3 Children and the residence test
United Nations Convention on the
Rights of the Child
14. The Children's Society, Refugee Children's
Consortium and Coram Children's Legal Centre expressed concern
in evidence to our original inquiry that the Government had not
considered the compatibility of the proposed residence test with
children's rights under the United Nations Convention on the Rights
of the Child (UNCRC). In paragraphs 92-93 of our original report,
we concluded:
"We
are concerned that the Government has not given full consideration
to its obligations under the second article of the UNCRC…we
do not consider that the Government's argument that cases can
always apply for exceptional funding is sufficient to meet UNCRC
obligations or the Government's access to justice obligations."[13]
15. In their Response to our original report,
the Government said:
"The Government maintains that its reforms
are compatible with all relevant human rights standards, including,
for example, the United Nations Convention on the Rights of the
Child."[14]
16. In giving evidence to us recently, Dr Maggie
Atkinson, the Children's Commissioner for England and Wales, explained
how, despite the Government's response and subsequent amendments
to the residence test, she did not believe the residence test
was compatible with the UNCRC. She said:
"the residence test is not compliant […]
there are articles in the convention that absolutely guarantee
the child—any child—the right of access to legal representation
and to a legal friend and/or then in the more formal stages if
the proceedings go so far as the courts."[15]
17. The Children's Commissioner went on to tell
us that her Office had intervened in a legal challenge to the
lawfulness of the residence test brought against the Lord Chancellor
by the Public Law Project,[16]
to argue that the residence test will not be compliant with the
state's duties under both the UNCRC and the European Convention
on Human Rights (ECHR). In her intervention, the Children's Commissioner
argued that the proposed residence test risked breaching a number
of children's rights protected by the common law, the Human Rights
Act, EU law and the UNCRC:
"36. The [Office of the Children's Commissioner]
submits that in any administrative or judicial proceedings in
which a child's best interests fall to be determined the following
rights arise:
(a) the child's substantive right to have
his or her best interests treated as a primary consideration;
(b) the adjectival, procedural right to receive
advice and assistance so as to ensure the first right is practical
and effective, not theoretical and illusory; and
(c) where legal proceedings are contemplated,
the right of access to justice which also brings with it a right
to legal representation.
37. Those rights may be derived from common law
(as developed in the light of the UNCRC), under the HRA (through
Articles 6 or 8) or (where within scope) EU law. Articles 6 and
8 must be read in the light of the UNCRC: see for example Neulinger
v Switzerland [GC] [2012] 54 E.H.R.R. 31, at [132,135] […]
Applying the Airey test; (a) the child's bests interests
are of 'primary importance'; (b) the complexity of legal proceedings
is such that, (c) coupled with the child's age and immaturity,
he or she cannot be expected to act without representation […]
[…] The OCC submits that the UK's introduction
of a Residence Test creates an unacceptable risk of a breach of
the rights set out in paragraph 36. There is a 'serious possibility'
or a 'significant risk that such a breach will arise'."
[17]
18. Anita Hurrell, on behalf of Coram Children's
Legal Centre, echoed the concerns of the Children's Commissioner.
Coram Children's Legal Centre, part of the Coram group of charities,
provides "free legal information, advice and representation
to children, young people, their families, carers and professionals,
as well as international consultancy on child law and children's
rights".[18] Anita
Hurrell set out the three Articles of the UNCRC with which Coram
Children's Legal Centre considers the residence test to be incompatible.
She told us:
"We are concerned that the residence test,
as it has been set out, including the exemptions, is not in compliance
with the UK's obligations to children under the UN Convention
on the Rights of the Child. We would particularly highlight Article
2, which has been mentioned, on discrimination; Article 3, which
states that children have the right to have their best interests
treated as a primary consideration in all actions that affect
them; and, in particular, Article 12, which states that children
shall be provided with the opportunity to be heard in any administrative
and judicial proceedings. We do not see how children, as a class
of persons, will be able to have those rights realised if the
residence test in its current form comes into effect."[19]
Article 12 of the UNCRC
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
|
19. We put these concerns to the Parliamentary Under-Secretary
of State at the Ministry of Justice with responsibility for the
Courts and Legal Aid, Mr Shailesh Vara MP. He repeated the Government's
assertion that the residence test is compatible with the UNCRC.
He said:
"We are confident that we will be compliant with the
United Nations Convention on the Rights of the Child. I accept
that there is a difference of view here, but it is our view that
we are in compliance."[20]
20. We have listened to the Government response and have carefully
considered the compatibility of the residence test with Articles
2, 3 and 12 of the UNCRC. We have also noted the Children's Commissioner's
intervention in the case brought by the Public Law Project, in
which the Court's judgment is awaited. We regret that the Government
have not provided a detailed reasoned explanation of why there
is no risk of incompatibility with the specific terms of the particular
UNCRC rights in play.
21. If children are unable to satisfy the
residence test and are therefore not eligible for civil legal
aid, we agree with our witnesses that children will rarely be
capable of representing themselves in legal proceedings in which
their best interests are at stake, as they may be unable to access
a litigation friend or a legal representative and will not have
the capacity to represent themselves effectively. While the Minister
made clear that other arrangements and bodies do exist to assist
children in this regard, we were not made clear in oral evidence
from the Minister what these other arrangements or bodies were
that can practically assist children in this situation. We request
that the Government provide Parliament with information about
what these arrangements and bodies might be.
22. We cannot see any way in which this proposal
can be compatible with the UK's obligations to ensure that the
views of children are heard in any judicial or administrative
proceedings affecting the child under Article 12 UNCRC, or to
ensure that the child's best interests are a primary consideration
in such proceedings under Article 3. To comply with those obligations,
which are owed to all children in the UK regardless
of their residence or other status (Article 2), legal aid must
in principle be available to make the child's rights under Articles
3 and 12 practical and effective for those who have no recourse
to other appropriate means. As long as children have a legal right
to take part in legal proceedings which affect their interests,
it is wrong in principle, and unlawful, to make it more difficult
for a particular group of children to exercise that right.
23. We conclude that the residence test will
inevitably lead to breaches by the United Kingdom of the United
Nations Convention on the Rights of the Child, and in particular
Articles 3 and 12, in individual cases, because it will in practice
prevent children from being effectively represented in legal proceedings
which affect them. As a result, we urge the Government not to
seek affirmative resolution of this draft instrument before Parliament,
and to reconsider their position.
Policy justification
24. In Transforming legal aid: Next steps,
the Government gave the following policy justification for the
residence test:
"The purpose of this proposal is to ensure
that only individuals with a strong connection to the UK can claim
civil legal aid at UK taxpayers' expense."[21]
25. In our original report we looked at whether
the Government's justification for the residence test could be
applied to children. We concluded:
"The Lord Chancellor's justification for
the policy, namely contribution, in particular through the payment
of tax, cannot apply in relation to children. Nor can it be said
that children have chosen to make their home in the United Kingdom."[22]
26. In their response to our original report,
the Government repeated their justification for the introduction
of a residence test:
"the Government continues to believe that
individuals should, in principle, have a strong connection to
the UK in order to benefit from the civil legal aid scheme. The
Government believes that a requirement to be lawfully resident
at the time of applying for civil legal aid and to have been lawfully
resident for 12 months in the past is a fair and appropriate way
to demonstrate such a strong connection."[23]
27. We pursued the Government's justification
of this policy in relation to children with the Minister. He replied:
"The justification is that they should have
a strong connection to the country, which can include the factors
that you mentioned: tax and other contributions."[24]
28. We also questioned why the Government did
not consider all children to be vulnerable. The Minister said
"There are categories of vulnerability. Some children are
more so, and we have tried to identify those and to cover those
in the exceptions"[25].
29. We asked the Minister how much it would
cost if children were excluded; and how much the taxpayer would
save if they were not. He was unable to provide with figures an
estimate because the Ministry of Justice does not have any data
on the question.
30. We were unable to ascertain what would be
the precise cost to the taxpayer of excluding all children from
having to satisfy the residence test because the Government "has
not historically kept a list of nationalities"[26]
so they "simply do not have the data from which to extract
the information"[27].
The Government was also unable to provide us with an indication
of the number of children who will be affected by the residence
test, or the costs saving that will be made by applying the residence
test to children.
31. We also raised concerns with the Minister
regarding the 'knock-on' effect of these savings to the costs
of other services. For example, if children are unrepresented
in court proceedings or turn up to a court office unrepresented,
the case may take longer and the Courts Service could end up incurring
more costs. The Minister said that "[t]he judiciary is of
course independent, but nevertheless we work closely with it,
and we will of course be keeping a very beady eye on how this
is impacting".[28]
32. The Government's principal justification
for this policy is to ensure that only individuals with a strong
connection to the United Kingdom can claim civil legal aid at
United Kingdom taxpayer's expense. They do not, however, know
the size of potential savings or the number of children that may
be affected. We are concerned by the Government's failure to provide
any data which would support their position that excluding all
children from the residence test will result in a cost to the
tax-payer. We request that the Government take steps to collate
this data and estimate the cost to the tax-payer. Furthermore,
we are concerned that any saving in this area could result in
an increase in costs for the Courts and Tribunals Service as it
is forced to deal with cases concerning unrepresented children.
We remain concerned at the lack of a robust savings justification
for not exempting all children from the residence test.
33. We also remain unconvinced that the Government's
second justification, that individuals should have a strong connection
to the United Kingdom to benefit from the civil legal aid scheme,
can be applied fairly to children. Children cannot be argued to
have chosen to make the United Kingdom their home, nor can they
be expected to make a "contribution" to the UK, whether
by paying tax or otherwise. We conclude that this policy justification
cannot be applied to children and we believe that all children
fall into the category of "potentially vulnerable".
On these grounds, we recommend that all children should be exempt
from the residence test.
Exceptional funding and our concerns
relating to its adequacy
34. Under section 10 of LASPO, individuals who
do not pass the residence test would be able to apply for "exceptional
funding". Exceptional funding is granted by the Legal Aid
Agency. The Government have relied on the availability of exceptional
funding to argue that civil legal aid would continue to be provided
in any individual case where failure to do so would breach the
individual's rights to legal aid under either the European Convention
on Human Rights (ECHR) or European Union law.
35. In giving evidence to us, the Minister explained
the Government's commitment to exceptional funding in order to
comply with international obligations. He said:
"I believe that we are in compliance with
our international obligations, and indeed there are also the exceptional
funding criteria. We must not overlook those. Where a particular
party feels that they have not been given legal aid, they can
apply for exceptional funding. That exceptional funding goes specifically
to the heart of our international obligations, both in terms of
Article 6 and in terms of our EU obligations."[29]
36. In our original report, we explored whether
the exceptional funding regime was working in practice. We highlighted
particular concerns with the small number of applications for
exceptional funding, and the very small number of grants obtained
(only 1% of applications in non-inquest cases). We concluded that:
"We do not have sufficient evidence to draw
conclusions as to whether the lack of funding to complete what
is a detailed and lengthy application process is creating a chilling
effect on the numbers of applications". However we also
concluded that "The evidence we have received […] strongly
suggests that the scheme is not working as intended […] We
therefore conclude that the Government cannot rely upon the scheme
as it currently operates in order to avoid breaches of access
to justice rights".
37. In response to these concerns in our original
report, the Government said:
"The Government continues to believe that
the exceptional funding scheme is working effectively but accepts
that the number of applications and grants are much lower than
originally estimated."[30]
38. Since the publication of our original report
and the Government's response, a judgment has been handed down
by the High Court on the availability of exceptional funding in
immigration cases.[31]
This judgment found that the Lord Chancellor's Guidance is unlawful
because it is based on an incorrect understanding of the effect
of ECHR case-law, and the Director's policy towards granting exceptional
funding in immigration cases (which is based on the Lord Chancellor's
Guidance) has therefore been too restrictive.
39. The recent decision of the High Court
that the approach to exceptional funding in immigration cases
is too restrictive and therefore unlawful raises concerns as to
whether the exceptional funding regime is in practice ensuring
that all individual cases are being funded in those instances
where failure to do so would be a breach of the European Convention
on Human Rights or European Union Law. In the light of these concerns,
we reiterate our conclusion from our original report: we do not
consider that the exceptional funding scheme is operating in such
a way as to guarantee that legal aid funding will always be available
whenever Article 6 ECHR requires it, and we therefore conclude
that the Government cannot at this stage rely upon the scheme
to ensure that the residence test is ECHR compliant.
40. If the exceptional funding regime is not
working as intended, we are particularly concerned about some
groups of children who may be affected by the residence test and
we urge the Government to consider four such groups of children:
unaccompanied children; undocumented children; children with special
educational needs or disabilities; and section 17 and 20 Children
Act 1989 cases. We are also concerned about how children will
practically be assisted to complete the forms necessary to make
an application for exceptional funding.
UNACCOMPANIED CHILDREN
41. In our Report on the human rights of unaccompanied
migrant children and young people in the UK, published in June
2013,[32] we considered
the subject of legal aid and representation for unaccompanied
migrant children and young people. In paragraph 234, we recommended:
"The Government should pay particular attention
to the impact of withdrawing legal aid for non-asylum immigration
cases involving unaccompanied migrant children when reviewing
the changes to legal aid entitlement effected in the Legal Aid,
Sentencing and Punishment of offenders Act 2012. The Government
should give serious consideration in any such review to the cost-benefit
case for providing legal aid to all unaccompanied migrant children
involved in immigration proceedings."[33]
42. Since the publication
of our original report in December 2013, the Government published
their response to our Report
on unaccompanied migrant children. In that response, the Government
said:
"There has also been a commitment to Parliament
to review the impact of withdrawing legal aid for onward appeals
in immigration cases in general. This review will start in April
2014, one year after implementation. We will respond to these
reviews, and any other practical issues relating to legal advice
for unaccompanied migrant children identified, on the basis of
the evidence gathered."[34]
43. We understand that a review is underway.
Coram Children's Legal Centre however expressed concerns with
regards to children who are granted limited leave to remain in
the United Kingdom. These concerns regard active proceedings,
and clarification over the position of children granted limited
leave. Anita Hurrell told us:
"Our specific concern about children is
that if they are granted limited leave, or discretionary leave
as it used to be known, until the age of seventeen and a half,
which most of them are—47% in 2013—they will face
a time gap in which they cannot get access to civil legal aid
after they have been granted that leave. For example, if they
were to have an ongoing age dispute case during the process of
claiming asylum, if they are not successful in their asylum claim
and are refused asylum but granted another form of leave, they
potentially face a time gap. We are very concerned about that,
because they would then have to wait and we do not know what would
happen to any ongoing proceedings."[35]
44. Anita Hurrell went on to explain Coram Children's
Legal Centre's concerns with the drafting of the statutory instrument
that will introduce the residence test and the effect on any ongoing
proceedings for children granted limited leave. She said:
"It is not clear to me from the way the
draft order looks whether the proceedings would have to stop or
whether there would be provision for any ongoing case to continue.
Even if ongoing cases did continue, what would then happen to
a new case if the age dispute arose only at that point later?
That is a technical but quite serious concern with the way the
exemptions work as they are currently drafted."[36]
45. In our original report, we raised concerns
that:
"refugees may be unable to access civil
legal aid during their first few months of lawful residence in
the UK. This is particularly worrying as this is the time that
many refugees may need assistance in securing services they are
entitled to, which could include the twelve month package of intensive
support that the Lord Chancellor mentioned in relation to Gateway
Protection Programme refugees."[37]
46. We also recommended that "any proposal
excludes refugees as well as asylum seekers, in order to ensure
that the UK's international obligations are met". The Gateway
Protection Programme resettles the most vulnerable refugees in
the UK and is operated in partnership with the United Nations
High Commissioner for Refugees. It offers a legal route for up
to 750 refugees to settle in the UK each year, and is separate
from the standard procedure for asylum. This group of refugees
would not have been able to satisfy the residence test until 12
months after their arrival in the United Kingdom as they were
not asylum seekers. We are pleased that the Government have
accepted this recommendation to exclude refugees from their proposal.
47. We asked the Government about unaccompanied
children, who are similar to resettled refugees, and whether the
Government would consider exempting them from the residence test.
Mr Vara said:
"A lot of unaccompanied children will probably
qualify for asylum status or refugee status, which is also exempt,
so I would have thought that many of the categories are already
covered by the exemptions. To the extent that they are not, as
I said earlier we believe that people should have a strong connection
to the UK. If a child is unaccompanied, there are many other avenues
by which redress can be pursued for them."[38]
48. We also asked the Government about concerns
raised by Coram Children's Legal Centre regarding children granted
discretionary leave being unable to satisfy the residence test
until twelve months after they had arrived in the United Kingdom
and the similarity of this situation to that which raised our
concerns regarding resettled refugees. We also asked for clarification
regarding whether cases would continue to be funded if a child's
asylum status changed whilst the case was ongoing - for example,
in an age dispute. The Minister clarified that "[i]f their
status changed, so would the decision on legal aid because the
decision is based on meeting the criteria… If they are no
longer asylum seekers, they do not fit the criteria for exemption
and they fall back into the general pool of those people who do
not qualify".[39]
49. The Government's proposal gives little
consideration to the problem of access to justice that the proposal
creates in relation to children. These include the potential complexity
and urgency of the cases for which children would need advice
and representation and the need to find a litigation friend to
assist the child with their proceedings because they have become
separated from their families. Children who have not been granted
asylum but have been granted limited leave to remain are not exempt
from the residence test. However, if social services unlawfully
disputed the child's age at this point, the child would be unable
to access civil legal aid to bring a judicial review. We do not
agree that withdrawing funding from a case that could be 90 per
cent complete is a valuable use of public money, and we again
raise concern that this could have a negative 'knock-on' effect
on the Court Service.
UNDOCUMENTED CHILDREN
50. The proposed residence test does not make
any provision for undocumented children. The residence test requires
legal aid providers to obtain documentation to prove an individual's
residency so that they might satisfy the residence test. In our
original report, we noted the concerns of several witnesses regarding
children who may be unable to produce documentation. Dr Nick Armstrong,
in evidence to our original inquiry, said that this could include
children who had fled from the family home as a result of domestic
abuse, or children who, for whatever reason, are at risk of being
made street homeless.[40]
We also noted a study
which indicated there were 120,000 undocumented children living
in the UK of whom 65,000 were born to undocumented migrant parents.[41]
We concluded, in our original report, that we did not agree that:
"the Government has considered all groups
of children who could be adversely affected by this test, and
we note that no Child Impact Assessment has been produced. Such
groups of children include children unable to provide documentation
of residence and those who need help to gain access to accommodation
and services."
51. Anita Hurrell, on behalf of Coram Children's
Legal Centre, raised concerns regarding destitute children. She
said:
"Undocumented children in families who might
have been in the UK for a very long time but do not have recourse
to public funds and have not been able to regularise their status—obviously
through no fault of the child—will not have access to civil
legal aid to be able to enforce their rights."[42]
| Anita Hurrell, Coram Children's Legal Centre, provided a case study of an undocumented child:
"We were involved in a case with an infant who was two years-old or so, with sickle-cell anaemia, where it was found that the local authority had acted unlawfully in that it recognised that the child was a child in need and was destitute but it had failed to provide support. That kind of case will not be possible with undocumented children."[43]
|
52. The Minister explained that the Government
have considered our recommendations regarding undocumented children
in our original report and that "[o]ne of the things that
came out of it was the production of evidence. We are looking
to make the assessment of evidence a lot more flexible than perhaps
it was before."[44]
He went on to explain that the Government planned to introduce
a piece of secondary legislation "and with it will be a list
of a lot of the evidence that we require".[45]
Specifically addressing our concerns regarding children who satisfy
the residence test but are unable to produce documentation, he
said that the Government "will try to ensure that if there
is any difficulty in producing documentation, those who genuinely
fit the category of being exempt can be dealt with".[46]
However, the Minister also said "if someone is simply missing
basic documentation showing how long they have been living in
this country, I should like to think that there is some landlord,
a bill from a telephone company or whatever out there"[47].
53. In its 40th Report of Session
2013-14, the House of Lords Secondary Legislation Scrutiny Committee
looked at the Government's statement in paragraph 7.17 of the
Explanatory Memorandum to the residence test.[48]
The Government said there would be "some flexibility"
in the evidential requirements as individuals whose personal
circumstances make it impractical for them to supply evidence
of residency to satisfy the residence test. The Secondary Legislation
Scrutiny Committee noted:
"the MOJ's intention to address the point
but no clear statement about how the flexibility will be applied
is currently available."[49]
54. The Secondary Legislation Scrutiny Committee
also concluded that the Ministry of Justice's statement "indicates
that it is still working some aspects of the policy out and has
not yet decided whether there will be a right of appeal for an
individual refused civil legal aid on these grounds (including
in circumstances where they consider the provider should have
taken a flexible approach to the evidence provided)". That
Committee recommended:
"the MOJ should make a clear statement of
how it will handle appeals against the residence test before this
Order is considered by the House".[50]
55. We are concerned that the Government have
not yet produced guidance on flexibility for the production of
evidence, and that the guidance may not prevent undocumented children
who pass the residence test from being unable to prove they satisfy
the test. We are not persuaded by the Government's argument that
documentation from other sources may make up for the absence of
documentation held by the individual in question. We acknowledge
that the Government intend to introduce flexibility however we
believe that children who are in very vulnerable situations, such
as being street homeless, may have been born in the United Kingdom
and never left, yet they will still be unable to satisfy the residence
test. We do not believe this is the intention of the Government
nor is it consistent with the Government's policy justification
for this instrument.
56. We concur with the House of Lords Secondary
Legislation Scrutiny Committee: we recommend that the Government
introduce the statutory instrument with a list of evidence that
will be required, as well as guidance on the flexibility allowed
and how it will handle emergency appeal situations before any
residence test instrument is debated in either House.
CHILDREN WITH SPECIAL EDUCATION NEEDS
AND DISABILITIES
57. We did not specifically look at children
with special education needs or disabilities (SEND) in our original
report. We have, however, looked into this group of children in
this follow up report in the light of concerns raised by Coram
Children's Legal Centre.
58. There is a two tier system for SEND tribunals:
the Health, Education and Social Care (HESC) Chamber of the First-Tier
Tribunal; and the Upper Tribunal which hears appeals against the
Chamber's decisions. Parents or guardians may appeal to the Special
Educational Needs and Disability Tribunal if they disagree with
the council's decisions about their child's special educational
needs or if they believe a school or council has discriminated
against a disabled child.
59. The applicants for the First-Tier Tribunals
will be a child's parent or guardian on behalf of the child. Anita
Hurrell of Coram Children's Legal Centre explained its concerns
regarding the adult being the applicant rather than the child
with regards to how the residence test will work:
"there is the particular anomaly that the
applicant for civil legal aid at the tribunal is the parent or
guardian, which means that you could have a British child living
with one parent who might be undocumented—we see quite a
lot of cases like that—and so does not have access to civil
legal aid, so they cannot bring an appeal to the tribunal to try
to get redress if they feel that their child's needs are not being
met in the way they should be."[51]
60. Anita Hurrell also said that Coram Children's
Legal Centre was concerned that it is "facing the prospect
of children with special educational needs and disabilities being
unrepresented in administrative and legal proceedings that will
determine their support and what the state provides for them".[52]
The Children's Commissioner also echoed these concerns. She said:
"It therefore seems particularly perverse that
there is this fantastic tribunal system, and children can be applicants
in person. Then, all of a sudden, your dad or mum does not pass
the residence test so you cannot be. You have exactly the same
special needs as your counterpart in the same special school and
you have exactly the same case to bring to a tribunal, but somehow
you do not have equality of access."[53]
61. The Children's Commissioner also said that
"we are not talking about a huge number of children, or indeed
huge number of families".[54]
62. We asked the Government whether the residence
test could result in a British child being unable to access civil
legal aid for a SEND case because their parent fails the residence
test. Baroness Berridge explained this concern to the Minister:
"these children with special educational
needs may in fact be British. However, let us say that the parent
is undocumented in this country and the other parent resides overseas.
The resident parent dies and the other parent comes from overseas
and has been resident here for only a couple of months, and thus
fails the residence test. That child will be left without that
particular funding."[55]
63. In response to questions about children in
this position, the Minister replied:
"I think we have to draw a line somewhere.
As I said earlier, these are very difficult decisions. It is a
residency test, and we do believe that people should have a very
strong connection to the UK. I am not persuaded that we should
make another exemption in the case of special educational needs."[56]
64. The Government argue that the number of
SEND cases which will be affected may be very small. We believe
that, even if it is only a handful of cases, these are still important.
We are also concerned that children in this group may be able
to satisfy the residence test but, due to the parent being the
applicant, the child is denied civil legal aid. In our view, this
is not compatible with Article 2 UNCRC which requires the child's
rights to be secured without discrimination irrespective of his
or her parent's national or other status. We again do not believe
this is what the Government intended.
SECTION 17 AND 20 CHILDREN ACT 1989
CASES
65. The Government's proposed residence test,
in Transforming legal aid: Next steps, proposed the following
exclusion for child protection cases: paragraphs 1, 3,7
9,8
10, 15 and 23 of Part 1
of Schedule 1 to LASPO".[57]
66. Under Section 17 (children in need) of the
Children Act 1989, local authorities have a duty to safeguard
and promote the welfare of children in their area, which includes
having a duty to provide specific services and support for children
in need. Children in need are children who are unlikely to achieve
or maintain or to have the opportunity to achieve or maintain
a reasonable standard of health or development without provision
of services from the local authority; the child's heath or development
is likely to be significantly impaired, or further impaired, without
the provision of services from the local authority; or the child
has a disability. Under Section 20 (duty to accommodate a child)
of the Children Act 1989, local authorities have a duty to accommodate
children in need in their area.
67. In our original report, we noted some of
our witnesses' concerns regarding the lack of exemption for Section
17 and 20 Children Act 1989 cases. The Children's Society said:
any 'child in need' cases (Section 17) relating
to the additional care needs of a disabled child or support needs
for homeless families, will not be covered. Equally cases involving
unaccompanied children who are homeless and need appropriate accommodation,
support, care and supervision (Section 20) will not be protected.
68. The Government's response to our original
report, and the subsequent residence test as proposed in secondary
legislation, recognised these concerns. The Government responded:
"Alongside other exceptions for protection
of children cases previously set out in Next Steps there
will be a further exception for sections 17 and 20 Children Act
1989 cases falling within paragraph 6 of Part 1 of Schedule 1."
69. We have subsequently heard concerns with
this response, in particular with the fact that only Section 17
and 20 cases under paragraph 6 of Part 1 of Schedule 1 are excluded
from the residence test. This exclusion does not exclude all legal
remedies, including judicial review. For judicial review, for
section 17 and 20 Children Act 1989 cases to have been included,
the exception would have had to have been Section 17 and 20 cases
under paragraphs 6 and 19 of Part 1 of Schedule 1 of LASPO.
70. Anita Hurrell explained Coram Children's
Legal Centre's concerns to us regarding how this could affect
a child's case. She said:
"I would just highlight the situation faced
by a child advised that they have a meritorious claim and with
a solicitor telling them that they could pursue that claim and
could need an immediate remedy such as some kind of injunction
if the situation that they are living in is very desperate. That
same solicitor is going to be advising the child that they cannot
help them pursue that claim. They are in effect going to be saying
to the child, "You can go to the High Court but you can go
there on your own" […] It is going to be impossible
for children to understand that they have this right but that
it cannot be enforced."[58]
71. Anita Hurrell also raised concerns regarding
the number of matter starts a legal aid provider has and how legal
aid providers may be reluctant to take any case which cannot progress
to a judicial review. [59]
She told us this could result in children "not even able
to access that minimal initial level of advice on those issues".[60]
72. We asked the Government about these concerns
and how it would affect cases where a child had been told they
have a meritorious claim but they would be unable to get legal
assistance to pursue it. The Minister said:
"I think it is important to remember that
judicial review is not the be-all and end-all. We want to be at
a stage where people do not have to make an application for judicial
review […] I have to say that by virtue of having a residency
test, there are going to be categories of person who will fall
out of it."[61]
73. We are confused as to why the Government
excluded certain child protection cases from having to satisfy
the residence test, but did not exclude from the test all legal
remedies including judicial review. Whilst welcoming the funding
of legal advice, we do not understand the justification that it
is a good use of public money to give funding for advice that
cannot be taken through to a judicial review. We are concerned
that children could be provided legal advice on Section 17 and
20 Children Act 1989 cases, only to find that their same solicitor
will at some point no longer be able to help pursue a meritorious
claim.
74. We acknowledge the Government's argument
that they would prefer that people do not have to make an application
for judicial review. However, we believe that it is inevitable
that judicial review will be a necessary remedy in certain cases.
We are concerned that, if the residence test applies, there will
no longer be the risk of a judicial review when a local authority
fails a child in its care. This deterrent effect of a judicial
review encourages local authorities to discharge their duties
properly. Such cases requiring judicial review are of a serious
nature and children should retain legal support.
13 Joint Committee on Human Rights, The implications
for access to justice of the Government's proposals to reform
legal aid, HL Paper 100, HC 766. Back
14
Government response to the Joint Committee on Human Rights: The
implications for access to justice of the Government's proposals
to reform legal aid. February 2014 Back
15
Q 1 Back
16
The Public Law Project is a national legal charity whose aim is
to "improve access to public law remedies for those whose
access to justice is restricted by poverty or some other form
of disadvantage" Back
17
The Queen (on the application of The Public Law Project) v
The Lord Chancellor (Office of the Children's Commissioner intervening)
CO/17247/2013. The case was heard in April and judgment is still
awaited. Back
18
See, http://www.childrenslegalcentre.com/index.php?page=about_us.
Coram Children's Legal Centre is also one of the three national
providers with a Legal Aid Agency contract in education law. Back
19
Ibid. Back
20
Q 13 Back
21
Para 2.11. Transforming legal aid: Next steps Back
22
Para 95. The implications for access to justice of the Government's
proposals to reform legal aid, HL Paper 100, HC 766. Back
23
Government response to the Joint Committee on Human Rights: The
implications for access to justice of the Government's proposals
to reform legal aid. February 2014 Back
24
Q 1 Back
25
Ibid. Back
26
Q 10 Back
27
Ibid. Back
28
Q 12 Back
29
Ibid. Back
30
Ibid. Back
31
Gudanaviciene v Director of Legal Aid Casework and the Lord
Chancellor [2014] EWHC 1840 (Admin) (13 June 2014).We understand
that the Government intends to appeal against the judgment. Back
32
Joint Committee on Human Rights, Human Rights of unaccompanied
migrant children and young people in the UK (1st Report, Session
2013-14, HL Paper 9/HC 196) Back
33
Ibid. Back
34
Government response to the Joint Committee on Human Rights: Human
rights of unaccompanied migrant children and young people in the
UK. February 2014. Back
35
Q 2 Back
36
Ibid. Back
37
Joint Committee on Human Rights, The implications for access
to justice of the Government's proposals to reform legal aid,
HL Paper 100, HC 766 Back
38
Q 16 Back
39
Q 17 Back
40
Q 11 Back
41
Sigona, N. and Hughes, V. (2012) 'No way out, no way in: Irregular
migrant children and families in the UK', ESRC Centre on Migration,
Policy and Society, University of Oxford Back
42
Q 3 Back
43
Ibid. Back
44
Q 18 Back
45
Ibid. Back
46
Ibid. Back
47
Q 18 Back
48
Secondary Legislation Scrutiny Committee, Legal Aid, Sentencing
and Punishment of Offenders Act 2012 (Amendment of Schedule 1)
Order 2014; Licensing Act 2003 (Mandatory Conditions) Order 2014,
(40th Report, Session 2013-14, HL Paper 176) Back
49
Ibid. Back
50
Ibid. Back
51
Q 6 Back
52
Ibid. Back
53
Ibid. Back
54
Q 20 Back
55
Q 21 Back
56
Q 20 Back
57
Para 125, Transforming legal aid: Next steps Back
58
Q 4 Back
59
A matter start is case started under a form of funding called
Legal Help or Controlled Legal Representation where there has
been no previous legal help. Back
60
Q 4 Back
61
Q19 Back
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