APPENDIX 9
Memorandum submitted by the Children's
Law Centre
REFORM OF LEGAL AID IN NORTHERN IRELAND
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.
REVIEW OF
CURRENT ARRANGEMENTS
FOR CHILDREN
AND YOUNG
PEOPLE
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.
PRIORITISATION
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.
ADMINISTRATIVE ARRANGEMENTS
We are in agreement with the setting up of an
independent body to administer legal aid subject to impartial
and open public recruitment procedures.
CAPPING OF
BUDGETS
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.
INTRODUCTION OF
STANDARD FEES
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.
FUNDING CODE
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.
CONTRACTING
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.
CRIMINAL LEGAL
AID
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.
QUALITY STANDARDS
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.
NON COURT
BASED SOLUTIONS
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.
SALARIED LAWYERS
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.
CONCLUSION
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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