Written evidence from Coram Children’s Legal Centre response

 

 

 

 

 

 

 

 

 

 

 

Introduction

 

There has historically been a strong legal framework for the protection and support of children and young people in England and Wales. The legal aid system, introduced in 1949, was based on the belief that every person should have equal protection under the law, regardless of financial position or status. It was designed to ensure that those who could not pay were not left without legal advice and representation. The introduction on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) made major changes to the system and has made it much more difficult for children and young people to enforce and realise their rights. If children, young people, or those caring for them, cannot take steps to ensure the law is upheld, they can be left without a home, without status, excluded from education, and separated from their family. The introduction of LASPO has meant that since April 2013, legal aid is no longer available for employment, many education issues, non-asylum immigration, private family law, many debt and housing cases, and most welfare benefits cases. In these areas of law, individuals must either pay privately for their own legal advice and representation, attempt to obtain legal aid through exceptional case funding and representation or represent themselves.

 

Coram Children’s Legal Centre has previously provided representations on problems with the legal aid system and in February 2018 published the report Rights without remedies (2018 report)[1], examining in great detail the problems children had in accessing justice when interacting with the legal aid system.

 

Legal Aid Agency

 

There have been a number of issues around policy and practice within the Legal Aid Agency. Dr Jo Wilding, in her report on legal aid in immigration, highlights a number of these issues, including around understanding of cuts, fees and rates and timing of payments[2]. Others, including the Immigration Law Practitioners Association, will also highlight issues with policy and practice, so we have set out problems relating to a particular issue for children, young people and families – Exceptional Case Funding (ECF). 

 

There have been issues with ECF since its inception, often failing the most vulnerable children and young people. The ECF scheme is not child-friendly - It is difficult to explain to children, and children are likely to struggle to present the detailed information and evidence required. The number of children applying for ECF are extremely low – but the grant rate for their applications is high. ECF is also not providing a sufficient safety net for urgent cases. The LAA’s decision-making times are slow and getting slower, and the current system in place for urgent cases doesn’t work, leading to applicants suffering serious consequences without access to redress.

 

The Legal Aid Agency must reform the ECF system. In the immediate term, and in line with previous calls, a question should be added to the CIV ECF1 form to ask about the rights and interests of any affected children. Where the applicant is a child, a presumption should operate so that the child could expect to have their case for civil legal aid funding granted, in line with children’s rights standards. The LAA should accordingly publish guidance for its casework staff deciding ECF applications on how to handle applications affecting children. There also needs to be a public information campaign on exceptional case funding and legal aid eligibility in general. In particular, further work should be done to promote the use of the ECF to those working with children and young people, in an effort to counter the low proportion of applications from them. The Legal Aid Agency should ensure that sufficient resources are allocated to allow for urgent cases to be decided within an appropriately quick time-frame.

 

Recruitment and retention problems among legal aid professionals

 

In relation to recruitment and retention problems, one of the main issues has been the significant cuts to legal aid at the same time as increased demand for legal services. The Law Society has highlighted the problem of legal aid advice deserts for housing and community care, highlighting that more than 37 million people in England and Wales live in a local authority area without a single community care legal aid provider and 78% of local authorities do not have a single community care legal aid provider.[3] Furthermore, Dr Jo Wilding’s report notes details significant issues with legal aid provision in the immigration legal aid sector.[4] In our 2018 report we highlight the significant reduction in legal aid providers for education matters – there were 49 providers in 2012, reduced to 24 when the Justice Committee looked at the matter in 2014. There are now only 2 education legal aid providers.

 

These cuts to the sector inevitably impact recruitment and retention and raise questions about the sustainability of the sector as a whole. In addition to the effects of removing areas of law from scope, the National Audit Office has highlighted that the Ministry of Justice had reduced the fees it pays for legal aid, but ‘does not know if the market is sustainable at the current level of fees’.[5] As made clear by the Justice Committee, once capacity and expertise are lost, they will be extremely difficult to restore.[6]

 

Working in the legal aid sector in England & Wales is incredibly difficult, particularly given the cuts to the sector. It is not uncommon to see high turnover in firms, law centres and third sector organisations, as well as the closure of law centres and firms that have provided a vital, and sometimes only, service to vulnerable communities. In addition, increased attacks on access to justice and the legal sector have an impact, and recent interventions have been condemned by many, including ILPA[7]  and the Law Society[8].

 

Court reform and technology

 

We do not have significant comment to make on this area but would highlight Justice’s reports on the digital services and the immigration and asylum chamber.[9]


Covid-19 – services and clients

 

The overall impact of Covid-19 on services and clients will not be fully understood for sometime. Currently, at CCLC we have seen a significant impact on our ability to provide services to vulnerable children and young people, including in our outreach and legal practice units. Covid-19 has had a significant impact on the refugee and migrant children, young people and families whom we support. Young people and families are confused about their rights in the pandemic as the problems they face intensify, and professionals and adults supporting them struggle to do so effectively with current restrictions. Unaccompanied asylum seeking children arriving during the pandemic have seen significant delays to their asylum claim due to the rigidity in the system and have at times struggled to obtain legal advice on the delays. Children and young people seeking to realise their rights through the EU Settlement Scheme, already at risk due to the upcoming deadline to apply, have found it more difficult to obtain advice and representation in cases. The longer term impact of Covid-19 will be further pressures on legal aid providers, less supply with an increasing demand, as well as further backlogs to decisions and appeals.

 

Legal aid - the next decade

 

Legal aid is essential in ensuring people are able to realise their rights. The reduction in scope and availability of legal aid has had a significantly detrimental impact on children and young people’s human rights. We have found that removing whole areas of law from scope has meant that children, young people and families who cannot afford to pay for legal advice, assistance or representation are, in many cases, unable to use the justice system to take action to secure their rights or access services to which they are entitled.

 

Attempts to fill the legal aid gaps, such as pro bono and independently funded work, are only ever going to be piecemeal and a form of firefighting when compared to a properly funded legal aid system. As highlighted in our 2018 report, demand for legal services has gone up, while supply has gone down. For example, users of our Child Law Advice Service saw significant increases following the introduction of LASPO. Those numbers have continued to increase following the 2018 report, with numbers of calls and users continuing to increase.

 

As important as legal advice and representation is the provision of public legal education. If individuals are unable to identify issues in their lives as legal problems, they cannot set about resolving them using the law. In our 2018 report we highlighted the importance of public legal education and one recent example of this was the re-introduction of legal aid for separated children for ‘immigration matters’.[10] Although this change was welcomed, there has remained a lack of information and understanding around the change, with a failure to raise sufficient awareness of the change, as well as the impact it has for separated children.

 

In our 2018 report, we made a number of recommendations, including:

 

We still believe that the recommendations above, as well as other highlighted in this response, need to be urgently considered to prevent further harm to vulnerable children and young people attempting to access justice effectively.

 

October 2020

 

 


[1] https://www.childrenslegalcentre.com/rights-without-remedies/

[2] http://www.jowilding.org/assets/files/Droughts%20and%20Deserts%20final%20report.pdf

[3] https://www.lawsociety.org.uk/en/campaigns/legal-aid-deserts

[4] http://www.jowilding.org/assets/files/Droughts%20and%20Deserts%20final%20report.pdf

[5] National Audit Office, ‘Implementing Reforms to Civil Legal Aid’, 20 November 2014, p. 8

[6] House of Commons Justice Committee, ‘Impact of changes to civil legal aid under Part 1 of the Legal Aid Sentencing and Punishment of Offenders Act 2012’, (Eighth Report of Session 2014-15) §89

[7] https://ilpa.org.uk/rhetoric-against-immigration-lawyers/

[8] https://www.lawsociety.org.uk/en/contact-or-visit-us/press-office/press-releases/attacks-on-the-legal-profession-undermine-the-rule-of-law

[9] https://justice.org.uk/our-work/assisted-digital/ & https://justice.org.uk/new-justice-working-party-report-on-immigration-and-asylum-appeals/

[10] https://www.childrenslegalcentre.com/legal-aid-separated-children/