Select Committee on Northern Ireland Affairs Appendices to the Minutes of Evidence


Memorandum submitted by the Children's Law Centre


  The Children's Law Centre is an independent charity set up in September 1997 to advise children, their parents/carers and professionals about the law relating to children in Northern Ireland and about children's rights from a domestic and international perspective.

  There are currently eight full time members of staff employed at the Centre and one part time member. The staff is comprised of the Director, two solicitors, training co-ordinator, advice line co-ordinator, youth rights worker, researcher, secretary receptionist and part time administrator. We also have six volunteers.

  The Children's Law Centre made a detailed submission to "Public Benefit and The Public Purse". A copy of this submission is attached at Appendix A.[14]

  We thank the Committee for the opportunity to make further representations in light of the government's proposals for reform contained in the decisions paper entitled The Way Ahead: Legal Aid Reform in Northern Ireland.

  Our comments are from a children's rights perspective, grounded in domestic and international law, with special regard to The United Nations Convention On The Rights Of The Child, specifically Article 12 UNCRC which requires State Parties to ensure that children and young people have a voice in administrative and legal proceedings in which they are involved and Article 6 European Convention on Human Rights as incorporated by the Human Rights Act 1998. Any reference to children and young people means a child or young person under 18.

  Article 6 affords children as well as adults the right to a fair hearing in relation to the determination of their civil rights or in relation to the determination of any criminal charge against them. In the recent judgement of T & V v UK the Court indicated that in order for children and young people to have a fair hearing, they must be able to participate in, and understand, proceedings in which they are involved. The ability to apply for and receive legal aid is vital to a child's realisation of Article 6 of the ECHR and Article 12 ECHR. It is of crucial importance to children and young people who rely on legal representatives to bring their case to court and to conduct proceedings on their behalf.


  We maintain our view as set out in our submission to the Northern Ireland Court Service (cf Page 3) that a detailed analysis of the accessibility of the present system to enable children and young people to take cases should be carried out before changes are recommended. There are a number of anomalies which remain in the system and a number of areas of the law relating to children and young people where legal aid is not available at all.

  1.  We recommend that applications for Green Form Advice and Assistance for all children and young people under 18 should not be means tested. Initial advice and assistance for children to investigate their case can be denied at present if the parents' income exceeds the relevant financial limit. This is anomalous, as full civil legal aid can be applied for at a later stage, which is means tested on the child's and not the parents' financial position. This could mean that some children and young people are not able to get their case "off the ground".

  The equality provisions under Section 75 Northern Ireland Act 1998 require due regard being taken of the need to promote equality of opportunity between persons of different age and the present inability to access green form Legal Aid may be challengeable under these provisions.

  2.  There is no legal aid at all at present for representation at school exclusion appeal tribunals, admissions appeal tribunals, special educational needs tribunals, mental health review tribunals or social security tribunals. There are many children and young people whose lives are impacted upon by the decisions made by tribunals and other administrative bodies. It is our view that the lack of legal aid in this area could lead to a breach of the child's right to a fair hearing and the gap in provision should be urgently addressed by perhaps looking at extending the Green Form Scheme or ABWOR Scheme.

  3.  We would also be recommending legislative change to ensure that children can obtain separate representation in contentious private law proceedings or contentious proceedings under the Children (Northern Ireland) Order 1995 and the family homes and domestic violence legislation, as we believe the lack of availability of separate representation in these cases and the lack of legal aid may be in breach of the child's right to a fair hearing and also the child's rights under Article 12 UNCRC.


  1.  Our original comments stand in relation to prioritisation of cases. If priorities have to be set, then this exercise should be carried out by a body independent of the Government. On page 9 of "The Way Forward" it appears that it is conceded that the setting of priorities should be the remit of the new independent administrative body, but on page 20 the document states as follows:

    "The Funding Code will enable the volume of cases approved for funding to be managed by ensuring that funding is allocated to the high priority areas which the Government will establish, following research".

  The onus of responsibility for setting priorities should be clarified and furthermore the powers and duties of any independent administrative body which may be set up should be clearly defined.

  2.  Children's cases cannot be easily compartmentalised into civil family, civil non-family or criminal. We would seek reassurance that children's cases whether in family proceedings, care proceedings, personal injury cases, criminal matters, education cases, judicial review proceedings or human rights and discrimination cases will all be granted priority status under each separate budget heading. Children are very vulnerable when they come into contact with the law and in our experience are wholly dependant on the legal aid system to access the legal system. The Children's Law Centre is the sole not for profit organisation in Northern Ireland which offers free legal advice and representation to children and young people. We only employ two solicitors and an advice line co co-ordinator and we are only therefore able to represent in test cases.

  It is essential that there is a network of legal services in the private sector complemented by those in the not for profit sector for children and young people and that legal aid is accessible in these services for work carried out.

  We recommend that in drafting any Funding Code, particular regard be had to the protection and prioritisation of children's rights.

  In terms of assessing need, a historical evaluation of expenditure on cases is not beneficial. The field of children's rights is emerging and developing rapidly and it is hoped that children's access to the law can be increased and diversified to meet children's needs. It is important that children and young people are able to apply for legal aid, obtain advice and representation and access the legal system to enable them to enforce their rights.


  We are in agreement with the setting up of an independent body to administer legal aid subject to impartial and open public recruitment procedures.


  We note the views of the Government in The Way Forward that concern expressed by consultees about the capping of budgets demonstrated a failure to appreciate the legitimate requirements of Government to allocate funding across a wide range of public services. At the Children's Law Centre, as in most children's organisations, we are all too aware of the finite nature of resources for children and young people's services in education, health and social services, as many of our cases involve the non-provision of essential services for children.

  Our concerns remain in relation to ring fencing of budgets for non-criminal cases and prioritisation of all children's cases. We note the comments on page 18 that criminal legal aid will have to be demand led. In our view the requirements to ensure a fair hearing apply equally to the determination of a child's rights in family/care proceedings as in criminal proceedings and the failure to provide legal aid for a child involved in care proceedings could as easily be a breach of Article 6 ECHR as failure to grant legal aid in a criminal case. The authorities from the European Court of Human Rights are well established in relation to the need for procedural fairness in family/care proceedings. (See for example W v UK 3EHRR 263).

  We strongly recommend that a case on behalf of a child/young person should never be declined on budgetary considerations alone.


  We would recommend widespread consultation with private practice solicitors about the introduction of standard fees.

  Cases involving children as clients are extremely time consuming. It could take three or four times longer to get adequate instructions from a child as it does from an adult. Cases also tend to be complex. For example a child who is not attending school could be experiencing family breakdown leading ultimately to care proceedings. Standard fees do not reflect the skill required in acting for children as clients, nor the responsibility of being in such a role. We would hope that recognition is given to this skilled area of work and to the considerable knowledge and expertise, which children's solicitors have in Northern Ireland and that this is reflected in the standard fees.

  We recognise that the Government wishes to exercise greater "cost control" but as a primary consideration we would like to ensure that the legal profession is paid fairly for specialised and important work in the field of children's law.


  The Funding Code should be subject to a full impact assessment under the equality provisions of Section 75 Northern Ireland Act 1998 and should be circulated for consultation with relevant consultees, including children's not for profit organisations.


  We note on page 20 the comment that the not for profit sector welcomed the introduction of contracting for specialist services. The Children's Law Centre expressed reservations about widespread contracting of legal services in Northern Ireland and had particular concerns that this would restrict rather than increase the provision of legal advice to children and young people by local solicitors, particularly in rural areas. We also expressed reservations about the division of contracting services into diagnostic, formal advice and representation services. It is particularly important for children to have the benefit of continuity of advice and representation throughout the duration of their case. In cases involving children it is necessary initially to establish a relationship of trust and to spend considerable time taking instructions and explaining the legal process itself to the client. Often, for example, in family/care proceedings, cases can be protracted with multiple court hearings, spanning years of a child's life, and changes in adviser could lead to further instability for the child.

  We note on page 21 that The Legal Services Commission will be given a reserve power to purchase contracts and that this will include the work carried out by the not for profit sector. We would welcome further details about these proposals and other examples of areas, which may be contracted out in areas relevant to the law relating to children.


  Given that the Government have indicated that the LSC will take powers to employ salaried lawyers to conduct defence work, we would recommend widespread consultation with The Law Society and with solicitors in this regard.

  There are legal technicalities in relation to salaried lawyers in Northern Ireland, which do not exist in England. These relate to the need to apply for a waiver from the Law Society pursuant to the 1976 Solicitors Regulations as amended. The only two not for profit organisations to have been granted a waiver are the Law Centre Northern Ireland and the Children's Law Centre. The procedure is described at a later stage in this submission.


  We welcome the introduction of The Code of Practice and Quality Standards.

  We have one reservation in relation to the work of the Children's Law Centre. Solicitors in the not for profit sector are not able under current regulations to apply for accreditation to The Children Order Panel, which, is only open to solicitors in private practice. We have asked the Law Society to review their criteria in this regard for solicitors at The Children's Law Centre. We would recommend that if the Government wish to extend the use of salaried lawyers in the not for profit sector, then using membership of pre established panels of solicitors as a pre requisite to being able to carry out certain types of work and apply for legal aid may exclude solicitors in the not for profit sector.

  We would ask you to have particular regard to paragraph 81 and 82, which envisages a panel of practitioners for children's work and discusses linking legal aid standards with schemes already in existence.


  We agree that the Green Form Scheme should be extended to cover qualified advisers in the not for profit sector as well as solicitors, but that these advisers should be subject to quality controls and training requirements.


  We note the Government's intention to extend the use of salaried solicitors in Northern Ireland in the not for profit sector and we would welcome this development. We had pointed out in our original submission that the position in Northern Ireland in this regard differs significantly from England. Our first solicitor joined the Children's Law Centre in September 1997 and at that time it was necessary to make an application to the Law Society for what is known as a waiver under Article 28 of the the Solicitors (Northern Ireland) Order 1976 (as amended and including the Solicitor's (Amendment) (Northern Ireland) Order 1989). The section prohibits the sharing of profits by a solicitor with an unqualified person. In effect it prohibited a solicitor at the Children's Law Centre, a registered charity, from receiving legal aid for a client and giving this money to the Children's Law Centre. The provision does not apply however to a not for profit organisation which can show that they are making legal aid and advice more readily available to persons in need. The application for waiver involved demonstrating in detail the gap in provision, which the solicitors at the Children's Law Centre sought to address, and the specific types of work to be carried out. The service which we provide is very much complementary to that of solicitors in private practice and we were granted a limited waiver to enable us to apply for legal aid and take test cases in January 2000. The Law Centre (Northern Ireland) and the Children's Law Centre are the only organisations in Northern Ireland, to our knowledge, which have been granted a waiver by the Law Society.

  We recommend that this process be carefully reviewed by the Government, as it will affect the use of salaried lawyers in Northern Ireland.

  We also recommend that the eligibility criteria for specialist panels of solicitors be reviewed in Northern Ireland as these may include a requirement that solicitors be in private practice. Our experience is that membership of the accredited solicitors panel (under the Children (Northern Ireland) Order 1995) was withdrawn from one of our solicitors when she moved from private practice into the not for profit sector.


  We recommend that children's rights and children's access to legal advice and representation be given a more central position in the review and that efforts are made firstly to remedy gaps in legal aid provision as they presently exist in the system before moving on to look at protecting children's rights to a fair hearing under the Funding Code and the setting of priorities. There is a duty upon the State to ensure that children are afforded the right to a fair hearing under Article 6 ECHR. It should be a paramount consideration, when reviewing and finalising any funding code and prioritisation of cases, that children and young people are ensured a right to separate representation, where appropriate, in all judicial, tribunal and administrative proceedings which concern them.

14   See the list of unprinted papers, p. xvi. Back

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