Conclusions and recommendations
Children and the residence test
1. 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.
(Paragraph 21)
2. 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 (Paragraph 22)
3. 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.
(Paragraph 23)
4. 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. (Paragraph
32)
5. 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.
(Paragraph 33)
6. 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.
(Paragraph 39)
7. 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.
(Paragraph 40)
8. We are pleased that the Government have accepted this recommendation to exclude refugees from their proposal.
(Paragraph 46)
9. 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.
(Paragraph 49)
10. 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.
(Paragraph 55)
11. 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.
(Paragraph 56)
12. 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.
(Paragraph 64)
13. 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.
(Paragraph 73)
14. 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.
(Paragraph 74)
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