Memorandum submitted by National Children's Bureau and the Children's Legal Centre (TRI 5)
All Party Parliamentary Group for Children
Child Impact Statement
Tribunals, Courts and Enforcement Bill (Bill 65)
House of Commons
1. Child Impact Assessment Process
1.1 Child impact assessment involves the analysis of proposed legislation to determine its likely effect on children and young people. Following UK welfare legislation and international conventions, a child is defined as being under 18.
1.2 The Children's Legal Centre and the National Children's Bureau have been funded by the Nuffield Foundation for a period of three years (October 2004 to September 2007) to undertake child impact assessment of up to four Bills per year. Special consideration is given to Bills that directly affect children.
1.3 The child impact process involves the analysis of proposed legislation using the framework provided by the UN Convention on the Rights of the Child ("CRC"), the European Convention on Human Rights and Fundamental Freedoms ("ECHR") as incorporated by the Human Rights Act 1988, and the five outcomes for children established under the Children Act 2004.
2. Overview of the Tribunals, Courts and Enforcement Bill
2.1 This child impact assessment deals only with Part 1 of the Tribunals, Courts and Enforcement Bill (the "Bill"). Parts 2 to 7 of the Bill - which deal with judicial appointments, enforcement, and debt management - have significantly less potential to impact upon the lives of children and hence are not addressed by this assessment.
2.2 Part 1 of the Bill creates a new, simplified statutory framework for tribunals. It does so by seeking to provide for a new unified structure consisting of two new tribunals, the First-tier Tribunal and the Upper Tribunal. The Lord Chancellor is given the power to transfer the jurisdiction of existing tribunals to this new structure. In so doing, the Bill is intended to implement recommendations made by Sir Andrew Leggatt that tribunals should be brought together and administered by a single Tribunals Service.
2.3 As described by the explanatory notes to the Bill, the Upper Tribunal is primarily, but not exclusively, to be an appellate tribunal from the First-tier Tribunal. "Chambers" will exist within the two tribunals to enable appropriate grouping of the many and varied jurisdictions that will be transferred.
3. The Existing Tribunals and Children
3.1 The current array of tribunals mostly exist under their own primary legislation and are administered by the government departments responsible for the policy area in which the particular tribunal has jurisdiction.
3.2 Of the range of present tribunals, three in particular have the potential to impact considerably upon the rights and situation of the child: the Special Educational Needs Tribunal ("SENDIST"), the Mental Health Review Tribunal ("MHRT"), and the Asylum and Immigration Tribunal ("AIT").
3.3 SENDIST. SENDIST was created by the Education Act 1993. Appeals can be brought to SENDIST where the LEA refuses a request to carry out a formal assessment of a child's special educational needs, refuses to issue a statement of special educational needs for a child, or there is a dispute as to the contents of the statement or the named school. SENDIST also considers claims relating to disability discrimination in schools. Children themselves do not presently have a right of appeal to SENDIST and all claims must be brought on the child's behalf by the parent or legal guardian.
3.4 MHRT. The MHRT hears applications concerning persons detained under the Mental Health Act 1983. Upon hearing an application, the MHRT has the power to direct the discharge of a patient where the statutory criteria for discharge have been satisfied. Any detained patient may appeal to the MHRT, including children. However, the age of 16 is used to differentiate with respect to the time period for automatic appeal to the MHRT, being 3 years for persons aged 16 or over, and 1 year for children aged less than 16 years (**this provision remains in place in the new Mental Health Bill).
3.5 AIT. AIT was created under the Nationality, Immigration and Asylum Act 2002 as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The AIT hears and decides appeals against decisions made by the Home Office in matters of asylum, immigration and nationality. Unaccompanied children arriving or left in the UK may appeal to AIT against a relevant decision of the Home Office in the same way as adults.
4. Relevant Human Rights Considerations
In light of the areas for which SENDIST, MHRT and AIT have responsibility, together with the subject matter of the Bill, the following human rights considerations are particularly relevant:
4.1 Rights to Education and Health
Articles 28 and 24 CRC recognise the child's rights to education and to the highest attainable standard of health, respectively. Article 2 of Protocol 1 to the ECHR also protects the child's right to education.
4.2 Treatment in Detention and in the Community
Article 5 ECHR (the right to liberty and security) is relevant to persons of any age with mental health problems who are compulsorily detained, or those who may be made subject to a community treatment order.
4.3 Right to a Fair Trial
Article 6 ECHR provides that in the determination of civil rights and obligations or of any criminal charge, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.
4.4 The Best Interests of the Child
Article 3(1) CRC states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
4.5 The Views of the Child
Article 12 CRC provides that in all matters affecting the child, the views of the child shall be given due weight in accordance with the age and maturity of the child.
5. Impact of the Bill upon Children
5.1 Under Schedule 6 of the Bill, the jurisdictions presently covered by SENDIST and MHRT are intended to transfer to the new First-tier and Upper Tribunals.
5.2 According to the Bill's explanatory notes however, it is intended that AIT - whilst it will share a common administration and the leadership of the Senior President of Tribunals - will not transfer to the new common structure. The reason for this is described as being due to its "unique single-tier structure, in order to cut out abuse of the system". This point shall be addressed further below.
5.3 Nonetheless, the transfer and, indeed, non-transfer, of each of these three existing tribunals to the new structure can be expected to have a potential impact on children in respect of their rights under those provisions of international instruments detailed above. In particular, the role of SENDIST, MHRT and AIT in determining civil rights and obligations engages important aspects of Article 6 ECHR (right to a fair trial), including access to legal aid and equality of arms.
5.4 It should, however, first be noted that it is relatively difficult to anticipate exactly what the precise impact of the proposals might be on children's rights. At present, the Bill relates almost entirely to the administrative structure of the new unified tribunal system. It deals with the members and compositions of the new tribunals (Clauses 1 to 8), the transfer of functions of certain existing tribunals (Clauses 30 to 38), administrative support (Clauses 39 to 43) and oversight of the administrative justice system (Clauses 44 and 45).
5.5 Procedurally, it is clear that a right of appeal is intended to lie on any point of law from the First-tier Tribunal to the Upper Tribunal, and from thereon to the Court of Appeal. However, as would be expected, the Bill does not directly specify Tribunal Procedure Rules. Rather, these are to be drafted in the future by the Tribunal Procedure Committee. As a result, it is envisaged that as each tribunal transfers to the unified structure they will continue with their own procedures and processes until such time as the Tribunal Procedure Committee promulgates procedural rules.
5.6 The protection of the rights of the child - and particularly those rights protected by Article 6 ECHR - will be highly dependent upon the content of these new tribunal procedural rules. Indeed, the envisaged transfer of SENDIST and MHRT to the unified tribunal structure is merely a first step towards any eventual impact upon children. As such, the issues raised in this child impact assessment should be viewed as long-term issues, to be taken into account throughout the continuing process of tribunal reform.
5.7 The Views and Best Interests of the Child
5.8 Not only do children have no independent right to appeal to the existing SENDIST (creating particular difficulties for children looked after by the local authority - as the local authority effectively becomes both the applicant and the respondent), but neither do children have an automatic right to be heard before the tribunal. In practice, if a child does attend the hearing, the tribunal will often seek the child's views, but few children do attend as parents are aware that SENDIST is not an arena in which children are likely to feel at ease. Similarly, in the case of child detained for mental health reasons, whilst the child has a right to present his or her views before the MHRT, this can be challenging in practice, particularly where the child is not accompanied by a legal representative.
5.9 The Bill and the subsequent drafting of tribunal regulations offer the opportunity for a cross-cutting review of the involvement of children in tribunals that determine their civil rights and obligations. Such regulations should codify an obligation for tribunals to hear and give due weight to the views of the child in accordance with the age and maturity of the child.
5.10 The Right to a Fair Trial - Legal Aid and Equality of Arms
5.11 Article 6 ECHR does not provide a general right to legal aid in civil proceedings. However, a right to legal aid may arise in particular cases where, without it, an individual has no opportunity to present their case effectively before a tribunal and so is, in substance, denied access to that tribunal. At present, legal aid is available for the preparation of cases but not for representation before SENDIST; for representation before MHRT; on a limited means and merits basis for representation before AIT, and on a retroactive basis for appeals from AIT.
5.12 Whilst legal representation is not a requirement before tribunals such as SENDIST, the increasingly complex issues dealt with by the tribunal risk making it practically impossible for the case to be presented before the tribunal by parents with the potential for obvious unfairness. On the other hand, according to AIT Guidance Notes, a legal representative of an unaccompanied child must attend the first hearing. If the child is not legally represented, then the Tribunal must take steps to inform the organisations offering pro bono assistance and adjourn the case for legal representation to be arranged.
5.13 The differing availability of legal aid and differences in regulations concerning legal representation will be placed in stark contrast by the transfer of existing tribunals to chambers of the unified First-tier and Upper Tribunal. Again, the opportunity presented by the Bill and the subsequent drafting of regulations should be used for systematic review of the availability of legal aid and the requirement for legal representation in cases involving children. In particular, legal aid should be made available for representation before SENDIST and legal representation should be mandatory before MHRT and AIT where required by the interests of justice and the best interests of the child. The principle of equality of arms - which implies that a party should not be placed at a considerable disadvantage vis-à-vis his opponent - should be explicitly recognised by regulations drafted under the Bill.
5.14 The Right to a Fair Trial - Review of Decision
5.15 Article 6 ECHR does not in itself create an obligation to have an appellate court, although if an appellate court is set up then Article 6 will govern its procedures.
5.16 The current AIT system - which is effectively one tier in form, but two tier in practice - suffers from high numbers of applications to the High Court Administrative Division for reconsideration of AIT decisions, together with applications to the High Court that are, in practice, first dealt with by a Senior Immigration Judge. As noted above, the exclusion of AIT from the unified tribunal system is reasoned by the government on the basis that AIT consists of a unique single tier structure. However, a second tier review nonetheless operates de facto in the form of appeal to the High Court and Court of Appeal. As such, the exclusion of AIT risks perpetuating the mixed approach currently in operation.
5.17 Incorporation of AIT into the First-tier and Upper Tribunal system proposed by the Bill offers one possibility for simplifying the review process of AIT decisions and offering increased protection for human rights and the rights of the child. The government should consider and examine amendments to the Bill that would allow the legal and technical incorporation of AIT into the new mainstream tribunal system.
 Tribunals for Users - One System, One Service. August 2001. London: DCA.
 Schedule 27, Education Act 1996.
 See Explanatory Notes to the Bill. At para 23.
 Clause 22, Bill.
 See Regulatory Impact Assessment to the Bill. At para 1.34.
 Airey v Ireland  2 EHRR 305.
 As per the test in R v Legal Services Commission ex p Jarrett  EWHC Admin 389.
 Adjudicator Guidance Note No 8. Unaccompanied Children.
 Kuopila v Finland (2001) 33 EHRR 25.
 De Cubber v Belgium (1984) 7 EHRR 236.
 Select Committee on Home Affairs, Fifth Report. 13 July 2006.