Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Children’s Legal Centre (LA 51)

A. About the Children’s Legal Centre

1. The Children's Legal Centre (CLC) is a unique, independent national charity staffed with experts on law and policy relating to children and young people. The Centre works in the UK and abroad to promote the implementation of children’s rights through the provision of direct legal services, the publication of free legal information online and in legal guides, research and policy development, law reform and training and consultancy. Founded in 1981, the CLC has almost 30 years experience in providing legal advice and representation to children, their parents and carers and professionals throughout the UK . The CLC is funded by grants from central government, UNICEF, charitable trusts, and LSC contracts.

B. Summary of submission

2. The Children’s Legal Centre (CLC) is extremely concerned that the Legal Aid, Sentencing and Punishment of Offenders Bill, if passed in its current form, would leave many vulnerable children and young people unable to access legal services to enforce their rights and gain access to services and support that they need and to which they are legally entitled.

3. We have endorsed the submissions to the Public Bill Committee by Just Rights (the campaign for legal services for children and young people) and the Refugee Children’s Consortium (which the Children’s Legal Centre currently chairs). It is our view that children and young people should not be denied access to legal services in any area of scope, and we support the submission by Just Rights that children and young people aged under 25 should be a distinct category within the ‘included’ cases in Schedule 1; and that children and young people under 25 should always be treated as ‘exceptional cases.’

4. One of our main areas of work is the provision of legal services on education and in private family law matters, and we feel it is necessary to submit evidence specifically on these issues. Currently, children must rely on parents or carers to enforce their rights or protect their interests in these areas. Where parents are denied access to legal services, therefore, children may be unable to ensure that their rights are protected.

5. We therefore believe that legal services for education matters should not be restricted to matters concerning special educational need and that section 2 of Schedule 1 should be amended to include ‘civil legal services provided in relation to matters concerning special educational needs; school exclusions; school admissions; bullying in the field of education; refusal to provide education; and claims for negligence in the provision of education.’

6. It is also our view that Schedule 1 of the Bill should be amended to include legal services for parties in private family law matters in cases which relate to the care of children by adults.

C. Removal of legal aid for education matters (except special educational needs)

7. The CLC is extremely concerned about the proposal in the Bill to remove access to services funded by legal aid for education matters (except for special educational needs). We agree that legal services for special educational needs (SEN) matters should remain in scope. The SEN system is complex and difficult to negotiate, and many parents or carers will require access to legal services that they may not be to afford without legal aid funding, to secure their child’s rights to a suitable education.

Proposed amendment to the Bill

8. In our view, Schedule 1, section 2 should be amended accordingly:

Schedule 1

Education matters

2(1) Civil legal services provided in relation to the following matters: special educational needs; school exclusions; school admissions; bullying in the field of education; refusal to provide education; and claims for negligence in the provision of education.

Arguments in favour of this proposed amendment

Objective importance of legal services for educational matters

9. The Bill currently excludes legal services for all education matters, with the exception of SEN, from legal aid funding. This works on the presumption, as set out in the government’s Green Paper, Proposals for Reform of Legal Aid in England and Wales, that education matters are not sufficiently objectively important to attract legal aid funding. We disagree with this proposition. The removal of legal aid funding for legal services in all education matters, with the exception of special educational needs, will have an extremely detrimental impact on children, young people and families and will mean that many children will be unable to enforce their right to a suitable and appropriate education. Lack of access to education can have a very damaging impact on children and young people, impairing their ability to develop, achieve, and gain important life skills and will increase ‘downstream’ government costs in other areas, such as welfare benefits, community care and criminal justice.

10. For example, legal aid is currently available for legal services in appealing school exclusions. The decision to permanently exclude a pupil can have both immediate and longer-term damaging consequences to the lives and future opportunities of the child who is excluded. Exclusions are regarded as a significant blemish on a child’s school record, and can impair their future educational achievement. [1] Children who have been permanently excluded from school may experience significant gaps in their education, may receive only part-time education for a significant length of time, [2] or may stay long-term in a Pupil Referral Unit (many of which are under resourced [3] ), upon being unable to secure an alternative placement expediently. [4] In the longer-term, school exclusions can negatively impact on a child’s educational attainment and future aspirations, and result in social exclusion and disengagement. Exclusions can also cause significant costs to society – excluding a pupil may shift the problem of the child’s misbehaviour without confronting or addressing its causes, allowing for problems to persist rather than be resolved. Some students who are excluded never return to fulltime education and are more likely to come into conflict with the law. A report from Crisis stated that children who had been excluded from school were 90 times more likely to end up living on the streets than those who stayed in fulltime education and passed exams. [5] Other research has found that prisoners were twenty times more likely to have been excluded from school. [6] Owing to the serious consequences that permanent exclusions can have on children, their parents and society as a whole, it is highly important for a Head Teacher’s decision to exclude a pupil to be subjected to rigorous and independent review, and for a parent or carer to access legal services to ensure access to justice in this review process.

11. Removing access to legal aid for legal services concerning school admissions will have a disproportionate impact on particular groups of children, including, for instance, refugee and asylum-seeking children. Many refugee and asylum-seeking children find it difficult to secure school places, and in attain a high level of education, despite there being a clear statutory duty to provide suitable full-time education for all children of compulsory school age. This is due to a number of reasons, including: children arriving in the middle of the school year; schools’ reluctance to admit pupils who may have had little or no prior educational experience (and may have a detrimental effect on league performance); local authority reluctance to provide education when there are outstanding age assessment issues or immigration matters; bullying and racism; experiences of trauma and flight; high pupil mobility; and lack of language proficiency. [7] It is essential that legal aid is available to ensure that local authorities meet their obligations and guarantee a suitable school place for all children in their area.

12. Bullying is very common in many schools across England. Research undertaken by Bullying UK in 2006, for instance, found that that, out of a sample of over 2,100 parents, 87% reported that their child had been bullied in the past 12 months, and 77% reported that their child had been bullied more than five times. [8] It is important that children and parents or carers have access to legal services at an early stage on legal avenues of redress for bullying. Bullying can cause many children to miss school for significant periods of time, or to withdraw from attending school completely.

13. It is also important that persons have access to legal services for claims involving school negligence. This is essential for ensuring that local authorities are held to account for failing to meet their duty of care to pupils.

Difficulties for parents and carers in seeking redress without assistance

14. The Bill works on the assumption that parents / casers will be able either to represent themselves in education matters, unassisted, or pay for legal advice or representation. Research and our own experience with parents, shows that parents of children who require legal assistance in relation to education matters will not always have the capacity to represent themselves. Nor will they be able to afford legal advice and representation. For example, presenting a case to an Independent Appeal Panel (IAP) following a school exclusion can also be very difficult for some parents. IAP hearings are generally quite rigid, formal and adversarial in nature. The Council on Tribunal’s (now the Administrative Justice and Tribunals Council) 2003 report on exclusions and admissions appeal panels found that exclusions appeals are "akin to penal proceedings. Hearings are likely to be more adversarial in nature, and involve emotive issues." [9] Given the penal nature of these hearings, it is particularly important "for parents to have access to good quality specialist advice and representation, both in preparation for the hearing and on the day of the hearing to assist with the presentation of their case." [10] Anecdotal evidence collected through the involvement of the CLC in IAP hearings suggests that having access to quality legal advice in preparing for these hearings, given their adversarial nature, can help to ensure a parent’s access to justice in these hearings by enhancing their ability to present a case properly before the Panel. Legal advisors can assist in gathering evidence, preparing submissions and advising parents on relevant laws and guidance.

Education cases are multi-faceted and interrelated

15. Restricting access to legal services in the field of education to special educational needs does not recognise that legal matters in educational provision are inter-related. For instance, children with special educational needs are over eight times more likely to be permanently excluded, [11] and far more likely to be bullied [12] than other students. At the Children’s Legal Centre, for instance, many of our clients who have legal issues in the area of special educational needs (under Part 4 of the Education Act 1996) also require legal services concerning school exclusions. Often, a school exclusion will be related to the school failing to fulfil its statutory obligations and provide adequate support to address a child’s special educational needs. Our educational negligence cases also often concern a school’s failure to meet their duty of care to children with special educational needs. Without amendment, the Bill will result in legal service providers being unable to address a child’s legal problems comprehensively and may lead to problems only being partially solved or going unaddressed. It may ultimately lead to vulnerable children being unable to claim their legal rights to an in education, and to missing the opportunity to develop to their full potential or on missing out on suitable education all together.

Disproportionate impact compared to financial gain in excluding educational matters

16. The negative impact of the removal of legal aid from education matters – an inability for parents to secure the right to suitable and appropriate education for their children – is grossly disproportionate to the gain achieved in removing education from scope – a saving of less than £1 million (a very small proportion of the overall budget). [13] Lack of access to education can have a very damaging impact on children and young people, impairing their ability to develop, achieve, and gain important life skills and will increase government costs in other areas, such as welfare benefits, community care and criminal justice.

Access to legal services for enforcing education rights is required for the government to meet its international obligations

17. Access to legal advice and representation in education matters is essential for the Government to fulfil its obligation in international law to ensure that every child has access to quality education. [14] The right to education must not only be available in legislation; children and parents must be able to access this right, and where it is being denied, they must be able to take legal action to enforce this fundamental right. It is unacceptable for the Government to propose leaving people who are without the independent means to pay for legal services in a position where they will be unable to enforce their child’s right to be educated.

D. Removal of legal aid funding for legal services in most private family law matters

Proposed amendment to the bill: private family law matters

18 Schedule 1 of the Bill should be amended to include legal services for parties in private family law matters in cases which relate to the care of children by adults.

Arguments in support of this proposal

19 It is vital that parents and carers have access to legal advice and representation by in private family law matters relating to children. Disputes invariably arise during a time of relationship breakdown. An effective system for legal advice and, if agreement cannot be reached, an effective and efficient court resolution is in the best interest of families and children. The Bill proposes that funding for legal services in private law family disputes where there are issues of domestic violence, will remain. The Government suggests that by expanding the definition of domestic violence they have made a major concession. In reality, however it is estimated that by widening the definition of domestic violence this will only bring an estimated further 1,000 cases within scope.

20 Parents struggling to cope with the effect of relationship breakdown are often unaware of the effect of the breakdown on children, and are unaware of their rights and responsibilities in law and need firm, timely and common sense legal advice. Without access to this advice, the impact of family breakdown on children will be increased and exacerbated.

21 Also, without legal representation for the parties, Court proceedings will be more acrimonious, take longer and the court system and CAFCASS will be overburdened. The opportunity for negotiation within proceedings will be impaired as feuding parents are unlikely to communicate effectively with one another. Outcomes for children will be worse and it is likely that more children will lose contact with the non-resident parent.

July 2011


[1] Angela Jackman, ‘Exclusions: Keeping the Balance’ (2003) 153 New Law Journal 46.

[2] Neville Harris, ‘Education law: Excluding the Child’ (2000) 12 (1) Education and the Law 31, at p. 37.

[3] Ibid, at p. 38.

[4] Angela Jackman, ‘Exclusions: Keeping the Balance’ (2003) 153 New Law Journal 46..

[5] Crisis, Prevention is Better than Cure (1999).

[6] Social Exclusion Unit, Reducing Offending by Reoffenders (2002).

[7] See for example, Jones, C. and Rutter, J. (1998) ‘Mapping the field: current issues in refugee education’ in Rutter, J. and Jones, C. (Eds) Refugee education: mapping the field, Stoke-on-Trent : Trentham; Refugee Council (2005). Daring to dream: Raising the achievement of 14 to 16 old asylum-seeking and refugee children and young people, available at: http://www.refugeecouncil.org.uk/policy/position/2005/children.htm ; and Doyle, L. & McCorriston, M. (2008) Beyond the school gates: supporting refugees and asylum seekers in secondary school. Refugee Council, Greater London . Available at http://www.refugeecouncil.org.uk/policy/position/2008/inclusiveschools.htm

[8] Bullying UK , Adult Survey Results, available at:

[8] <http://www.bullying.co.uk/adults/National_Bullying_Survey_2006/Adults.aspx>

[9] The Council on Tribunals, School Admission and Exclusion Appeal Panels: Special Report (2003), para. 3.11.

[10] Ibid, para. 3.16.

[11] DfE, Statistical First Release: Permanent and Fixed-Period Exclusions from Schools and Exclusion Appeals in England , 2008/09, 29 July 2010.

[12] See: Bullying Today (2006) Report for the office of The Children’s Commissioner (now known as 11 million);

[12] B is for Bullied (2006), National Autistic Society

[13] Legal Aid Reform: Scope Changes Impact Assessment, p.17. This figure includes the cost of legal aid funding for special educational needs matters.

[14] UN Convention on the Rights of the Child (Articles 28 and 29); International Covenant on Economic, Social and Cultural Rights (Article 13).

Prepared 7th September 2011