LAI0076 - Evidence on The implications for access to justice of the Government's proposals to reform Legal Aid

Written evidence submitted by the Children’s Society (LAI 0076)

Introduction

The Children's Society is a leading national charity, driven by the belief that every child deserves a good childhood. We provide vital help to the most vulnerable children, young people and families in our society through a range of services. We work with around 48,000 children each year, supporting them and advocating on their behalf to tackle discrimination and disadvantage in their daily lives. Our services include helping children and families access services such as health, education and legal advice, apply for financial support and find safe accommodation.

Although we welcome the government’s recent changes to its proposals under ‘Transforming legal aid’, we remain extremely concerned that the amended proposals will not protect the rights of thousands of children, young people and families who will be unable to access justice as a result of these further cuts to civil legal aid.

For further details, please contact Ilona Pinter, Policy Adviser, on 020 7841 4400 or at ilona.pinter@childrenssociety.org.uk.

Key messages

Legal aid is already only available to those who cannot afford to pay for advice and representation to resolve their legal issues. It ensures that the poorest and most marginalised in our society are able to challenge decisions which affect their lives made by those with power and resources such as landlords, police, local authorities or government departments.

Despite the government’s further exemptions to the residence test, many thousands of vulnerable children, young people and families will still be unable to seek and obtain justice, leaving them at risk of destitution, homelessness, exploitation and abuse.

We believe these proposals are inconsistent with the governments’ commitment to protect 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 has already made devastating cuts to civil legal aid through the Legal Aid Sentencing and Punishment of Offenders Act 2012 which removed most immigration cases from scope As a result children and young people are unable to secure legal support to regularise their immigration status, which in turn will perpetuate their inability to access legal aid under the residence test to resolve other legal issues. These include being unable to challenge unlawful refusals of support from children’s services for children in need, unlawful school exclusions or refusals of support with special educational needs.

The impact assessments which accompanied the government’s consultation were wholly inadequate and show little evidence of consideration given to the impact on children and young people or their rights under domestic and international legislation.

Assessment of impact on children’s rights

We believe the impact assessment undertaken by the government in relation to these proposals is wholly inadequate. There is little evidence that the government has fully considered the impact of these proposals on children’s rights under the UN Convention on the Rights of the Child (UNCRC), despite its repeated commitment to giving ‘due consideration to the UNCRC Articles when making new policy and legislation’.

The UN Committee on the Rights of the Child recently emphasised this point, recommending that: “States should make clear in their legislation, policy, and practice that the principle of the best interests of the child takes priority over migration and other administrative considerations.” In addition, the Committee stated that “States should ensure that their legislation, policies, measures and practices guarantee due process in all migration procedures and judicial proceedings affecting the rights of children in the context of migration and/or those of their parents.”[1]

The changes are also in direct conflict with the government’s obligations to children and young people in relation to the child-friendly justice guidelines adopted by the Committee of Ministers of the Council of Europe in 2010 [2]. These guidelines apply to all domestic courts and tribunals, and aim to ensure that in legal proceedings, the rights of children, including the rights to information, representation, participation and protection, are fully respected.

We strongly oppose the introduction of this test and believe the proposal is discriminatory. The government’s revised equality impact assessment states that “the [residence] test as proposed may disproportionately impact on groups with protected characteristics namely non-British nationals, women and children”[3]. The second article of the UNCRC clearly states 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. This is reiterated in government guidance including the Home Office guidance ‘Every Child Matters’[4] which states that “Every child matters even if they are someone subject to immigration control”.

Vital safety net for access to justice

Legal aid is already limited and intends to provide a safety net for those who cannot access justice by other means for issues pertaining to their basic human rights. Whilst we welcome the government’s further exemptions, we believe the list of planned concessions is arbitrary, will be ineffective in protecting even the groups that have been exempt and would leave thousands of vulnerable migrant children and young people - who have no means to pay for legal advice and representation - without access to justice.

This will have detrimental consequences for both those who have not lived in the UK for 12 continuous months lawfully and those who are currently not lawfully in the UK, as well as British nationals who are unable to prove this. Our work in disadvantaged predominantly British communities has highlighted that many people who were born and raised in the UK have difficulties with proving their identity. We know that 17% of usual residents in England and Wales do not hold a passport [5]. This policy could therefore also have unintended consequences on the non-migrant population, particularly young people and families from deprived communities. We believe that this could lead to discrimination on the basis of race, ethnicity and language by those administering the test and could prevent poor residents from obtaining legal aid.

According to recent estimates there are 120,000 undocumented migrant children living in the UK, the majority of who were born here [6] and do have a strong connection to this country. Most have spent their formative years here – this is the only ‘home’ they know. Many will already be at risk of destitution, exploitation and social exclusion on the basis that their immigration status severely limits their access to public services and the labour market including health care, social housing and mainstream benefits. In their response the government explicitly refers to a number of groups as being particularly vulnerable including homeless people and children leaving care [7]. Yet these groups are not reflected in the exemptions.

We are particularly concerned by how the residence test will impact on:

Unaccompanied migrant children and care leavers
Refused asylum-seeking children, young people and families who cannot return to their country of origin
Children who have been abandoned by their parents or carers
Age disputed young people including those in immigration detention
Disabled migrant children and those with special educational needs
Young victims of trafficking and exploitation who do not access the National Referral Mechanism
Parents and children who are victims of domestic violence but cannot prove abuse and do not have documentation
Undocumented migrant children and young people more generally as those who are already at risk of homelessness, destitution, exploitation and social exclusion because of their irregular immigration status
Children, young people and families who have lawful residence (including refugee status, discretionary leave or humanitarian protection) who have been in the UK for less than 12 months but have no financial means

Babies under 12 months

During the consultation process we raised concerns that babies under 12 months of age, regardless of their nationality or immigration status, would be caught by the proposed residence test. The government has partially recognised this concern and has said that the second part of the residence test – the 12 months of continuous residence – does not apply to babies under 12 months. However, they would still need to meet the first part of the proposed test; that is they would need to be lawfully resident at the time of application for civil legal aid. This represents direct discrimination of children on the basis of their immigration status.

Care proceedings concession has very limited scope

The changes in the government’s response relating to the ‘protection of children’ cases are very limited. Although some cases will be protected - such as Section 31 care orders or Section 47 investigations (Children Act 1989) - most cases relating to the care, supervision and protection of children will not. For example, any ‘child in need’ cases (Section 17) relating to the additional care needs of a disabled child or support needs for homeless families, will not be covered. Equally cases involving unaccompanied children who are homeless and need appropriate accommodation, support, care and supervision (Section 20) will not be protected.

Through our direct practice we know that destitute families and unaccompanied children in particular [8], will sometimes require legal support in order to get the services they are both entitled to and in desperate need of. Without the vital life-line provided by legal aid, these young people are at risk of homelessness, abuse and exploitation.

CASE STUDY: Undocumented young person S

S approached The Children’s Society in the summer of 2012 when she was 18 years old. S was sent to the UK as a 6 year old, to join her father. S’s father returned to his home country when she was 14; she did not have any legal immigration status. Since then, S has been living with a friend and her family. She approached social services as a 17 year old ‘child in need’ but they wrongly refused to support her on account of her immigration status. At the point of referral, S was sleeping on her friend’s living room floor, had no financial support and was unable to attend university due to her status.

IMPACT: As this issue arose prior to the implementation of the changes under LASPO, non-asylum immigration cases were still within the scope of legal aid. We were able to refer S a reputable legal aid firm. The solicitor applied for leave to remain based on the immigration rules and Article 8 right to family and private life grounds. With the support of a welfare solicitor, we successfully challenged the local authority’s refusal to support her, when she was a minor arguing that they failed in their duty to uphold the Children Act 1989. S now receives housing and monetary support as a care leaver.

With changes under LASPO and the residence test, S would not have been able to access legal aid with either her immigration application or her support claim.

Homeless children and young people

A recent Newsnight investigation revealed that 15,728 children aged 16 and 17 years old asked for help with homelessness from local authorities. Of the local authorities that responded to the FOI request, 148 had unlawfully housed children in bed and breakfast accommodation in 2012 [9] despite statutory guidance stating that this type of accommodation is not suitable for children [10]. In our experience legally aided support, such as a letter before action, is often necessary to challenge such decisions. For example, The Children’s Society recently supported a migrant child who was abandoned by his carer in the West Midlands. The local authority acted unlawfully and provided him only with bed and breakfast accommodation. Despite advocacy from our services, we were only able to challenge the authority effectively with the help of a legally-aided solicitor and now he is properly supported under Section 20 of the Children Act 1989 with access to services as a looked after child. A recent Serious Case Review in Manchester highlighted how in extreme cases this can lead to disastrous outcomes for children, including suicide [11].

It is our experience that separated migrant children, especially 16 and 17 year olds, seeking care from local authorities find it difficult to get adequate accommodation and support, or are turned away altogether, often on the basis that they are from abroad, do not have documentation or because their age is disputed by the local authority. Homeless children presenting to local authorities would be affected by the residence test either because they would not qualify or because they cannot prove that they qualify. If the residence test comes in, these children in this situation will be left without this vital safety net.

We also see many vulnerable young people including those who are over 18, who are at risk of homelessness because of their immigration status and cannot get the help they need from the authorities. It is often with the help of legal aid that they are able to access the services they need.

CASE STUDY: Destitute young person from Iran who was ‘appeal rights exhausted’[12]

Peter is a young Kurd who came to the UK alone from Iran to seek protection. But the Home Office rejected his asylum claim before his 18thbirthday and six months later social services stopped his support and told him to go back to Iran. They called the police, who went to his house and broke down the door while he was not at home. They called him and told him to come to the police station. He was told that he could not go back to his house.

He was made homeless for nine months. During this time he slept on buses, stayed with friends and sometimes in a mosque. He was not able to eat every day. Sometimes he ate only once or not at all. He stayed in unsafe places and regularly experienced violence and abuse on the streets. When he was homeless he had a headache every day and was coughing a lot. He tried to commit suicide more than once.

Despite The Children’s Society’s advocacy the local authority would not rehouse him so we supported him to get a legal aid lawyer to challenge the local authority. Following this challenge the local authority agreed to rehouse Peter.

IMPACT: The residence test would mean that, as Peter was ‘appeal rights exhausted’, when the local authority made him homeless he would not be able to challenge this decision. As an Iranian national there is no lawful way for him to get documentation in the UK, as there is no Iranian embassy in the UK, and Peter is not able to return to Iran. So he would be left homeless and would be at risk from others and at risk of harming himself.

Although we advocate directly on behalf of children and young people, often budgetary pressures and a lack of understanding and clarity about statutory responsibilities, mean that we need to refer children and families to solicitors to challenge statutory agencies regarding unlawful practice. Where a child or family is homeless, this requires a fast response which cannot always be done through advocacy or complaints procedures. Without the means to challenge authorities, these children and young people risk becoming or remaining street homeless, and continuing to suffer abuse and exploitation.

Increased risk of exploitation and abuse

The residence test will place more children and young people at risk of exploitation and abuse, whether because they are homeless, have no alternative financial means or are desperate to resolve their legal issues.

We have become concerned that some young people we work with are being exploited by their legal representatives. For example, one of our projects has been supporting a young person who is in need of immigration advice and she disclosed to us that she has been sexually assaulted by her legal representative. She told us that prior to her current solicitor, she had had similar experiences with two other solicitors – one had forced physical intimacy by “groping” her. We have supported her to lodge a complaint and this is being investigated. We have also heard from this young person that some of her female friends who are in similar situations are sleeping with their legal advisers as they believe that this is the only way to get legal representation.

These young people often have little or no emotional support or guidance from an adult or carer due to the absence of any family members in this country. As they are desperate to resolve their legal issues, this makes them further vulnerable to exploitation by unscrupulous individuals and can easily be made to feel that, what is in fact sexual exploitation and manipulation is ok and necessary to help them resolve their case.

Importantly, while all legal aid lawyers working with children do have to be CRB checked; private lawyers do not. Although this is not completely robust, it is an important safeguard to protect children and vulnerable adults from harm. Without entitlement to legal aid, these children and young people will become even more powerless and open to exploitation, including by unscrupulous legal representatives.

Suspected victims of trafficking

Among the separated children who will miss out on vital legal aid as a result of the residence test are children who are suspected victims of trafficking. These children are likely to be without documents or have entered the country on false documents. The government has made a concession to exempt some victims of trafficking, namely those who have been identified under the National Referral Mechanism (NRM) as having ‘reasonable grounds’ that they are victims of trafficking. This means that prior to an NRM referral and while awaiting the ‘reasonable grounds’ decision, a young victim of trafficking will not able to get legally-aided advice or support from a solicitor unless they have an asylum claim.

This is problematic for a number of reasons and will render the concession meaningless for many young victims of trafficking. Firstly, according to the government’s own figures, over 65% of potential victims of trafficking were not referred to the NRM in 2012 [13]. This is partly down to a lack of awareness among frontline professionals of the existence of the NRM [14] and that being referred to the NRM is not necessarily in the best interests of the child. For example, in our recent review of the care arrangements for trafficked children [15], one professional said that:

“I don’t find the National Referral Mechanism process particularly helpful right now just because a lot of the NRMs I am completing are coming back as negative results, because they are saying that the exploitation element can’t be proved. So although you can prove that the young person has come in to the UK illegally through what you call ‘agents’ or ‘traffickers’ ...and they have been exploited on the journey, either sexually exploited or physically beaten, money taken off them, so on and so on, you can’t prove the exploitation element once they are in the UK very easily – so for that reason they are coming back negative which is very frustrating, because you know, or you certainly suspect, that exploitation is occurring”

Age disputed children

Separated migrant children including those who have been victims of trafficking, may have their age disputed by the local authority. For example, ten of the seventeen young people we interviewed in our recent child trafficking research had undergone age assessments [16] although they were all eventually found to be children by the authorities. If a trafficked child escapes their trafficker, is referred to children’s services who dispute the child’s age because they have come in on false documents, the child will not be able to access legal aid to challenge the age assessment [17]. They would either need to claim asylum first or would need to be referred and accepted by the NRM to be a victim of trafficking which takes at least 5 days. It is difficult to see how these additional requirements for accessing support are in children’s best interests or likely to help them overcome the already significant barriers that they experience in getting support (as demonstrated by our research). By removing the right to access legal aid prior to being referred to the NRM, child victims of trafficking will be in a powerless position if their age is disputed by the local authority and if they are refused adequate support. This means they could remain homeless, be placed in inappropriate accommodation without supervision or access to services, and placed at risk of harm, detention, deportation, or re-trafficking.

Young asylum seekers and refugees with status

With respect to the exemption for asylum seekers, the government has amended the original proposals to say that the period of lawful residence should start from the date an asylum claim is submitted rather than the date an individual gains refugee status. This means that those who are accepted as refugees, or are granted another form of leave such as discretionary leave or humanitarian protection, almost immediately would then be ineligible for legal aid for almost a year subsequent to recognition.

The average processing time for an initial asylum decision for a child in 2012-2013 was 127 days (or approximately 4 months)[18]. For the initial decisions in unaccompanied children’s cases, grants of asylum or humanitarian protection were made in 19% of cases while 46% of cases were refused asylum and received discretionary leave (in 2011).

This seems counter-intuitive since children and young people with an overwhelming strong case for recognition would be disadvantaged while those whose cases are more complex and take longer, and therefore retain the status as asylum seekers for the purpose of legal aid, would not lose out on legal aid on account of the residence test.

Recommendation: The government should abandon the proposals to introduce a residence test because despite the government’s listed exemptions, the test will leave thousands of vulnerable children and young people out of scope from the vital support provided by legal aid. This is vital in ensuring that children, young people and families, who will have no other means of paying for legal support, are able to access justice.

September 2013

[2] Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted by the Committee of

Ministers on 17 November 2010, at the 1098th meeting of the Ministers' Deputies, available at:

https://wcd.coe.int/wcd/ViewDoc.jsp?id=1705197&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackC

[5] 2011 Census: Passports held, local authorities in England and Wales (27 March 2011): http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-286262

[6] Sigona, N. and Hughes, V. (2012) ‘No way out, no way in: Irregular migrant children and families in the UK’ http://www.compas.ox.ac.uk/fileadmin/files/Publications/Reports/NO_WAY_OUT_NO_WAY_IN_FINAL.pdf

[11] The Serious Case Review of Child S in Manchester involved a teenager who was abandoned by his father. After a period of street homelessness and despite being an unaccompanied child, he was eventually placed in bed and breakfast accommodation by the local authority where he later committed suicide. He had not receive the support he was entitled to as a child: http://resources.leavingcare.org/uploads/60fec78b9daa74ee5c0b036e096a8854.pdf

[14] Children and Families Across Borders (CFAB) has 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. 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.

[15] Refugee Council and The Children’s Society (2013) Still at Risk: A review of support for trafficked children