In April last year the government consulted on plans for a second round of cuts to legal aid and in early September the Ministry of Justice announced that it would proceed with its proposed "residence test" for civil legal aid. Despite some minor concessions, serious concerns remain about how this policy will impede children and young people's ability to enforce their rights.
The test
The proposed residence test will make everyone's access to legal aid in civil law matters dependent on producing evidence to prove that they are lawfully resident in the UK and that they have been lawfully resident for at least 12 months at some point in the past. Just as someone going to a legal aid lawyer for assistance has to, under the current rules, pass a means test to show that they are financially eligible, if the residence test comes in they will also have to show evidence of their immigration status and past residence in the UK.
The body that is responsible for administering legal aid reported that in 2012/13 there were over 925,000 "acts of assistance" in civil law (areas other than criminal law). While there are now fewer cases following cuts that took effect in April 2013, there are still hundreds of thousands of people, including children and young people, who will face an additional administrative hurdle to getting legal support with the problems they face. Even those who in theory meet the test may struggle to provide the paperwork they need to prove their entitlement. This is particularly true for vulnerable children and teenagers, including those in crisis situations such as those who are homeless.
Inadequate concessions
Those who will not pass the test include some child victims of human trafficking and some child asylum seekers, as well as children who are undocumented, for example if they were born in the UK to parents without valid immigration status. It is the decisions of others that result in these children being without legal immigration status, and yet they will be penalised and cut off from the support they all too often need to realise the rights that they hold as children under UK, European and international law.
In response to criticism, the government has made some concessions on children's cases. For example, it was recognised that no parent should be without legal aid if the state starts proceedings to take their child into care. However, some of these concessions will not mean much in practice. For example, certain Children Act 1989 cases are exempt for the initial stage but if it is necessary to start proceedings to take the case to court, at that point the lawyer will have to tell the child that their help will cease. Notably, special educational needs cases remain subject to the test.
Child exemption
The children's commissioner for England and many others have expressed deep concerns about how the test will cut some children and young people off from the legal assistance they need. They have highlighted that the proposed policy threatens the UK's compliance with the UN Convention on the Rights of the Child. The parliamentary joint committee on human rights, too, has recommended that all children be exempt from the test. And the policy is subject to a legal challenge in the High Court, on which the judgment is expected soon.
So far, however, the government has not heeded the recommendation to exempt children and intends to proceed in August with the implementation of a proposal that will impact significantly on the operation of the UK's legal aid system and leave some children without legal redress.
Legal Update is produced in association with experts at Coram Children’s Legal Centre
www.childrenslegalcentre.com
For free legal advice on issues relating to migrant children call 0207 636 8505
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