Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Children’s Society (LA 74)

Introduction

1. The Children's Society is a leading national charity, driven by the belief that every child deserves a good childhood. We provide vital help to the most vulnerable children, young people and families in our society through a range of services. We work with over 50,000 children each year, supporting them and advocating on their behalf to tackle discrimination or disadvantage in their daily lives. Our services include helping young people to access legal services as well as supporting them through the legal process when no-one else will.

Key messages

1. We believe that different principles should apply to children in an adult legal system, and we propose that all children should have access to publicly funded legal advice and representation when they need it and in cases where their rights are affected. In the UN Convention on the Rights of the Child (UNCRC), children are defined as being below the age of 18 years and as a minimum we would recommend that children under this age should have access to legal help and representation in all the areas of law that are to be taken out of scope in current proposals. According to information provided by the Government, it would cost an additional £10 million [1] annually to protect all under-18s who under the current proposals would become ineligible for support under legal aid.

2. In addition we believe that special consideration should be given to disadvantaged young people between 18 and 25 in recognition that those with civil legal problems are likely to be particularly vulnerable and will lack access to any other financial means such as care leavers, disabled young people, young people with mental health issues or victims of trafficking and exploitation.

3. Legal aid is already limited to those who cannot pay for legal assistance by any other means and thus provides a safety net to ensure protection and equality for the vulnerable and disadvantaged. Taking whole areas of legal matter out of scope will inevitably affect the poorest, most vulnerable and marginalised families. This includes children who will suffer as a knock on effect of limited access to justice for their parents or carers, whose decisions will impact on them. This will be particularly important in areas such as housing, welfare, immigration and education where children are affected by their parents’ lack of financial resources and ability to navigate the legal system. This may be hindered for a number of reasons such as parental disability, language barriers, poverty and mental health issues.

4. There is an economic imperative to facilitate good quality legal advice and representation for children and young people to ensure their safety, well-being and life chances in the long-run. Research has shown that children and young people are particularly susceptible to the negative economic and social impacts of their civil justice problem, impacts which result in longer term costs to public bodies [2] . Good quality legal advice effectively resolves legal issues for children, young people and families. An effective triage system which can diagnose legal issues with specialist support early on can help prevent issues from escalating in the future.

A different approach to children is needed

5. Children have evolving levels of capacity, are still maturing, and are not always able to understand the full consequences of their decisions and actions. These physiological and psychological differences should make a major rather than a token difference to how society responds to children within the legal system and elsewhere.

6. Research has established that young people have the lowest levels of ‘legal capability’ [3] . The transition to adulthood is a particularly challenging time for some young people when support provision stops and young people are left on their own to deal with the consequences. This is particularly the case for many disabled young people, care leavers, young separated migrants and those with mental health issues. We are concerned that these young people, who are over 18 but are nevertheless vulnerable and less able to access justice, will be further marginalised under proposed changes.

7. The Government has recognised that children need special consideration [4] . Lord McNally stated in Lords questions on legal aid that "As far as possible, our intention is that, where children are involved, legal aid will still be provided." [5] While in the Bill there is provision for "children who are parties to family proceedings", and "unlawful removal of children from the United Kingdom" by their parents, legal aid is not to be provided if they are party to legal proceedings generally, for example, in immigration, welfare, housing, education and clinical negligence cases.

Children not protected under current proposals

8. Based on Legal Services Commission’s data for the 2009-10 closed cases, the Government has calculated that around 6,000 children under 18 (or 15% of the current case volume for this age group worth £10 million in costs) will be out of scope for receiving legal aid in civil cases. In addition, 69,000 young people aged 18 to 24 (or 56% of the current case volume for this age group worth £40 million in costs) will not be eligible for legal aid if the proposed changes go through [6] .

9. The Justice Minister has stated that for cases that will be excluded from the scope of the civil legal aid scheme, there will be a safety net in the form of the exceptional funding scheme. This would come into play if not giving legal aid would breach individual rights under the Human Rights Act 1988 or European Union law. However, the Government has not published details of the full scope of the new scheme or how it will function. The impact assessments state that the Government anticipates that only 5% of excluded cases for education will gain exceptional funding, and no cases for immigration [7] . However according to the Equality Impact Assessment the Government estimates that 11% of the clients affected by bringing immigration out of scope will be children and young people under 25 which is equivalent to over 5,600 cases [8] . Although the data has not been provided, it is likely that a significant number of these young people will be particularly vulnerable: they will include separated children, care leavers, children who are victims of trafficking, young people with mental health issues and disabilities.

10. If the Government does intend to process significant numbers of cases through the exceptional funding route, new arrangements are urgently needed to ensure that this does not result in a slower and costlier process or worse still, that these cases will simply not receive legal aid funding. This would be detrimental to children.

Incomplete assessment of impacts

11. The Government has neglected to estimate the full economic and social impacts of the proposals to reform legal aid. The impact assessments published alongside the Government’s response to the legal aid consultation do not include analysis of evidence on the link between providing legal aid and positive social outcomes [9] . This means that estimates of the longer term negative impact on individuals and Government finances, resulting from greater negative social outcomes, have been omitted.

12. In addition the Government has not considered the specific impact on children and young people [10] . Whilst the Equality Impact Assessment considers the impact on different age groups, the assessment excludes cases relating to children under 16 years [11] . The Government’s literature review of litigants in person does not include information on children and young people acting as litigants in person. However the general evidence suggests that " litigants in person tend to be younger, and have lower income and educational levels, than those who obtain representation " and could face problems in court, such as understanding evidential requirements, identifying legally relevant facts and dealing with forms. Furthermore, " the weight of the evidence indicated that lack of representation negatively affected case outcomes" [12] . There are clear evidence gaps here, particularly in relation to children, which we urge the Government to consider further.

13. Furthermore the Government has not taken into account the impact on children’s rights under the UNCRC, despite earlier this year stating its commitment to giving " due consideration to the UNCRC Articles when making new policy and legislation" [13] .

14. We also believe that the changes are in conflict with the Government’s obligations to children and young people in relation to the child-friendly justice guidelines adopted by the Committee of Ministers of the Council of Europe on 17 November 2010 [14] . These guidelines apply to all domestic courts and tribunals, and aim to ensure that in legal proceedings, the rights of children, including the rights of information, to representation, to participation and to protection, are fully respected. The following paragraphs of the guidelines are particularly relevant:

"35. Any obstacles to access to court, such as the cost of the proceedings or the lack of legal counsel, should be removed.

37. Children should have the right to their own legal counsel and representation, in their own name, in proceedings where there is, or could be, a conflict of interest between the child and the parents or other involved parties.

38. Children should have access to free legal aid, under the same or more lenient conditions as adults.

42. In cases where there are conflicting interests between parents and children, the competent authority should appoint either a guardian ad litem or another independent representative to represent the views and interests of the child."

Separated children and young people in the immigration system

15. Although we welcome the retention of asylum cases within the scope of legal aid, taking immigration cases out of scope will have a detrimental impact on children, including for those who have are seeking leave to enter or remain in the UK on human rights grounds such as Article 8 (the right to private and family life). We believe this will be particularly problematic for separated children and young people, including victims of trafficking and exploitation.

16. When unaccompanied or separated children (under 18) apply for asylum they are usually [15] refused refugee status or Humanitarian Protection but are generally granted Discretionary Leave to remain in the UK either until the child reaches 17½ years of age; or for a period of 3 years [16] . This is in recognition of their vulnerability and that there are no adequate reception facilities for them in their country of origin. An application for further leave, and any appeal against a refusal, may be required well before the child is 18 years of age.

17. The safety or welfare of a separated child if returned may or may not raise concerns under Article 3 of the European Convention on Human Rights (the prohibition of torture and inhuman or degrading treatment or punishment), for example, but it will be likely to raise issues under Article 8. It may also include claims which bring into consideration the UK Border Agency’s obligations under the UNCRC and its statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children. Limiting legal aid to asylum claims would preclude children in immigration cases from advice and assistance in significant legal proceedings concerning an unaccompanied child’s entitlement to remain in the UK and the UK Border Agency’s obligations towards that child.

18. These cases will include children who have come to the UK at a young age but may have been abandoned by their carers or are in the care system without a clear immigration status; children who may have been abused, neglected or exploited by their carers including for the purposes of sexual or domestic servitude (see Hidden Children [17] report). Without publically funded legal support, many of these will be made vulnerable to further exploitation in order to raise funds to pay for legal help or be at risk of returning to an unknown country where they have no family or support networks, and where their safety and welfare may be at risk.