detained in the last few weeks for illegally crossing the US-Mexico border have given detailed descriptions of the way human traffickers are operating in their villages promising to smuggle people into the USA for large sums of money. The modus operandi is to sneak people over the border and then make fake political asylum claims with the US authorities. Caravans of people from Central and Latin America are regularly transferred over the US-Mexico border illegally in this way by smugglers are known as “coyotes”. Children are vulnerable by reason of these smuggling rackets. Some of the children carried over the border by illegal immigrants are said not be related to them at all but to be victims of trafficking or kidnapping as part of these human smuggling rackets and are being used to take advantage of US laws regarding migrant children and their families.

The basic problem with child protection systems everywhere is that they were conceived of only as a benign state intervention between the supposedly opposing interests of parents and children. Little attention was given to having the usual checks and balances when police or confiscatory powers are given to state agencies. The US government has responded to the migrant children situation by piggy-backing on a system already in place of easy child confiscation by state agencies that is wide open to abuse.

If critics of the system are right then we are looking at a problem affecting hundreds of thousands of children of all races and of very tender age in the USA.

If critics of the system are right then we are looking at a problem affecting hundreds of thousands of children of all races and of very tender age in the USA. DHHS’s latest estimates show over over 430,000 children in foster care (all data discussed in this article is from the DHHS’s  Adoption and Foster Care Analysis and Reporting System AFCARS Report as of October 2017). 44% of taken children are listed as White, 21% Black and 23% Hispanic. This shows that while the proportion of non-white children taken is very high compared with their percentage of the population, white children are also being taken in very high numbers. Over 31,000 of these children (7%) are newborns (below 1 year) and 56% are 8 years old or younger. Over half entered foster care in the year reported, replacing roughly the same number of children who aged out of state care in that year. This replacement is a trend in every year listed in the report and lends some support to the claim by activists that child removals are influenced by federal funding that is linked to the number of children in care. The breakdown of reasons for children taken in 2016 is worrisome if it is similar for other years. The majority of children are not taken for physical abuse (12%), sexual abuse (4%) or parental substance abuse (drug abuse: 34%; alcohol abuse: 6%) but for the ground of neglect (61%) or “caretaker inability to cope” (11%) and other non-child abuse reasons such as parental incarceration (8%) and poverty related issues such as housing (10%) (Note: the categories reported are not mutually exclusive).

People assume that CPS interventions are only in extreme cases of abuse or neglect, but this is not the case.

People assume that CPS interventions are only in extreme cases of abuse or neglect. But the AFCAR’s figures show that in fact, sexual abuse, physical abuse and abandonment; at 4%, 12% and 5% respectively are among the minority of circumstances associated with child removal. The law does not restrict child removals to extreme cases of abuse or neglect. Children are removed in what are called “dependency proceedings”. In the law of many US states, “dependency” is defined not as abuse or neglect but as the parents’ “capability” to provide “care and supervision” or as a question of the “well-being” or “welfare” of the child. Some statutes define dependency in terms of whether the child has adequate “subsistence”. This explains why poor, marginal or otherwise vulnerable families easily fail under this standard of assessment. Families that are poor, unable to communicate well or “make a good impression” with case workers (this affects many immigrant families with poor to nil English skills or a general demeanour that is not familiar to case workers) or parents facing a personal or financial crisis, unemployment, a broken relationship, strain from having a disability or a disabled child, a child doing poorly in school – are all liable to being found deficient by these wide and “child focused” dependency laws. This is the human face of the data in the AFCARS report which says 10% of child removals are associated with “housing”, 14% with “caretaker inability to cope” and 2% with child disability. Many of the 61% “neglect” cases would also have come about in this way. A more detailed discussion of why so many child removals in the US are unjust and wrong is in my article “It’s not just migrant children – how child removals in the US system go wrong“.

Worldwide problem.

Separating children from immigrant parents is also not unique to the USA. There have been many cases in Norway of the authorities refusing to release Polish and Nigerian children even when their parents are told to leave that country owing to their papers having expired. There are many ways in which immigrant parents end up separated from their children by the child protection system. For years official statistics in both England and Norway have shown that immigrant families are disproportionately targeted by child protection services. Hopefully the migrant children crisis in the US will prompt investigation into these practices all over the world.

The Yusuff family in happier days.

I will end with a case in England that was brought to my attention of a Tamil Muslim family whose children, a boy, then 6 years old, and a girl, then 4 years old, were taken in 2015 for no other reason than to punish the parents for their undocumented status. Here is what happened, in the words of the English judge: “The Background: Both parents are of South Indian origin. They are Tamil Speakers and of the Muslim faith. It appears that the mother has a Singaporean identity card which permits her to live in Singapore. In this jurisdiction they are illegal immigrants. ….The parents probably arrived… around 2004….The children were both born here. The father was employed until April 2013 when he lost his job….. in April 2014 a referral from the Children’s Society brought the family to the attention of the Local Authority… The referral was made on the basis that the family were destitute…..The Local Authority carried out an initial assessment …. The children were made subject to a child in need plan……in April 2014, there were no concerns about the parents’ general abilities to provide the children with good enough care…. The concerns all related to the parents’ ability, financially, to provide for the children and the potential instability arising out of the parents’ immigration status or lack of it….. A major dispute erupted at one of the first meetings between the parties to discuss the financial support the Local Authority would give to the family…..the disagreement about financial support escalated over the next 14 months and the children became embroiled in the dispute.”

The “dispute” was on two points: whether the children were entitled to free school lunches and whether the parents were entitled to an additional weekly stipend of £70 above the stipend of the same amount being given by the Local Authority for the children.
The dispute ended with the children being taken away from their home in a surprise move by the Local Authority. The father says the children were screaming in protest and soiled themselves in terror as they were dragged away by British social workers. The parents never saw them again.

As it turned out, and the judgment itself concedes, the parents were correct in both their claim for the school lunches and the additional stipend. However, when the Local Authority found that it could not deny the family’s legal demands, they accused the parents of causing “emotional harm” to their children by “using them” to get money from the Local Authority and causing them to be “worried about financial matters”. In the judge’s words: “The fact that the parents had perhaps a valid grievance in relation to the payments of £70 per week does not justify using the children in the way they did.”

From the facts recorded in the judgment it appears that the children’s father, Mohammad Yusuff, resorted to considerable histrionics to get the Local Authority to give the children their entitlements. He declared at one point that he would “jump in the sea” if the Local Authority did not help his family. On another occasion Yusuff refused to take his son home for lunch when the school withheld his free meal. All this was called “emotional abuse” by the Local Authority and a child protection investigation was opened against the parents. So the parents found that they were suddenly being accused of child abuse when all they had done was to try to get help for the children from the Local Authority.
Social workers began to come to the children’s school and ask them strange questions. Naturally, the family responded fearfully and defensively. But this was used against them to say that the parents were endangering the children by “not co-operating” with the social workers. The Local Authority subjected the little girl, then just 2 years old, to an invasive body search at school without her parents being present. The father hit back by accusing the authorities of sexual assault. This was taken as another instance of his “using” the children by making “false” claims. While the case was going on, the mother was pregnant with a third child. She left for Singapore for fear of losing even that child as it is routine in England for babies to be removed at birth if previous children are in care. But the judge called this “abandonment” by the mother.

The real reason for this ferocious treatment of the family is to block them from taking advantage of the seven year rule to obtain leave to remain in the UK

The real reason for this ferocious treatment of the family is revealed when the judge says, “In my judgment, the father has sought to prolong these proceedings in order that he may shortly be able to take advantage of the seven year rule to obtain leave to remain ….He could establish seven years presence by reference to [his son’s] seventh birthday on 10th April this year.” So the judge’s seventh birthday gift to the little boy was to confirm him and his sister in state custody, never to see their parents again.

It needs hardly to be said that people like these Tamil parents aspire to settle in the UK or other rich countries above all to give their children a better future. But the judge calls this emotional abuse of the children. The cruelest line of her judgment comes at the end when she says, “I accept that the parents love the children. The father’s breakdown in closing to my mind was genuine.”

This is the unspeakable manner in which illegal immigrant children and their parents have been treated for years all over the First World. I daresay there can be legitimate objections against illegal immigrants taking advantage of laws to get benefits and naturalization. But summary deportation would be kinder than the current insidious pressure tactics. The Yusuffs are pleading for their children to be sent to relatives in India. The only logic for the children to be kept in the UK at taxpayer expense is to send a strong message to aspiring immigrants. Unless the public support the Yusuffs, the UK will not relent.

Instead of staying focussed on the issue of separated children, media on the Left attacked the First Lady Melania Trump over her choice of jacket when en route to visiting separated migrant children and media on the Right ran a campaign questioning John Moore’s photo which had became a symbol of the worldwide protest against child separation at the US border.

This is the human tragedy that is being played out while big media and public intellectuals have abstract debates over immigration, and, more recently, over the First Lady’s choice of jackets. Let us hope that at some point public attention will also turn to the underlying problem which is of protecting all children – immigrant and native, illegal and legal – from arbitrary and motivated state action of all forms and in all countries.

Suranya Aiyar is a New Delhi-based lawyer and mother who runs this website, critiquing the role of governments and NGOs in child policy.