The Bach Report: (15) The rights of children to access to justice

This is the thirteenth in the new series of blogs which will start with relevant extracts from the Bach Commission’s Final Report. These will be followed by the more detailed treatment I gave to the topic in one of the chapters in Appendix 5 to the Report.

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

This paper covers one of the most worrying aspects of the Government’s conduct in connection with LASPO.  It has been repeatedly told that it is in breach of this country’s international obligations, but it has done nothing about it.

1. EXTRACTS FROM THE REPORT

Widening the scope of funded legal representation

When it comes to legal representation, the commission does not seek to simply return to the pre-LASPO scope of civil legal aid. We recognise the financial constraints, and the political reality. In the future it should be for our proposed Justice Commission to make evidence-based recommendations on where funded legal representation is routinely needed to uphold the right to justice.

However, there are a number of areas of law which we believe should be returned to scope for legal representation. These include all law concerning children, and some aspects of family law and immigration law. …

Children

It is extremely concerning to the commission that matters involving vulnerable children in areas of law such as clinical negligence, immigration and debt have been taken out of the scope of legal aid. The Office of the Children’s Commissioner has published work which shows that, as a result, children have been forced to become litigants in person, obtain advice and support pro bono or from the already stretched voluntary sector, or are not attempting to resolve their legal problems at all.[1]

The United Nations Convention on the Rights of a Child (UNCRC), to which this country is a signatory, states in article 12 that the state

shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”

In particular,

the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”[2]

A wide array of organisations and reports have found our current arrangements for the provision of legal support for children wanting. In March 2015 the Joint Committee on Human Rights, for example, described the effects of LASPO on children as a

significant black mark on [the government’s] human rights record.[3]

The commission recommends that all matters involving children should be brought back into the scope of funded legal aid. It has been estimated this would cost £7m per annum.[4]

 

APPENDIX 5 TO THE REPORT

CHAPTER 9: The Rights of Children to Access to Justice

International obligations

The United Nations Convention on the Rights of the Child (UNHRC), which this country has ratified, provides, so far as is relevant:

Article 2

  1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind…,

Article 12

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

In December 2013, the Joint Committee on Human Rights, in its report on the Government’s ‘Transforming Legal Aid’ proposals[5] criticised the Government for its failure to fulfil its duties to consider the specific needs of children and young people. It stated unequivocally:

We do not consider that the removal of legal aid from vulnerable children can be justified.

Whilst commenting that it was

“sure that the Government does not intend vulnerable children to be left without legal representation”,

it said that the Government had failed to fully consider its obligations under the UNCRC.

In September 2014 the Office of the Children’s Commissioner (OCC) in England published a Child Rights Impact Assessment which examined the impact on the rights of children and young people under the UNCRC of the changes to civil and prison law legal aid that had been implemented since April 2013.[6] It contained the following findings:

  • Children and young people were attempting to deal with decision-makers directly without support, including the pursuit of formal proceedings as a litigant in person (LIP) (or through an adult litigation friend). They said that they felt intimidated from appearing unrepresented at hearings. The OCC report stated that:

in these circumstances, it is very unlikely that a child or young person can effectively participate in the hearing, nor that all relevant information can be put before the tribunal to enable them to make a decision fairly and in the child’s best interests.

  • Children and young people had been attempting to obtain legal assistance pro bono or from the voluntary sector, which was unable to cope with the increased demand.
  • Children and young people had been paying privately for legal advice, assistance or representation – an option that was only available to very limited numbers of young people acting without adult support.
  • Children and young people were ceasing to attempt to resolve their legal problems. This left “significant numbers” of children and young people with problems requiring resolution which were no longer in scope for funding, and in respect of which alternative help was limited. “A negative impact on them and their families” was the result.

The OCC concluded that a wide range of rights under the UNCRC were likely to be negatively impacted by the civil and prison law legal aid changes:

These include both the rights enjoyed during proceedings – those under Articles 2 (non-discrimination), 3(1) (best interests to be a primary consideration), 12 (right to be heard) and the specific guarantees attached to specific proceedings (e.g. in Article 9 re separation from parents) – and substantive rights which are being infringed because of the legal problem that the child or their parent/carer is encountering. Therefore, we consider that urgent review and reform is needed in order to ensure that the Legal Aid system can adequately protect the rights of children and young people and that the Government’s obligations under the UNCRC are met.

In March 2015, the Joint Committee on Human Rights again criticised the Government for its failure to fulfil its duties under the UNCRC, this time in starker terms:

The Government’s reforms to legal aid have been a significant black mark on its human rights record during the second half of this Parliament…. the evidence we heard from the outgoing Children’s Commissioner for England and from all the NGOs we took oral evidence from provides firm grounds for a new Government of whatever make-up to look again at these reforms and to undo some of the harm they have caused to children.[7]

The UN Committee on the Rights of the Child, which will be examining the UK Government’s record on children’s rights later this year, has recently signalled that access to justice for children in the context of cuts to legal aid is amongst its primary concerns.[8]

Options for the future

In June 2017 Justrights, which campaigns for fair access to advice for children and young people, published an updated edition of its options paper entitled “Securing Access to Justice for Children and Young People”. This paper set out options for decision-makers to tackle the adverse impact of legal aid cuts on children and young people. Although it considered that all these options were viable, it thought the priority for decision-makers should be a combination of Options 1 and 4, which are reproduced below:

OPTION 1: Reinstate cuts to legal aid for children and vulnerable young adults[9]

There is cross-party support for providing access to legal aid for all children under the age of 18 and vulnerable young adults.

During the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill 2012 (LASPO), the Government was defeated in the House of Lords in a vote on an amendment that would have exempted all children with legal cases in their own right (i.e. independently from parents/carers) from the scope changes. The amendment was subsequently overturned in the House of Commons, affecting 6,000 children each year.

There was also cross-party support during the debates on the LASPO Bill for protecting vulnerable young adults, defined as those who are care leavers, have a disability or are otherwise vulnerable.[10]

Estimate of cost implications[11]

To bring back into scope all cases where the recipient of legal aid is:

  • A child under 18 – c.£7m per annum to reverse LASPO. Number of cases: 5,685
    • Immigration – 2,490 cases costing £1.1m
    • Debt – 280 cases costing £0.1m
    • Employment – 90 cases costing £0.0m
    • Housing – 430 cases costing £0.1m
    • Welfare Benefits – 1,330 cases costing £0.3m
    • Actions Against Police – 90 cases costing £0.1m
    • Education – 110 cases costing £0.4m
    • Clinical Negligence – 400 cases costing £3m
    • Personal Injury – 300 cases costing £1.6m
    • Miscellaneous others (incl. Asylum, Consumer and Public Law) – 165 cases costing £0.3m
  • A young adult aged 18-24 with a disability, who is a care leaver or ‘otherwise vulnerable’ – £4m per annum
    • Number of cases: c.12,000 – primarily social welfare and family cases

In addition, reversing scope cuts to prison law for all children and young people (under 25) would cost c.£1m per annum.

Advantages of this option include:

  • Existing cross-party support
  • A relatively low administrative burden for the Legal Aid Agency compared to other options – once the cases are back in scope, children and young people will be entitled automatically.

OPTION 4: Create a new young person-focussed legal support scheme

Create a new scheme dedicated to providing quality young person-focussed legal information, advice and representation. This, in conjunction with rolling back the cuts to legal aid (Option 1), would be by far the most effective option.

Key features, based on extensive consultation conducted with hundreds of young people earlier in 2014, should include:

  • Public legal education and self-help – including the development of a single website where young people could access all the information about their rights in one place: costs borne potentially by a charitable trust.
  • General information and advice provided through youth advice and support services in the community – dedicated funding to be provided by local authorities and the NHS in line with Department of Health policy to expand the provision of youth advice and counselling services as part of youth mental health reforms.
  • The establishment of a new fund for ‘Young people’s law’ – potentially including elements of social welfare, family and immigration law, but enabling specialisms – and tendering for legal aid providers in this new area. Contracts should allow flexibility for providers to meet the needs of vulnerable children and young people in the most efficient and effective way – with bureaucracy at a minimum. Funded out of existing legal aid spending on children and young people’s cases.
  • A network of specially trained lawyers for children and young people – potentially quality-assured through some form of kitemark for either practitioners or contract-holders. These could be professionals working in one area of law or working across multiple areas, but all would have specialist expertise in working with, safeguarding and representing children. National Occupational Standards for providing legal advice to young people have already been developed. The cost of the quality assurance system could be borne by the profession, as with the children’s panel or mental health accreditation schemes.
  • Delivery of legal advice would be co-located and integrated within services and institutions young people with the highest legal needs are already using – youth advice agencies, prisons, immigration detention units, mental health institutions, Youth Offending Services etc. There are some additional costs to providers of delivering services through outreach locations, but overall costs would not need to increase, and outcomes would improve, if existing spending was targeted on these specialist services.
  • The current exemption for children under 18 from the requirement to access the single mandatory Civil Legal Aid Gateway for legal aid funded advice in the areas of debt, discrimination and special education needs would be extended to age 24. Costs would be saved by dismantling the bureaucracy associated with the telephone gateway and eligibility assessments.

Cost:

This option would involve improving access, quality and outcomes at small additional cost. We would expect that legal aid budgets for independent, specialist advice would be ring-fenced under this model. This option does contain elements that would require additional financial support – including from local authorities and the NHS – to ensure the model works as envisaged. However, there would be some savings and cost efficiencies through utilising existing spend far more effectively, and drawing in co-funding from charitable trusts, the legal profession, NHS and local authority commissioners.

The advantages of this option include:

  • It would be based on children and young people’s needs rather than trying to change an existing bureaucratic system that has failed to serve young people’s needs consistently well.
  • Legal aid services for children and young people would be far better integrated with general advice for young people and public legal education.
  • It would involve less bureaucracy than the other options – a high proportion of spending would be on direct service delivery to the most vulnerable children and young people.

 

[1] Joel Carter, Office of the Children’s Commissioner and Just for Kids Law. (2014) The impact of legal aid changes on children since April 2013: Participation work with children and young people. Accessed September 2017: http://www.justforkidslaw.org/wp-content/uploads/2014/09/Just-for-Kids-Law-Report_final1.pdf

[2] United Nations Convention on the Rights of the Child. Accessed September 2017: http://www.unhcr.org/uk/protection/children/50f941fe9/united-nations-convention-rights-child-crc.html

[3] The Joint Human Rights Committee. (2015) Eighth Report: The UK’s compliance with the UN Convention on the Rights of the Child, Conclusions, at para.19. Accessed September 2017: https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/144/14402.htm

[4] JustRights. (2017) Securing access to justice for children and young people.

[5] Human Rights Joint Committee of UK Parliament. (2013) The implications for access to justice of the Government’s proposals to reform legal aid). Accessed September 2017: www.publications.parliament.uk/pa/jt201314/jtselect/jtrights/100/10002.htm

[6] Office of the Children’s Commissioner and Just for Kids Law. Joel Carter (2014) The impact of legal aid changes on children since April 2013: Participation work with children and young people. Accessed September 2017: http://www.justforkidslaw.org/wp-content/uploads/2014/09/Just-for-Kids-Law-Report_final1.pdf

[7] Joint Human Rights Committee. (2015) Eighth Report, The UK’s compliance with the UN Convention on the Rights of the Child. Accessed September 2017: https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/144/144.pdf

[8] Seventy-second session 17 May-3 June 2016, Item 4 of the provisional agenda: Consideration of reports of States parties: List of issues in relation to the fifth periodic report of the United Kingdom of Great Britain and Northern Ireland, Committee on the Rights of the Child, 29 October 2015.

[9] Young adults are age 18-24.

[10] House of Lords. (2012) Hansard, 27 March 2012, Column 1256. Accessed September 2017: http://www.publications.parliament.uk/pa/ld201212/ldhansrd/text/120327-0001.htm#12032757001721 .

[11] Based on data provided by MOJ on 10 November 2011 in response to a Freedom of Information request made jointly by JustRights and The Children’s Society.

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