Legal Update: Cuts will deny access to justice

In the wake of already enormous cuts to civil legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the government issued a consultation on further huge changes to both criminal and civil legal aid, which closed on 4 June.

If implemented, these changes would have a huge impact on the ability of some of the most vulnerable children and young people to access justice and enforce their rights and the protections that the law provides them.

Criminal and prison law
The changes are far-reaching and would include a total restructuring of the way that legal aid is provided in criminal law. One of the proposals in this area that will affect children and young people in the criminal justice system is the proposed removal of choice. This means that a child or young person at the police station would not be able to decide who they want to represent them; instead, a solicitor could be allocated on an arbitrary basis. Quality is at risk and specialist firms working with children and young people face closure, as a completely new system displaces the current criminal legal aid landscape, with 1,600 firms reduced to just 400 providers.

Proposals in the area of prison law would cut legal aid for certain sentencing matters, including resettlement cases about what is going to happen to a child upon release. The proposals would cut legal aid for all disciplinary matters unless they are referred to an independent adjudicator. These changes would mean that children, young people and parents in custody would not get legal support and would instead be expected to resolve their problems on their own through the complaints system. There are no proposed exemptions for children or vulnerable prisoners, including those with mental health needs or disabilities.

Migrant children
The proposed residence test would have drastic consequences for thousands of children, young people and families and threaten their access to legal aid in those areas of law where legal aid still exists following previous cuts. No one without regular status – including the children of parents who have overstayed a visa or have a failed asylum claim – would be able to get legal aid at all. Every applicant for legal aid would have to show 12 months’ lawful residence.

Thousands of children and families would not be able to get a lawyer to deal with cases in the areas of public law (judicial review), community care, special educational needs, clinical negligence, homelessness, certain private law family cases (domestic violence cases, child abduction) and even public law family proceedings (care cases).

This will affect many thousands of children, both those in families and separated children in local authority care. No baby under 12 months old in the UK would be able to get legal aid for a lawyer, for example in care cases or clinical negligence cases.

Government acts unlawfully
When a public authority acts unlawfully, often the only way to challenge this is through an application for judicial review made to the High Court. This is a very important means of ensuring accountability and holding the state to account when rights are violated.

The government is proposing drastic changes to the way legal aid lawyers would ?be paid, which will make it unviable for lawyers to bring these claims, and making it effectively impossible for those who cannot pay to challenge unlawful treatment at the hands of the state.

For more information, see the Coram Children’s Legal Centre briefing

Legal Update is produced in association with experts at Coram Children’s Legal Centre

For free legal advice to frontline professionals on all child protection and safeguarding issues call 020 7636 1245

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