Legal Update: Reforms threaten access to justice

Bringing a claim in the High Court for review of an unlawful decision by a public body provides individuals with one of the most important means they have to challenge abuses of power by the state. The process of judicial review is central to accountability and the exercise of the rule of law in the UK and any reform of the process is of constitutional importance.

For children in particular, it is vitally important to have accessible mechanisms for challenging unlawful acts or omissions by public bodies. Children are some of the main recipients of public services and have a great deal of contact with public bodies. Not only do public law challenges matter to the child concerned; issues at stake in such challenges can be of wider public importance and can have implications for the treatment of children and young people more generally.

The potential impact of the proposed reforms on one particular group of children and young people stand out – those who are subject to immigration control. Refugee and migrant children routinely have to contend with a number of complex administrative and legal proceedings, and judicial review proceedings are often the only way of ensuring they receive the support and protection they need. This is especially true for separated children who are in the UK alone, including unaccompanied asylum-seeking children. For example, judicial review provides the only remedy for an unaccompanied child to challenge an unlawful age assessment when they are disbelieved about their age, or for a child to challenge an unlawful decision about whether they are to be recognised as a victim of trafficking by the UK Border Agency. Officials in public bodies make decisions that determine these children’s futures; it is crucially important that unlawful decisions can be challenged.

The proposed reforms include changes to time limits, so that “the time limit to be applied in judicial review proceedings starts to run from the point at which the grounds for the claim first arose” (consultation paper, paragraph 65). The implications of this are not exactly clear, but it could mean that children and young people are unable to challenge ongoing breaches of their rights and unlawful delays. For instance, will a trafficked child who is unlawfully detained because they are disbelieved about their story and about their age be unable to challenge the lawfulness of their detention if they do not do so when their period in detention first begins? Will a challenge become more difficult the longer their unlawful detention continues?

Oral renewal hearings
The proposed reforms would also abolish the right to an oral renewal hearing, which is part of the process of applying for permission to bring a claim for judicial review in the High Court. This change would mean that some people who are refused permission to bring their claim based on a judge’s consideration of the relevant papers would lose their right to ask for their application to be considered again at an oral hearing.

This is worrying because oral renewal hearings enable people to test arguments in person as well as in writing, which is particularly important for those who have no legal representation and have to represent themselves, and for vulnerable individuals who may speak English as an additional language or not be able to read or write. In addition, the government proposes introducing a fee for an oral renewal hearing, further increasing the cost of bringing a claim for judicial review, which is already very expensive.

These proposed reforms to the civil justice system must be seen in the context of cuts to civil legal aid that will come into effect on 1 April, leaving thousands of children and families to face complex judicial proceedings without legal advice and representation. Making processes for judicial review stricter for claimants at such a time compounds the barriers to accessing justice.