Written evidence from Just for Kids Law

 

About Just for Kids Law

Just for Kids Law (JfKL) is a UK charity that works with and for children and young people to hold those with power to account and fight for wider reform by providing legal representation and advice, direct advocacy and support, and campaigning to ensure children and young people in the UK have their legal rights and entitlements respected and promoted and their voices heard and valued.

The Children’s Rights Alliance for England (CRAE) merged into JFKL in 2015. CRAE was established in 1991 when the UK ratified the UN Convention on the Rights of the Child (CRC) and works with 150 organisations and individual members, to promote children’s rights and push for full implementation of the CRC in England. The Youth Justice Legal Centre (YJLC) was set up by Just for Kids Law in 2015 to provide legally accurate information, guidance and training on youth justice law. It aims to raise standards in criminal courts and supports lawyers doing vital work representing children and young people across England and Wales.

This submission is informed by our work monitoring implementation of the CRC in England, as well as our direct advocacy and legal case work with children and young people. We are concerned about the future of legal aid and the implications for children and young people, especially those who are not currently able to access legal aid. Therefore, we very much welcome this inquiry and look forward to further engagement as the inquiry continues.

 

Key messages:

  1. Access to legal aid should be granted to all children, irrespective of any means and/or merits requirement.
  2. Gross and disposable income limits prevent those who do not fall within the very poorest of society from obtaining legal aid, therefore access to justice.
  3. Vulnerable children and young people, including those who are living chaotic lives, facing homelessness, victim of domestic violence and/or with Special Educational Needs and Disabilities, are unable to access legal aid because they are unable to obtain and provide relevant evidence, despite clearly being eligible.
  4. There is an urgent need for those representing children in the police station, youth court and crown court to have specific competences to do so.
  5. Failure to grant criminal legal aid to all children is unreasonable, not in line with the UK obligations under the CRC, is leaving many children with criminal records, with the vast and deeply concerning implications for their future, and preventing them from being diverted out of the criminal justice system.
  6. The increase in video link hearings for child defendants, both during the coronavirus pandemic and subsequently, severely compromises a child’s rights to a fair trial and their ability to effectively participate.
  7. Children and young people who are out of scope for legal aid, are often unable to make their human rights cases a reality because they are blocked by laws and procedures that are profoundly complex.
  8. Covid-19 measures and restriction significantly impact legal representatives’ ability to meet clients face-to-face, which compromises processes of building trust and taking detailed, accurate and comprehensive instructions from children and young, who often have complex needs.

Strategic Litigation/ Public Law 

Our Strategic Litigation department takes public law challenges to bring about wider changes to protect and further the rights of children. The most significant impact of LASPO on our ability to do this is the reduction in the means test eligibility limits. The limits do not align with the cost of current living standards and prevent those who do not fall within the very poorest of society from obtaining legal aid and therefore bringing a claim through judicial review. This restricts our ability to hold public bodies to account and our clients’ ability to access justice.

Recent examples from our cases include:

This is further restricted by the requirement, under the Legal Help scheme, for the parents’ income to be taken into account when assessing the means of a client who is under 18. The limit for gross income is set at £2,657 per month and £733 per month for disposable income. The test for what is considered to be an allowable expense is extremely narrow, with no room for discretion.  We have represented clients whose true disposable income is far lower than the limit, but who are deemed to have a disposable income in excess of £733 per month. The inflexibility of the rules means that assessment often does not accurately reflects the client’s true means.  We have had experience of clients whose parents’ income has been in excess of one or both of these amounts, which disqualifies the child from receiving public funding, but the parents cannot afford to pay privately for legal services. This has meant that a significant proportion of our work in civil matters is undertaken on a pro bono basis. We are a charity and therefore, alongside our legal aid contracts, we have alternative sources of funding which allow us to undertake pro bono work. This is not the case for other legal aid providers.

In judicial review proceedings we have used Cost-Capping Orders as a way of limiting our potential costs liability, where we have not been able to secure public funding. However, these are not available until after the permission stage, meaning that claimants face unlimited risk until permission is granted.

 

Education Law

Exclusion reviews

There is no legal aid available to challenge a child’s exclusion from school, except when it results from disability discrimination (see below).[1] This is problematic given that school exclusion can have a huge impact on a child, in everything from academic attainment to their mental and physical health.[2] Further, exclusions continue to rise in number year on year and consistently, the proportion of children with certain characteristics is disproportionately high.[3] This includes children with Special Educational Needs and Disabilities, children on Free School Meals, those from Black Caribbean, the Gypsy, Roma and Traveller (GRT) community and certain other ethnic backgrounds. This clearly evidences endemic discrimination in the system.[4]

These problems are compounded by the complexity of the system and lack of representation. The Statutory Guidance governing the exclusions review process advises that human rights law, the Equality Act 2010, education law and the general provisions of public law all apply to exclusion reviews.[5] Additionally, the High Court has ruled that the appeal panels known as Independent Review Panels (IRPs) must undertake a full judicial review as far as is possible.[6] Clearly, this is a hugely complicated system in which the stakes for the young people involved can be enormous, potentially impacting on their whole lives. It is therefore of urgent concern that, in Just for Kids Law’s experience, the overwhelming majority of families go without legal advice.[7] Legal aid must be provided for exclusion reviews.[8]

First Tier Tribunal appeals and civil discrimination claims

Funding can be obtained for administrative reviews of SEND decisions of local authorities (such as a refusal to assess a child’s needs and prepare an Education, Health and Care Plan) although in limited circumstances.[9]

There are few organisations in England and Wales contracted with the LAA to deliver any publicly funded education work for these appeals. In addition, because appeal rights generally belong to the parents or guardians, many cannot obtain legal aid despite being unable to pay privately. Local Authorities will be advised by their nature, because they maintain in house legal teams. Schools will often instruct lawyers even against unrepresented families.

Legal aid must be accessible in Tribunal disputes. Currently, the state is funding local authorities and schools in defending claims, but declining to do the same for families pursuing them.

Judicial review in education

In a whole range of education disputes, judicial review is the last resort in rectifying legal wrongs that deny a child their fundamental right to an education. The difficulty in obtaining legal aid funding in judicial review is covered elsewhere in these submissions, but case studies are provided to identify the critical importance access to justice has for families, where the High Court is the only place left to turn.

Case studies

Jake: 4 years old

Jake has profound autism. He cannot speak and requires intensive, specialist support to continue his fundamental development. However, his local authority unlawfully refused to place him in a special school, instead trying to place him in a mainstream nursery who protested that they had no facilities or expertise to teach Jake. In any event, he was legally entitled to learn at a school, just like his peers. He was, in effect, denied this right because he is disabled. In addition, his dad had needed to give up work to teach him. Whilst it was suspected that cost was the local authority’s objection, they refused to defend their decision making in correspondence, leaving the family without an effective right of appeal outside of Judicial Review. Every day was therefore critical for him, yet obtaining legal aid was a hurdle for the family despite their impending financial hardship and this imperilled his legal position as the local authority knew, without it, they would not be able to proceed to issue.

Clara: 13 years old

Clara is a Seventh Day Adventist. She could not attend a Saturday detention because she observes the Sabbath on Saturdays. So, the School placed her in isolation indefinitely, until she agreed to attend. She offered to sit her detention on any other day, or to sit multiple detentions to make up for it, but the school refused to agree, insisting she sat during the Sabbath. The school contested the claim up until the day they were served with a notice that Clara had secured legal aid funding, and conceded on the same day. Clara had initially been denied funding, with the LAA claiming she lacked prospects, over Counsel’s advice to the contrary. Had she not been funded, as was nearly the case, she would not have been able to access the justice she was clearly entitled to.

Sai: 13 years old

Sai was permanently excluded from school. He argued it was unlawful because he had not been in serious trouble before, and the school agreed he was unlikely to be again, meaning that an exclusion was not necessary. However, the school persisted and an appeal panel upheld it on spurious grounds. Sai brought judicial review proceedings and obtained permission to proceed. In the course of proceedings, the LAA refused to urgently consider an amendment application despite the fact a court deadline was imminent (within 48 hours). The LAA eventually granted the request but the Claimant had to file an application at risk for costs, in order to safeguard the claim. Weeks before trial, the claim was conceded.

 

Community Care Law

Relevant evidence for legal aid

Our clients are frequently prevented from accessing legal aid due to them not being able to obtain the relevant evidence, despite clearly being eligible. The reasons for this vary and include difficulties accessing documents due to lack of support, mental health and/or disability, homelessness, and being unable to obtain information such as pay slips from a former employer. As we are a charity we are on occasions able to take on these cases pro bono, however other organisations/law firms are not able do to this and often refer such cases to us. We are a small charity and do not have an unlimited amount of capacity and often cannot take on cases even where it is clear that a child or young person desperately requires support. As a result, some children and young people do not obtain the legal support they require.

Even where we are able to support on a pro bono basis, this is often restricted to pre-action protocol as if the child or young person is unable to provide the relevant evidence they will not be able to apply for legal aid funding to issue proceedings. We have also had instances where a child has applied for legal aid and been required to pay contributions despite the fact the child was estranged from parents, looked-after by children’s services and did not have an income or the ability to pay the contribution. We challenged this and the LAA agreed to provide legal aid and remove the requirement of contributions, however the client was made to pay one tranche of the contributions which only added to her already bad financial situation and rapidly deteriorating mental health.     

On another occasion, our client was a very vulnerable young person with learning difficulties and a diagnosis of anxiety and depression. Our client was a Former Relevant Child and a young parent, whose leaving care case was unlawfully closed by the local authority. She was being evicted from her accommodation, where she was placed by social services and did not have anywhere else to live and therefore would be street homeless. She was unable to provide us with the relevant means and capital evidence for legal help application. In normal circumstances, her case would not have been taken on by a legal aid firm. We took on the case and provided pro bono support, writing a pre-action letter to the local authority. The local authority agreed to conduct a needs assessment, prepare a pathway plan, allocate her a personal adviser and support the young person to find suitable accommodation for her and her child. Had the local authority not conceded at pre-action stage, we would not have been able to pursue judicial review proceedings as the young person was unable to evidence her means.

Guidance for determining eligibility for controlled work

Though the Guidance for determining Eligibility for controlled work sets out the below exception, we have on numerous occasions been informed by our Contract Managers that this is “an exception and not the rule”. Children and young people are vulnerable and require additional support and often do not have access to the support they require. Having to provide evidence of means adds another layer of anxiety and distress. Furthermore, it often means they do not get the legal support required/ access to legal advice and therefore are unlikely to be able to challenge unlawful decisions made by the local authority.

“Exceptionally, the personal circumstances of the client (such as age, mental disability or homelessness) may make it impracticable for any evidence to be supplied. In such cases, eligibility can be assessed without evidence. However, the attendance note must give the reason why evidence could not be obtained and providers must be prepared to justify this on audit if necessary.”

 

Criminal Law

Specialist legal representation

In its General Comment on children’s rights in the child justice system, the UN Committee on the Rights of the Child (UNCRC) promotes the strengthening of a comprehensive child justice system through the establishment of specialised units within the police, the judiciary, the court system and the prosecutor’s office, as well as specialized defenders or other representatives who provide legal or other appropriate assistance to the child.[10] Youth court work has been recognised as a high-risk area of work involving highly complex knowledge and expertise with potentially life changing implications for the child involved – standards of advocacy in the youth court are variable and, as a result, the interests of some of the most vulnerable children are not being adequately represented.[11], [12] There is a clear body of evidence that children coming into contact with the criminal justice system have a range of complex needs and vulnerabilities: The Independent Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court, chaired by Lord Carlile in 2014, the Youth Courts Advocacy Proceedings review, published in 2015 by the Bar Standards Board (BSB) and the Chartered Institute of Legal Executives (CILEx) and the Taylor Review of the youth courts system, published in 2016, clearly stated that they are some of the most vulnerable in our society.[13] They have often suffered neglect and abuse, have care experience, have been excluded from school and high levels of mental health issues or learning disabilities or difficulties. Our annual State of Children’s Rights Report on Policing and Criminal Justice 2017 highlighted some of the particular characteristics of children entering custody including that 61% of admissions were not engaging in education and 45% had substance misuse concerns; around one third of admissions were assessed as a high risk to others (33%) or were a looked-after child prior to admission to custody (33%); there were concerns relating to suicide or self-harm (31%), physical health (30%), mental health (33%), learning disabilities or difficulties (32%) for around one third of admissions; there were concerns around sexual exploitation for 9% of the cohort, gang involvement for 13% of admissions and 18% were assessed as not engaging with carers; and a small proportion were recorded as being asylum seekers or immigrants (3%), parents or parents-to-be (5%) or having a current child protection plan prior to entering custody (5%).[14] It is challenging, even for practitioners with considerable expertise, to engage with these children. It is even more challenging for lawyers who have no training in adolescent development, speech and language problems and complex social issues. 

The need for lawyers who act for children to have specialist training and expertise has long been recognised in other areas of law. By contrast, children in the criminal justice system who are at risk of losing their liberty are often represented by the least experienced lawyers  despite being every bit as vulnerable and have just as much at stake as those in the family courts. The youth court is still widely regarded as a training ground, where trainee barristers cut their teeth, before moving on to other work. Many will have had minimal or zero training in youth court work and, as novices in their profession, be ill-equipped to deal with the demands put on them when dealing with acutely vulnerable children. The legal profession is virtually alone in failing to treat this area as a distinct specialism: youth court judges, youth offending teams and social workers, are all expected to undergo specialist training to equip them with the knowledge and skills that are essential to protecting the interests of young people. There is an urgent need for those representing children in the police station, youth court and crown court to have specific competences to do so. This is difficult to achieve without specialist skills and knowledge gained through training and accreditation. We believe that lawyers working with children and young people in the criminal justice system should be given specialist training so they can do the best possible job for their young clients, and so young people themselves and their families can be confident that their rights and interests are properly protected.

The Taylor Review recommended that the Ministry of Justice review the fee structure of cases heard in the youth court in order to improve the quality of legal representation and the introduction of  mandatory training for all lawyers appearing in the youth court.[15] In July 2017, the Lord Chief Justice observed in  R v Grant Murray & Anor [2017] EWCA Crim 1228 that ‘it would be difficult to conceive of an advocate being competent to act in a case involving young witnesses or defendants unless the advocate had undertaken specific training’. In the Law Society report Justice on Trial it states: ‘Solicitors who specialise in working with young people can retain a clear focus on the key legal elements in a case, even when there are a lot of social and other factors at work’ and recommends that ‘expert lawyers be suitably remunerated to ensure that those with knowledge and experience of working with young people are retained in the system and new practitioners are attracted to work in this important area of law’. [16] However, the renumeration for this work is still unacceptably low, and there is no clear guidance as to how the government intends to address the issue. We believe that all children deserve to interact with criminal lawyers who have specialist skills and knowledge and this would have far better outcomes. 

Anyone who practices regularly in the youth courts knows how different the law, practice and procedure are from the magistrates and crown courts. Youth justice law is very different to adult criminal law. It is a discrete legal system, with a different practical framework, sentences, sentencing guidelines, out of court disposals and criteria for remand.  The principles of sentencing for children are distinct and all court proceedings should comply with the UN Convention on the Rights of the Child, which the UK ratified in 1991, and other UN guidelines concerning children in trouble with the law.  Lawyers learn very little, if any, youth justice law at undergraduate level or through professional qualifications and are never taught how to interact with vulnerable children.   Often none of the relevant professionals - the prosecution, judiciary,  legal advisers and the defence - have a specialism in youth justice, leaving a whole process bereft of expertise where life changing decisions are made concerning children.

As a result of having insufficiently trained lawyers, children often do not understand the criminal justice process before, during and after their case. Ineffective communication leads to children going through the system without really participating in it. The youth court is regularly referred to as ‘a guilty plea factory’ and children are often left frightened and traumatised by the experience. The latest Youth Justice Statistics show that over 60,000 children were arrested and over 38 percent convicted went on to re-offend within 12 months.[17] Children receive overly punitive sentences, are burdened with criminal records which follow them into adulthood and their rights are seldom acknowledged.  Above all, the best interests of the child, the legal principle which should be of paramount importance in all court proceedings concerning children, is glossed over or ignored. These issues are so entrenched in the culture of the criminal justice system that many lawyers are not actually aware of how much better they could do at representing children.

Further, the UNCRC states that wherever possible children should be dealt with outside the criminal justice system. However, despite some progress in reducing the number of children criminalised, statistics show that particular groups of children, including BAME children, looked-after children and care leaver and those from the GRT community, are overrepresented in the criminal justice system. A key skill for a lawyer representing children will be to get them diverted out of the criminal justice system wherever possible. This is very difficult to achieve without youth justice expertise gained through training.  In its General Comment no. 24 the UNCRC emphasises that the ‘systematic training of professionals in the child justice system is crucial to uphold those guarantees. Such professionals should be able to work in interdisciplinary teams, and should be well informed about the physical, psychological, mental and social development of children and adolescents, as well as about the special needs of the most marginalized children.’ [18]

Interest of Justice test

Children need and have the right to special protection under the law. The interest of justice test in criminal legal aid fails to protect children and risks their access to a fair trial. Without legal aid for professional representation, children are being left to represent themselves, in possibly complex criminal matters, at an already very stressful time in their life. Children are more vulnerable than, less culpable than and have different needs and capacities from adults, without legal aid for professional representation, they cannot effectively participate in their own legal proceedings. They must be supported to understand the discussions and decisions being made. In 2018, the House of Parliament reported that: “Many children who come into contact with the criminal justice system come from ethnic minority backgrounds, have grown up in care or disadvantaged families, and are often the victims of crime themselves. There are high rates of mental illness and substance misuse amongst children who offend. Many have learning disabilities (23–32%), communication difficulties (60–90%), and neuro-developmental disorders such as autism spectrum disorders and attention deficit hyperactivity disorder (ADHD) (15% and 11–18% respectively). This raises additional concerns about their ability to participate in criminal proceedings.[19]

Whilst legal aid may be refused for minor matters, a child will still acquire a criminal record if convicted for an offence and the implications of this are vast and deeply concerning. Research has found that youth criminal records endure throughout adulthood, working life and beyond – to many, it feels like a life sentence.[20] Everyone should have the opportunity to move on from things that happened when they were children – but the current system for retention and disclosure of youth criminal records means that many people accused of minor crimes in childhood are unable to do so with the sheer number of very old and minor criminal records that are routinely and unnecessarily disclosed raises. A 2017 report by the House of Commons Justice Select Committee found that this undermines the ability of the youth justice system to steer children away from crime and may well fall short of the UK’s obligations under the UN Convention on the Rights of the Child (see paragraph 70 of the report).[21] 

Without legal aid for professional representation, children who may be eligible for diversion are not being diverted out of the criminal justice system and being dealt with out of court. This adds to the disproportionate outcomes for those who are already over-represented within the youth justice system, including children from BAME backgrounds, looked-after children and care leavers, and those from the GRT community. A key skill for a lawyer representing children will be to get them diverted out of the criminal justice system wherever possible – this is very difficult to achieve without youth justice expertise gained through professional training. It can never be in the best interest of a child to state their own case.

The law states that a child is any individual under the age of 18. This is the definition of a child in the Children Act 2004 and the UNCRC, which the UK is a party to. It is also the definition adopted throughout the criminal justice system. The Crime and Disorder Act 1998, which forms the foundations of the youth justice system, adopts this definition. So too does the Code for Crown Prosecutors. Even the LAA’s standard crime contract defines a child as “an individual under the age of 18”. 16 and 17-year-old children should and must be treated differently to adults in the criminal justice system. The courts have previously recognised this, and the police rules about the treatment of all children in police stations were amended in 2013 in recognition of this. All children, including 16and 17-year-old children, should be protected by the presumption of grant of criminal legal aid. It is unreasonable to expect a child, often with complex needs, to state their own case.

Virtual court hearings and the impact of Covid-19 on the youth justice system

We are extremely concerned that the increase in video link hearings for child defendants, both during the coronavirus pandemic and subsequently, severely compromises a child’s rights to a fair trial and their ability to effectively participate. As mentioned above, children in the youth justice system are some of the most vulnerable in society and often have high rates of learning and communication disability, more than half are from deprived households, many with absent parents, have spent time in care, have high levels of special educational needs etc, all which make it more difficult for children to effectively participate in court proceedings. The findings of reviews of the youth justice system have identified the same.[22] The use of video link adds a significant extra layer of difficulty.

Whilst we accept that these are unprecedented times and that there will be occasions where the use of virtual court is necessary, these occasions should be limited and every decision to undertake a virtual hearing undertaken with extreme caution. It is difficult to say what types of hearings could be held over video link (in these limited circumstances) but on every occasion consideration should be given to whether it is likely to result in the child being released more quickly, what decisions will be made about the child or the case at the hearing and whether holding the hearing via video link is in the best interests and welfare of the child.[23]

As a minimum we consider that lawyers should be either physically present with the child or, at the very least, able to have a video conference with the child during this time. The importance of building rapport and trust with a child, recognising non-verbal cues and identifying communication, social or learning difficulties are all impeded by the use of video link. The default position should be that children should never appear via video link for non-administrative hearings.

The Criminal Practice Directions states as follows: 

Youth defendants 

3N.13 In the youth court or when a youth is appearing in the magistrates’ court or the Crown Court, it will usually be appropriate for the youth to be produced in person at court. This is to ensure that the court can engage properly with the youth and that the necessary level of engagement can be facilitated with the youth offending team worker, defence representative and/or appropriate adult. The court should deal with any application for use of a live-link on a case-by- case basis, after consultation with the parties and the youth offending team. Such hearings that may be appropriate, include, onward remand hearings at which there is no bail application or case management hearings, particularly if the youth is already serving a custodial sentence.[24]

In April 2018, The Standing Committee for Youth Justice produced a report on child defendants and video links[25] which found that the use of video link has a negative impact on children’s ability to participate and outlined a number of specific concerns  including a detrimental impact on child’s ability to understand and participate, how a child’s behaviour may be misinterpreted by the court and increased likelihood that a child is remanded into custody or found guilty.

Similar concerns have been highlighted in a recent report on the evaluation of a tool which enables first appearance remand hearings in the magistrates’ court with the defendant appearing by video link.[26] Whilst the Report does not specifically assess the use of video courts in the context of youth proceedings, a number of findings for adult proceedings could well apply or be exacerbated in the context of youth proceedings. The data is complex but highlights some overarching issues with the use video courts. The findings relating specifically to decreased legal representation, loss of face-to-face contact and potential barriers to building of trust with defendants in the virtual court context should be noted as key concerns in the context of youth video hearings.

It is important that data on the use of video links with children during covid-19 should be collected and monitored as well as independent research on children’s ability to participate as well as the types of justice outcomes they receive.

Increased delays as a result of Covid-19

It is vital that criminal cases involving child defendants are heard as close to the date of offence as possible. The Covid-19 pandemic has exacerbated a system that was already struggling with long delays between offence and trial date.  The Crown Prosecution Service (CPS) Young Offenders guidance states as follows:

All cases involving youth offenders must be dealt with expeditiously and avoid delay, which has at its core the principle that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence.  To maximise the impact on the youth offender, the case must be dealt with as soon as possible.[27]

We welcome the CPS Coronavirus: Interim CPS Case Review Guidance – Application of the Public Interest Covid-19 crisis response,[28] which also applies to children when considering the Code for Crown Prosecutors particularly whether prosecution is a proportionate response. However, we are concerned that the outstanding backlog of cases involving children will drastically impact children’s rights. It is vital that more is done to ensure cases are heard expeditiously and a formal criminal justice response is taken only where absolutely necessary given the inevitable delays. These are unprecedented times that call for a review of the approach taken to child defendants. The UNCRC stresses that wherever possible children should be dealt with outside the criminal justice system.[29] Further, we have been alarmed to hear of many cases, for those children both on remand and bail, being adjourned to dates in late 2021. This will obviously have significant and long-term implications for a child’s well-being.

 

Immigration, Asylum and Nationality Law 

Overview

Since the passage of the LASPO, JfKL has highlighted the negative impact of the removal of legal aid for immigration cases on children. Without access to legal help and representation children struggle to advocate effectively for their rights, leaving them at risk of being cut off from education, healthcare, support, and even facing deportation to another country.[30]

Very few non-asylum immigration cases now fall within scope for legal aid. During the passage of LASPO the Government argued that if an individual’s case fell within the Immigration Rules they would be able to make an application unrepresented; that immigration cases do not require legal aid because the process of making applications is straightforward and if an individual is required to go to tribunal, this is an accessible process. This does not match the experience of JfKL, nor the subsequent case law.

The Supreme Court has described UK immigration law as ‘an impenetrable jungle of intertwined statutory provisions and judicial decisions’[31]; this is a commonly-held view. The Immigration Rules are further complicated by the intersection of immigration law with the UK’s other legal duties such as our international legal obligation to safeguard and promote the best interests of children.

An amendment to LASPO came into effect on 25 October 2019, bringing non-asylum immigration matters back into the scope of legal aid for separated migrant children. The long-awaited new rules come as a result of a legal challenge by The Children's Society, who successfully argued that a 2013 law which removed access to legal aid for thousands of children was unlawful. While this change is extremely welcome, the Government must now commit to ensuring that it reverses other measures in LASPO so that all children, including care leavers, have access to the legal aid they need to ensure their rights and entitlements in relation to their immigration status and citizenship are respected.

Impact of Covid-19

Background

Measures affecting individuals

Casework examples

Access to justice:

 

Recommendations:

  1. Legal aid should be granted to all children, irrespective of any means and/or merits requirement.
  2. Gross and disposable income limits should be brought in line with the cost of current living standards.
  3. Cost-Capping Orders, as a way of limiting potential costs liability, should be made available prior to permission to issue Judicial Review proceedings being granted, so to prevent that claimants face unlimited risk until permission is granted.
  4. Legal aid must be provided for school exclusion reviews and must be accessible in Tribunal disputes.
  5. The Government should implement the recommendations in the Taylor Review, therefore review the fee structure of cases heard in the youth court in order to improve the quality of legal representation and introduce mandatory training for all lawyers appearing in the youth court.
  6. Amend the criminal legal aid Interests of Justice test for all children, on the basis that it is unreasonable to expect any child to state their own case. The Interests of Justice: Guidance on the Consideration of Defence Representation Order Applications should be revised to ensure that all children, including 16 and 17-year-old children, are protected by the presumption of grant of legal aid.
  7. Data on the use of video links with children should be collected, fully disaggregated by age, ethnicity and Special Educational Needs and Disabilities, and monitored. The Government should commission an independent research on children’s ability to participate as well as the types of justice outcomes they receive.
  8. The Government must commit to ensuring that it reverses other measures in LASPO so that all children, including care leavers, have access to the legal aid they need to ensure their rights and entitlements in relation to their immigration status and citizenship are respected.

 

October 2020

 


[1] Legal Action Group (2014) The education problems still covered by legal aid https://www.lag.org.uk/article/202534/the-education-problems-still-covered-by-legal-aid

[2] Just for Kids Law and 4in10 (2020) Race, poverty and school exclusions https://justforkidslaw.org/sites/default/files/fields/download/Race%2C%20poverty%20and%20school%20exclusions%20in%20London.pdf

[3] Department for Education (2020) Permanent and fixed-period exclusions in England: 2018 to 2019 https://www.gov.uk/government/statistics/permanent-and-fixed-period-exclusions-in-england-2018-to-2019

[4] Edward Timpson (report commissioned by the Department for Education as a result of the Race Disparity Audit) (2019) Timpson Review https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/807862/Timpson_review.pdf

[5] Department for Education (2017) Exclusion from maintained schools, academies and pupil referral units in England paragraph 6 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/921405/20170831_Exclusion_Stat_guidance_Web_version.pdf

[6] CR v Independent Review Panel of the London Borough of Lambeth [2014] EWHC 2461 (Admin)

[7] Just for Kids Law has undertaken innovative projects to fill “advice deserts” including a web-toolkit and a series of school exclusion advice clinics. Through these, we conducted outreach to interested organisations around the country and most reported receiving routine enquiries about support with exclusion, but were unable to assist.

[8] Justice (2019) Challenging School Exclusions https://justice.org.uk/our-work/administrative-justice-system/challenging-school-exclusions/

[9] Legal Action Group (2014) The education problems still covered by legal aid https://www.lag.org.uk/article/202534/the-education-problems-still-covered-by-legal-aid

[10] United Nations (2019) General comment No. 24 (2019) on children’s rights in the child justice system https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f24&Lang=en

[11] Centre for Social Justice (2012) Rules of engagement: changing the heart of youth justice https://www.centreforsocialjustice.org.uk/core/wpcontent/uploads/2016/08/CSJ_Youth_Justice_Full_Report.pdf

[12] Wigzell, A, Kirby, A and Jacobson, J (2015) The youth proceedings advocacy review: final report https://www.barstandardsboard.org.uk/uploads/assets/8ce6f0eb-5583-4e4a8f24f1d530eef1d7/yparfinalreportfinal.pdf

[13] Lord Carlile (2014) Independent Parliamentarians’ inquiry into the operation and effectiveness of the youth court http://michaelsiefffoundation.org.uk/content/inquiry_into_the_operation_and_effectiveness_of_the_youth_court-ukcarlile-inquiry.pdf

[14] Children’s Rights Alliance for England State of Children’s Rights in England 2017: Policing and Criminal Justice http://www.crae.org.uk/media/124474/B8_CRAE_SCR2017_POLICING_D.pdf#:~:text=2%20State%20of%20Children%E2%80%99s%20Rights%20in%20England%202017,or%20unlawful%20interference%20with%20his%20or%20her%20privacy%2C  (original source: Ministry of Justice/Youth Justice Board (January 2017) Key Characteristics of Admissions to Youth Custody April 2014 to March 2016 England and Wales https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/585991/key-characteristics-of-admissions-april-2014-to-march-2016.pdf)

[15] Charlie Taylor and Ministry of Justice (2016) Youth Justice Review: final report https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/577103/youth-justice-review-final-report.pdf

[16] The Law Society (2019) Justice on Trial

[17] Ministry of Justice and Youth Justice Board (2020) Youth Justice Statistics 2018/2019 England and Wales https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/862078/youth-justice-statistics-bulletin-march-2019.pdf

[18] UN Committee on the Rights of the Child (2019) General Comment number 24 Children’s rights in juvenile justice http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsqIkirKQZLK2M58RF%2f5F0vEnG3QGKUxFivhToQfjGxYjV05tUAIgpOwHQJsFPdJXCiixFSrDRwow8HeKLLh8cgOw1SN6vJ%2bf0RPR9UMtGkA4

[19] House of Parliament (2018) Age of Criminal Responsibility https://yjlc.uk/wp-content/uploads/2018/06/ACR.pdf 

[20] Unlock (2018) A life sentence for young people: A report into the impact of criminal records acquired in childhood and early adulthood http://www.unlock.org.uk/wp-content/uploads/youth-criminal-records-report-2018.pdf

[21] House of Commons (2017) Disclosure of youth criminal records https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/416/416.pdf

[22] Charlie Taylor/Ministry of Justice (2016) Youth Justice Review: final report; Lord Carlile of Berriew/National Children's Bureau (2014) Independent parliamentarians' inquiry into the operation and effectiveness of the youth court; Prison Reform Trust (2016) In Care, Out of Trouble: How the life chances of children in care can be transformed by protecting them from unnecessary involvement in the criminal justice system, an independent review chaired by Lord Laming http://www.prisonreformtrust.org.uk/Portals/0/Documents/In%20care%20out%20of%20trouble%20summary.pdf

[23] All courts have a duty to consider the welfare of any child before them, whether as a witness, victim or defendant: “Every court in dealing with a child… shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.”  See s44(1) Children and Young Person’s Act 1933 and Article 3(1) United Nation Convention on the Rights of the Child which states that the best interests of the child are a primary consideration for all public bodies, including courts.

[24] Criminal Practice Directions - October 2015 as amended April 2016, November 2016, January 2017, April 2018, October 2018, April 2019, October 2019 & May 2020 https://www.justice.gov.uk/courts/procedure-rules/criminal/docs/2015/crim-practice-directions-I-general-matters-2015.pdf

[25] The Standing Committee for Youth Justice (2018) They just don’t understand what’s happening or why: A report on child defendants and video links http://scyj.org.uk/wp-content/uploads/2018/04/SCYJ-Child-defendants-and-video-links.pdf

[26] The University of Surrey (2020) Video Enabled Justice Programme: University of Surrey Independent Evaluation https://www.sussex-pcc.gov.uk/our-priorities/access-to-justice/video-enabled-justice-vej/video-enabled-justice-programme-university-of-surrey-independent-evaluation/

[27] Crown Prosecution Service (28 April 2020) Young Offenders https://www.cps.gov.uk/legal-guidance/youth-offenders

[28] Crown Prosecution Service (14 April 2020) Coronavirus: Interim CPS Case Review Guidance – Application of the Public Interest Covid-19 crisis response https://www.cps.gov.uk/legal-guidance/coronavirus-interim-cps-case-review-guidance-application-public-interest-covid-19

[29] United Nations Convention on the Rights of the Child Art 40 3(b) ‘Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.’

[30] Refugee & Migrant Children’s Consortium (2018) Immigration legal advice and representation for children, young people and families –Evidence from the Refugee and Migrant Children’s Consortium for the LASPO Post-Implementation Review https://www.childrenslegalcentre.com/wp-content/uploads/2018/11/Immigration-legal-advice-and-representation-for-children_RMCC-briefing_Final.pdf

[31] Patel and others (Appellants) v Secretary of State for the Home Department [2013] UKSC 72

[32] Free Movement (28 April 2020) The dismal Home Office response to coronavirus: the wider picture

https://www.freemovement.org.uk/the-dismal-home-office-response-to-coronavirus-the-wider-picture