Legal aid reform: implications for access to justice


Submission to the Joint Committee on Human Rights inquiry into the implications for access to justice of certain government proposals to reform legal aid

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Introduction

The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international human rights and welfare standards.

Refugee and migrant children are children first and foremost and must be afforded the same rights and protection as any other children in the UK. Article 2 of the UN Convention on the Rights of the Child (UNCRC) clearly states that the rights within the Convention should be respected for all children within the state party’s jurisdiction, ‘without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’.

The Convention also states that the best interests of the child must be a primary consideration (Article 3)1This is a binding international obligation and it is translated into domestic law through section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009 (see the leading Supreme Court judgmentZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4). Where Article 8 ECHR rights are engaged, these are to be interpreted in accordance with the UNCRC. and that States Parties must afford children the right to express their views in all matters affecting them – including in judicial and administrative proceedings (Article 12).2

Article 12 of the Convention provides:

  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’.

Refugee, asylum-seeking and migrant children may often be particularly vulnerable and in need of specific protection and assistance. This is especially the case when they are separated and without their families. In recognition of this, the UN Committee on the Rights of the Child’s General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside their Country of Origin (2005) states that where children are involved in administrative or judicial proceedings they should be provided with legal representation.3CRC/GC/2005/6 1 September 2005, para 36

The need for legal representation for children has also been emphasised by the Council of Europe. The Committee of Ministers of the Council of Europe guidelines on child-friendly justice state that:

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

3.8 Children should have access to free legal aid, under the same or more lenient conditions as adults.4Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, (adopted by the Committee of Ministers on the 17 November 2010 at the 1098th Meeting of the Ministers’ Deputies).Available at https://wcd.coe.int/wcd/ViewDoc.jsp?id=1705197&Site=CM

In the wake of already enormous cuts to civil legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO),5See previous Refugee Children’s Consortium briefings on the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which in the experience of RCC members are having a significant detrimental impact on this group of children and their ability to exercise their rights, the RCC is extremely concerned about the potential impact the current proposals would have on refugee and migrant children, young people and their families. In particular, the Consortium is concerned about the proposed introduction of a ‘residence test’ for civil legal aid and changes to legal aid for judicial review, which threaten access to justice for thousands of children, young people and families. The RCC is concerned about the effects that the proposed residence test would have inpreventing refugee and migrant children and families accessing legal aid in those areas of law where legal aid still exists currently after LASPO, such as public law, community care, special educational needs, homelessness and public, and certain private, law family proceedings.

RCC members work with thousands of refugee and migrant children each year, both children who are separated and children in families, and see the frequency with which these children’s rights are violated in practice. Members of the consortium have considerable expertise in supporting this group and offering a range of support, advice, advocacy and other services to them. RCC members try to resolve the issues faced by these children and families, preferring to find means of resolving problems that do not involve litigation wherever possible. However, from our years of experience of working with this group we know that legal representation is crucial if these children are to be able to realise their rights and solve the problems they face. In many situations legal representation is the only possible means of resolving the problem. Members of RCC who are not lawyers cannot lawfully provide advice on a child or family’s immigration issues (section 84, Immigration and Asylum Act 1999), nor do RCC members who are not lawyers have the necessary expertise to do so. Similarly in other areas of law such as community care or public law, the work that RCC members do relies on being able to refer to legal aid solicitors and we are extremely concerned by the threat to legal aid provision, which in turn threatens our work, our ability to assist our clients, and could place a huge burden on scarce voluntary sector resources.

Lack of a child impact assessment

The government appears to have undertaken no child impact assessment whatsoever in relation to these proposals, which risk effectively cutting children off from access to justice. The government claims that the impact on children has been considered.6While our analysis of equalities impacts is focused on the protected characteristics set out in the Equality Act 2010, we have, throughout, considered carefully the impact of our proposals on vulnerable groups, with particular regard to the best interests of children, as addressed in the relevant chapters, the IAs and the equality statement’ , Transforming Legal Aid: Next steps, Annex B: Response to consultation, para. 475 However, this is not evident in the various documents,7Including Annex F: Equality Statement and the Impact Assessments, particularly the Impact Assessment entitled ‘Cumulative Legal Aid Reforms’ and those with the IA numbers MoJ194, MoJ195 and MoJ198 none of which mentions the best interests of children.

The government has an obligation, under the UNCRC to ‘undertake all appropriate legislative, administrative, and other measures for the implementation of the rights’ contained in the Convention,8Article 4, UN Convention on the Rights of the Child 1989 and to ensure that, in all actions concerning children, their best interests shall be a primary consideration. This fundamental principle applies whether the actions are taken by ‘public or private social welfare institutions, courts of law, administrative authorities or legislative bodies’.9Article 3, UN Convention on the Rights of the Child 1989 This extends to the formation of government policy and legislation, and, according to the UN Committee on the Rights of the Child, child impact assessments are key to fulfilling this obligation. The Committee stated, in its General Comment on ‘general measures of implementation’ that:

Ensuring that the best interests of the child are a primary consideration in all actions concerning children (art. 3(1)), and that all the provisions of the Convention are respected in legislation and policy development and delivery at all levels of government demands a continuous process of child impact assessment (predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights) and child impact evaluation (evaluating the actual impact of implementation). This process needs to be built into government at all levels and as early as possible in the development of policy. 10General Comment No. 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) CRC/GC/2003/5 at paragraph 45.

We believe the impact assessment undertaken by the government in relation to these proposals is wholly inadequate. In relation to the residence test, the impact assessment11Annex K paragraph 5.3.1 states that non-British nationals will be at a particular disadvantaged compared with British nationals. It is the RCC’s view that this is discriminatory under domestic and international human rights legislation. Article 2 of the UNCRC makes clear that that there should be no discrimination between children on the basis of their nationality, ethnicity, social status or other status, or the status of their parents, a provision reiterated in government guidance which states that ‘every child matters even if they are someone subject to immigration control’.12http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act1/change-for-children.pdf?view=Binary

The residence test

While the RCC welcomes the concessions made in the government’s paper Legal Aid Transformation: Next steps published on 5th September 2013, which respond to some of the concerns we raised in our response to the Transforming legal aid consultation in June 2013, we firmly believe that these proposals are still inconsistent with the government’s commitments to protecting all children’s welfare, best interests and rights as set out under domestic and international legislation – regardless of their or their parents’ status or nationality.

The government appears to have been persuaded that some groups are vulnerable, but has only carved out very discrete areas in which they will still be eligible for civil legal aid, leaving in question their commitment to really protecting these groups and their access to justice.

The Refugee Children’s Consortium strongly opposes proposals for limiting legal aid through a requirement that an applicant for legal aid is ‘lawfully resident’ in the UK at the time of applying for civil legal aid and a requirement that the applicant has resided lawfully in the UK for 12 months. We also disagree with the rationale behind the proposal, which is that it will ensure that only those with a ‘strong connection to the UK’ are able to benefit from the civil legal aid scheme. Many of the children with whom we work have a very strong connection to the UK. For some it is the only place they have ever lived, or the only one that they can remember. For example, there are an estimated 120,000 undocumented migrant children in the UK, over half of which (65,000) were born in the UK to undocumented migrant parents13Nando Sigona and Vanessa Hughes, No Way In, No Way Out: Irregular migrant children and families in the UK, COMPAS, University of Oxford, 2012 and will fall foul of the residence test, as a child born in the UK does not automatically acquire British citizenship if their parent/s are not British. In addition, many undocumented children are brought into the UK by a parent or guardian, or through a private fostering arrangement. Some come to the UK lawfully when they are very young with a parent or other relative and grow up here, unwittingly staying beyond the period when their visas or leave were valid. In some cases family relationships break down, leaving children abandoned and left to be taken into the care system.

Where unlawful decisions are made there will be children who have meritorious claims and who have a right in law to challenge the decision but who will effectively be without any remedy because they will be unable to access legal advice or representation to challenge these decisions because they cannot pay for it and because legal aid will be denied to them. This will have a significant effect on refugee and migrant children and families, many of whom rely on legal support to ensure that they are able to access the support from local authorities to which they are entitled and to ensure that they are able to challenge unlawful decisions made about their cases – decisions which determine their futures. Examples of the groups affected include:

Destitute children and families

Destitute children who are considered to be in the UK unlawfully (because, for example, their family’s asylum claim has been refused, or they are the children of overstayers) are already from 1 April 2013 no longer able to get legal aid for any immigration (non-asylum) application they might be able to make, including one based on the right to respect for private and family life (under Article 8 of the European Convention on Human Rights) and their best interests. The new proposals will take away their access to civil legal aid entirely. So for example, if a local authority acts unlawfully and does not comply with its duties to the children under section 17 of the Children Act 1989, the family will not be able to access legal aid for a community care solicitor. Judicial review proceedings in these cases are a key safeguard in ensuring a local authority does not act in breach of the law by unlawfully refusing support and forcing a family into destitution, but they will have no access to legal aid to bring proceedings and are, in our experience, completely unable to bring such proceedings unaided.

Another extremely vulnerable group that would be hit by the proposed residence test is separated migrant children in local authority care. A significant number of children with no regular immigration status may end up in the care of a local authority, for example a child who has long overstayed a visa through no fault of their own and where a private fostering arrangement has broken down or they have been the subject of care proceedings after suffering abuse or neglect. Some of these children will not be claiming asylum so will not fall into the asylum-seeker exception. If the local authority acts unlawfully and does not comply with its duties to the child (for example, placing the child in unsuitable accommodation or undertaking an unlawful age assessment), the child would have no legal aid for a community care solicitor to challenge this treatment which breaches their rights. Also, the recent cuts to legal aid for immigration claims mean that unaccompanied children as well as care leavers rely on the local authority’s duties towards them including a duty to pay for immigration legal services privately where this is in their best interests.

There has already been a significant cost shift (and overall cost increase to the government) as a result of looked after children being cut off from immigration legal aid under LASPO 2012. In the view of the Consortium, the government should urgently consider the potential financial burden it risks putting onto local authorities if a residence test were implemented. Local authorities, owing duties to looked after children, would have to pay for private legal services. Furthermore, if a local authority refuses to pay for legal aid in a particular case, legal aid will not be available to enforce this obligation. The No Recourse to Public Funds Network has estimated a cost burden of £26 million on local authorities resulting from these proposals, due to the increased homelessness and their duties to vulnerable children.14No Recourse to Public Funds Network, Shadow Impact Assessments for the Residence Test, at http://www.nrpfnetwork.org.uk/policy/Pages/default.aspx

Children affected by detention

The Ministry of Justice’s response to the Transforming Legal Aid Consultation states:

‘We have also concluded that there are further limited circumstances where applicants for civil legal aid on certain matters of law (as set out in Schedule 1 to LASPO) would not be required to meet the residence test. The test will not apply to the following categories of case (which broadly relate to an individual’s liberty…..’15Ministry of Justice September 2013 Transforming Legal Aid: Next steps Annex B: Response to consultation, Paragraph 125

Despite this concession, the Government still proposes that the residence test will apply to challenges to the legality of detention which are brought in civil claims by immigration detainees after their release. RCC members have dealt with many cases where children and parents have been detained unlawfully. Civil claims are a crucial means to offering these individuals redress, and ensuring that the Home Office cannot detain children and parents unlawfully with impunity.

In 2010, a time limit of one week was introduced on the detention of families with children. Prior to this, RCC members referred very many families to solicitors who made civil claims challenging the legality of their detention. In one case a family was awarded £150,000.16The Independent 13/02/2009 ‘Asylum detainees win record payout’ http://www.independent.co.uk/news/uk/home-news/asylum-detainees-win-record-payout-1608207.html Such cases were vital in holding the Home Office to account and precipitated very significant improvements in the treatment of this vulnerable group.

The RCC is aware of two cases where the High Court has found that single mothers have been unlawfully detained and separated from their children.17MXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) and NXT, R (on the application of) & Ors v Secretary of State for the Home Department [2011] EWHC 969 (Admin) Despite the unlawful practices highlighted by the High Court in those cases, many of the flaws which were revealed continued to be features of the cases set out in Bail for Immigration Detainee’s 2013 report ‘Fractured Childhoods: the separation of families by immigration detention’. The RCC is aware of several recent cases where legal proceedings in civil claims to challenge the legality of parent’s detention were commenced but the Home Office paid thousands of pounds in compensation prior to the case reaching trial. In one case which settled in early 2013 the parent and child were given £68,500 in compensation.18This mother was a client of Bail for Immigration Detainees, who referred her to solicitors to challenge the legality of her detention.

Case study: Beth and Daniel

Beth’s grandfather, who was caring for her and her disabled brother Daniel during their mother’s detention, became seriously ill and was admitted to hospital three times. Beth had to stop attending school to care for her brother and grandfather and missed her GCSE exams.

Beth found it extremely difficult to look after her seven year old brother, was has limited motor control and severe behavioral problems. Children’s Services deemed Daniel to be at risk of emotional and physical harm, and found that: ‘Daniel has found it very difficult being separated from his mother…  [A] concerned neighbour rang to report that Daniel was playing alone in the road at 8pm… he walks into people’s houses.’

Two months into his mother’s detention Daniel was hit by a car.  Despite receiving reports about the welfare of these children, the Home Office detained their mother for 160 days before she was released on bail by the Tribunal. The Home Office subsequently awarded the family tens of thousands of pounds in compensation for the mother’s detention. Under the proposed residence test, this mother would not have been able to access Legal Aid for her civil claim challenging the legality of her detention.19Case study provided by Bail for Immigration Detainees

Care leavers

The proposals would also have a significant impact on care leavers, including young people who came to the UK as unaccompanied children, who claimed asylum but were refused and became appeal rights exhausted. After turning 18 they would not be able to get legal aid in order to challenge the local authority if they unlawfully withdrew support and made them destitute, an issue faced by many of the young people with whom RCC members work.20See The Children’s Society, I don’t feel human: Experiences of destitution among young refugees and migrants, 2012, at http://www.childrenssociety.org.uk/sites/default/files/tcs/research_docs/thechildrenssociety_idontfeelhuman_final.pdf

Children whose ages are disputed

A further group of cases of concern to RCC members are children whose age is disputed. Many children in the immigration system have their ages disputed and some are treated as adults, which can lead to their being held in immigration detention or being denied support.21See Coram Children’s Legal Centre, Happy Birthday? Disputing the age of children in the immigration system, 2013, at http://www.childrenslegalcentre.com/report-happy-birthday-disputing-age-children-immigration-system/ and Refugee Council, Not a minor offence: Unaccompanied children locked up as part of the asylum system, 2012, at http://www.refugeecouncil.org.uk/assets/0002/5945/Not_a_minor_offence_2012.pdf The correct assessment of an applicant who is under 18 years of age is necessary to ensure that the government upholds its domestic and international obligations to those who are children. Where an applicant disagrees with the assessment made by a local authority, a judicial review of the decision, and the court’s determination of age binds both parties.

These children would only be able to get legal aid for a community care solicitor to challenge an unlawful age assessment if they have an ongoing asylum claim at the time the application for legal aid is made. For some, claiming asylum will not be the appropriate course for their immigration case. For others, the age dispute may only arise once they no longer fall within the asylum-seeker exception, either because they have been recognised as a refugee, or granted another form of leave to remain, and then have to wait to accrue the necessary 12 months residence (this issue is explore below at paragraph 29), or because they have been refused and have become a failed asylum-seeker (the process of assessing age within a local authority can take many months). RCC members work with many children whose ages are unlawfully assessed, including children who are detained in adult institutions as a result, and is extremely concerned that the proposals risk taking away the only effective remedy from those who do not meet the requirements of the residence test (we are also concerned about the effects of the proposals on judicial review more generally – please see below).

Suspected victims of trafficking

Whilst the government has conceded that victims of trafficking should not be subjected to the residence test, this is limited to those for whom there has been a conclusive decision that the individual is a victim of trafficking or has been identified under the National Referral Mechanism (NRM) as having ‘reasonable grounds’ that they are victims of trafficking.22As defined in paragraph 32 of Part 1 of Schedule 1 to LASPO This means that prior to an NRM referral and while awaiting the ‘reasonable grounds’ decision, a child victim of trafficking is not able to get legally-aided advice or support from a solicitor unless the case also involves an asylum claim.

RCC members and others have elsewhere expressed serious concerns about the National Referral Mechanism23See, for example, Anti-Trafficking Monitoring Group briefing Trafficked children at http://www.ecpat.org.uk/sites/default/files/atmg_briefing_trafficked_children.pdf  and Anti-Trafficking Monitoring Group briefing Discrimination in the identification process at http://www.ecpat.org.uk/sites/default/files/atmg_briefing_discrimination_in_the_identification_process.pdf and over 65% of victims of trafficking are not referred to the NRM,24UK Human Trafficking Centre Annual Assessment (2013) http://www.soca.gov.uk/news/608-human-trafficking-assessment-published in part due to a lack of awareness among frontline professionals of the existence of the NRM.25CFAB written evidence to the Joint Committee on Human Rights – Inquiry into the human rights of unaccompanied migrant children and young people in the UK – 26 October 2012 – Children and Families Across Borders (CFAB) highlighted that having recently trained nearly 1000 frontline child protection staff in London, at the outset of training 75% had not heard of the NRM and 70% were unable to confidently identify trafficked children. When a referral is made, RCC members’ recent research has shown that many children receive a negative decision because the exploitation element is difficult to prove despite there being evidence for illegal entry via an agent or trafficker.26Refugee Council and The Children’s Society, Still at Risk: A review of support for trafficked children, 2013, at http://www.childrenssociety.org.uk/sites/default/files/tcs/still_at_risk_-_full_report_-_refugee_council__the_childrens_society.pdf The assistance of a legal representative with compiling evidence and making representations to support their account of trafficking when referred to the NRM lowers the risk of a negative NRM decision.

Furthermore, this concession would only mean that a victim of trafficking was able to obtain legal aid for an immigration applications, employment law case and civil damages claim.27Paragraph 32, Part 1, Schedule 1, Legal Aid, Sentencing and Punishment of Offenders Act 2012 The exemption therefore leaves very significant gaps in the civil legal aid that trafficking victims can access. They will not have access to civil legal aid in public law, leaving them unable to bring a judicial review. This is striking because the only way to challenge a negative reasonable or conclusive grounds decision is by judicial review.

They will also not be able to access legal aid in community care, for example if a child or young person is unlawfully denied services by a local authority or unlawfully age disputed. This means that trafficked children will be in a powerless position where they are unable to challenge an incorrect age assessment and will therefore not be recognised as a child. This means they could remain homeless or be accommodated inappropriately, supported insufficiently, and be placed at risk of harm, detention and forced removal.

Case study: Joy

Joy was trafficked into England from Nigeria when she was five-years-old, and kept in domestic servitude for 10 years. She did not know her birth family, never went to school, was not registered with a GP and was given limited access to the outside world.

At the age of 16, Joy escaped and presented to children’s services for support. However, the local authority disputed her age, as she did not have any documents to prove her date of birth, and assessed her to be over 18. The local authority took no steps to refer Joy’s case to the National Referral Mechanism, despite the clear indicators of trafficking.

Joy’s case was taken on by a solicitor who challenged both the age assessment and local authority’s failure to make a referral to the NRM. Her case was heard in the High Court which held that she had been 16 at the time of the age assessment. So, aged 18, she was given a firm financial footing with local authority funding, to help her find housing and study childcare at college.

Under the proposed residence test, Joy would not have been able to access Legal Aid for the judicial review of her age assessment and to challenge the local authority’s refusal to support her. Despite being a victim of trafficking she would not have been covered by the government’s concession outlined above.28Case study provided by Coram Children’s Legal Centre

Asylum seekers and those with refugee status

The RCC welcomes changes made to the government’s original proposals which mean the period of lawful residence will start from the date an asylum claim is submitted rather than the date it is accepted. However, we believe this approach to be counter-intuitive since children and young people with an overwhelming strong case for recognition as a refugee who are granted refugee status almost immediately would still be ineligible for legal aid for almost a year subsequent to being recognised as a refugee. The average processing time for an initial asylum decision for a child in 2012-2013 was 127 days (or approximately 4 months).29House of Commons – Written Answers 2nd July 2013 Furthermore, it is not clear whether this concession would apply to unaccompanied children who are refused asylum but granted discretionary or limited leave to remain (56% of unaccompanied children who claimed asylum in 2012 were granted discretionary leave).

Judicial review

Judicial review represents the practical application of the rule of law and someone who has suffered an unlawful act or omission by a public authority can bring a challenge by judicial review where there is no other remedy. As outlined above, JR is, for example, the only way to challenge an unlawful age assessment or an adverse decision on whether someone is a victim of trafficking. Judicial review is also a vital safeguard against the Home Office unlawfully removing children and parents from the UK, and maltreating children who are in immigration detention. The Government’s proposal that legal aid providers not be paid for work on judicial review cases unless permission is ultimately granted by the High Court would transfer all the financial risk of an application for judicial review to the legal aid provider, so that all the work they do on a JR is at risk. This will make providers far less willing to bring JRs and RCC members who are not lawyers are concerned that we will simply find no lawyers willing to take on the cases that we wish to refer to them because they cannot bear the financial risk. This will leave children with no way to challenges unlawful treatment and undermine our efforts as voluntary sector organisations to support them.

Judicial review is a vital safeguard against public authorities acting unlawfully or where it is necessary to clarify the law. The impact assessment clearly identifies that there is a risk that providers may refuse to take on judicial review cases because the financial risk of the permission application may rest with them. We do not agree that these are cases that would not be considered by the court in any case. In fact we often find that cases settle before the permission stage in the child or family’s favour because the threat of legal action is sufficient for the authority or Home Office to change their unlawful practice. Without this vital safeguard, children and families will be unable to challenge unlawful decisions and actions by government.

Such was the level of concern about this proposal that a further consultation was launched in September alongside the proposal that where a case has been issued (but not otherwise),30Judicial Review – proposals for further reform, paragraph 119 and settles without permission having been granted, the Legal Aid Agency may nevertheless pay the lawyers provided there is a good reason why the defendant has not been ordered to pay. This is however unlikely to address the central problem as public bodies faced with judicial reviews do not back down in the period between the issue of proceedings and the grant of permission. They tend to wait to see what the judge will do. Rather, public bodies tend to back down just before a case is issued and often whilst the substantial work preparing the case for issue is underway. All this work is vital and can be extremely time-consuming. Making it unfunded will seriously undermine the ability of individuals to hold the state to account.

Alternatives to legal aid

The Ministry of Justice’s Impact Assessment assumes that ‘individuals who no longer receive legal aid will now adopt a range of approaches to resolve issues. They may choose to represent themselves in court, seek to resolve issues by themselves, pay for services which support self-resolution, pay for private representation or decide not to tackle the issue at all.’31MoJ194 (paragraph 9) The RCC believes that the children, young people and families it works with are unable to adopt alternative approaches that will resolve the issues they face. In the RCC’s view, the clients we work with will simply be unable to bring their cases without legal aid, especially children. Nor should they be expected to do so. It is completely unreasonable to expect children to navigate complex legal issues without professional advice and representation and leaving children without legal representation is incompatible with the government’s obligations under the UN Convention on the Rights of the Child. For children in care, the changes will simply result in significant costs to local authorities (forced to pay for private legal services for looked after children, and potentially also care leavers and families supported under the Children Act 1989) and significant costs to the court system, as judges are forced to deal with thousands of ill-prepared litigants in person.

It is also clear that most children and families who have previously been able to apply for legal aid, many of whom will be dealing with legal issues around support and accommodation, will be unable to pay for private representation, and may be left at risk of abuse and exploitation, including sexual abuse and exploitation, as they seek alternative means of funding legal services.

It cannot be assumed that alternative sources of advice exist or will continue to exist, as the legal services landscape is changing so dramatically due to government decisions. Many law centres and other not-for-profit organisations have already suffered significant cuts under LASPO, and it is not realistic to expect voluntary sector advice agencies or pro bono solicitors to offer alternative source of advice on many issues. The government’s changes threaten the very existence of legal providers, and undermine any sense of clarity about the future operating environment, so it is not at all clear who would be left to do any pro bono work. In any case, pro bono work is by its nature limited in terms of the amount of advice that can be offered and advice providers will not have capacity to meet clients’ needs, either in terms of the potential volume of people seeking help, or the specialist knowledge required for more complex cases.

As stated at paragraph 7 above, many RCC members provide advocacy services to young refugees and migrants, and while they can liaise with local authorities and others to try to ensure that appropriate support and protection is provided, without recourse to legal action it is often impossible to force the relevant individual or agency to take action. A clear example of this is the high numbers of judicial reviews of unlawful local authority age assessments, where it is not until a letter before action has been sent that the local authority will agree to treat the child as the age they claim to be. A significant number of these cases have to go to full hearing, and in many situations interim support will only be provided as a result of a court order.32For more information on these types of cases, see Coram Children’s Legal Centre, Happy Birthday? Disputing the age of children in the immigration system, 2013, at http://www.childrenslegalcentre.com/report-happy-birthday-disputing-age-children-immigration-system/

The government has outlined that the proposed residence test would not result in contravention of our domestic and international legal obligations because ‘we would ensure that legal aid will continue to be available where necessary to comply with our obligations under EU or international law set out in Schedule 1 to LASPO.’33 This is based on the supposed availability of exceptional funding as a safeguard for those excluded from legal aid by the residence test. However, it is the RCC’s belief that the exceptional funding system is not an adequate safeguard. To our knowledge, only nine grants of exceptional funding have been made since 1 April 2013 and it is inappropriate for children’s access to justice to be provided by way of an ‘exception’

While the cost savings of restricting legal aid via a residence test are wholly unknown to the government, as stated in Impact Assessment MoJ194, the impact on children and those voluntary and statutory sector organisations supporting them (including local authorities) will be hugely significant.

Conclusion

The proposed changes would result in a vast inequality of arms between the state and the individual subject to its power, an inequality that is all the more marked for children and young people, whose particular capabilities and vulnerabilities create distinct obstacles to their ability to seek redress and access justice. This is true of all children, due to their inherent vulnerability, lack of experience and enhanced advice needs,33See, for example, Youth Access, Young People’s Access to Advice – The Evidence: Key Research Evidence on Young People’s Needs for Advice on Social Welfare Issues, 2009 but it is particularly true of separated children and young people who are without their families and face complex administrative and legal proceedings alone, often in a language which is not their mother tongue and in a system which is utterly bewildering to them. As is widely recognised, there are significant obstacles to these children being able to recognise legal problems, seek appropriate, quality legal advice and representation, and understand and navigate complex administrative and legal processes.34See, for example, Coram Children’s Legal Centre, Navigating the System: Advice provision for young refugees and migrants, 2012, at http://www.childrenslegalcentre.com/report-navigating-system-advice-provision-young-refugees-migrants/

Children need legal representation if their rights are to be realised. The view of the RCC is that the proposed residence test is unlawful, breaching children’s rights as outlined above. Children who are not ‘lawfully resident’ or who have not resided lawfully in the UK for 12 months should not face discrimination and to deny them access to legal remedy is in breach of their rights. Any reforms to the civil legal aid system must take full account of their potential impact on all children, on children’s access to justice and an effective remedy, and on a child’s opportunity to be heard in administrative and judicial proceedings affecting them (Article 12, UN Convention on the Rights of the Child).

The RCC recommends that:

  • The government abandon the residence test which, even with the listed exemptions, is unlawful and discriminatory to migrant children.
  • The government undertake a thorough child rights impact assessment of any proposed changes to civil legal aid provision

References   [ + ]

1. This is a binding international obligation and it is translated into domestic law through section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009 (see the leading Supreme Court judgmentZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4). Where Article 8 ECHR rights are engaged, these are to be interpreted in accordance with the UNCRC.
2.

Article 12 of the Convention provides:

  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’.

3. CRC/GC/2005/6 1 September 2005, para 36
4. Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, (adopted by the Committee of Ministers on the 17 November 2010 at the 1098th Meeting of the Ministers’ Deputies).Available at https://wcd.coe.int/wcd/ViewDoc.jsp?id=1705197&Site=CM
5. See previous Refugee Children’s Consortium briefings on the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
6. While our analysis of equalities impacts is focused on the protected characteristics set out in the Equality Act 2010, we have, throughout, considered carefully the impact of our proposals on vulnerable groups, with particular regard to the best interests of children, as addressed in the relevant chapters, the IAs and the equality statement’ , Transforming Legal Aid: Next steps, Annex B: Response to consultation, para. 475
7. Including Annex F: Equality Statement and the Impact Assessments, particularly the Impact Assessment entitled ‘Cumulative Legal Aid Reforms’ and those with the IA numbers MoJ194, MoJ195 and MoJ198
8. Article 4, UN Convention on the Rights of the Child 1989
9. Article 3, UN Convention on the Rights of the Child 1989
10. General Comment No. 5, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) CRC/GC/2003/5 at paragraph 45.
11. Annex K paragraph 5.3.1
12. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/legislation/bci-act1/change-for-children.pdf?view=Binary
13. Nando Sigona and Vanessa Hughes, No Way In, No Way Out: Irregular migrant children and families in the UK, COMPAS, University of Oxford, 2012
14. No Recourse to Public Funds Network, Shadow Impact Assessments for the Residence Test, at http://www.nrpfnetwork.org.uk/policy/Pages/default.aspx
15. Ministry of Justice September 2013 Transforming Legal Aid: Next steps Annex B: Response to consultation, Paragraph 125
16. The Independent 13/02/2009 ‘Asylum detainees win record payout’ http://www.independent.co.uk/news/uk/home-news/asylum-detainees-win-record-payout-1608207.html
17. MXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) and NXT, R (on the application of) & Ors v Secretary of State for the Home Department [2011] EWHC 969 (Admin)
18. This mother was a client of Bail for Immigration Detainees, who referred her to solicitors to challenge the legality of her detention.
19. Case study provided by Bail for Immigration Detainees
20. See The Children’s Society, I don’t feel human: Experiences of destitution among young refugees and migrants, 2012, at http://www.childrenssociety.org.uk/sites/default/files/tcs/research_docs/thechildrenssociety_idontfeelhuman_final.pdf
21. See Coram Children’s Legal Centre, Happy Birthday? Disputing the age of children in the immigration system, 2013, at http://www.childrenslegalcentre.com/report-happy-birthday-disputing-age-children-immigration-system/ and Refugee Council, Not a minor offence: Unaccompanied children locked up as part of the asylum system, 2012, at http://www.refugeecouncil.org.uk/assets/0002/5945/Not_a_minor_offence_2012.pdf
22. As defined in paragraph 32 of Part 1 of Schedule 1 to LASPO
23. See, for example, Anti-Trafficking Monitoring Group briefing Trafficked children at http://www.ecpat.org.uk/sites/default/files/atmg_briefing_trafficked_children.pdf  and Anti-Trafficking Monitoring Group briefing Discrimination in the identification process at http://www.ecpat.org.uk/sites/default/files/atmg_briefing_discrimination_in_the_identification_process.pdf
24. UK Human Trafficking Centre Annual Assessment (2013) http://www.soca.gov.uk/news/608-human-trafficking-assessment-published
25. CFAB written evidence to the Joint Committee on Human Rights – Inquiry into the human rights of unaccompanied migrant children and young people in the UK – 26 October 2012 – Children and Families Across Borders (CFAB) highlighted that having recently trained nearly 1000 frontline child protection staff in London, at the outset of training 75% had not heard of the NRM and 70% were unable to confidently identify trafficked children.
26. Refugee Council and The Children’s Society, Still at Risk: A review of support for trafficked children, 2013, at http://www.childrenssociety.org.uk/sites/default/files/tcs/still_at_risk_-_full_report_-_refugee_council__the_childrens_society.pdf
27. Paragraph 32, Part 1, Schedule 1, Legal Aid, Sentencing and Punishment of Offenders Act 2012
28. Case study provided by Coram Children’s Legal Centre
29. House of Commons – Written Answers 2nd July 2013
30. Judicial Review – proposals for further reform, paragraph 119
31. MoJ194 (paragraph 9)
32. For more information on these types of cases, see Coram Children’s Legal Centre, Happy Birthday? Disputing the age of children in the immigration system, 2013, at http://www.childrenslegalcentre.com/report-happy-birthday-disputing-age-children-immigration-system/
33. See, for example, Youth Access, Young People’s Access to Advice – The Evidence: Key Research Evidence on Young People’s Needs for Advice on Social Welfare Issues, 2009
34. See, for example, Coram Children’s Legal Centre, Navigating the System: Advice provision for young refugees and migrants, 2012, at http://www.childrenslegalcentre.com/report-navigating-system-advice-provision-young-refugees-migrants/