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Holding the state to account is vital for children and young people
Recent proposals by the Ministry of Justice are a serious threat to the ability of children and young people to challenge decisions that fundamentally affect their lives.
Judicial review is a type of court proceeding where a judge looks at the lawfulness of a decision or action taken by a public body – such as a local authority or a police force. This provides a crucial check on these powerful public bodies to make sure their decisions are in line with the law and are open to scrutiny by judges.
The government has published proposals to restrict the role of judicial review for both individuals and organisations. The proposals include plans to reduce legal aid funding for judicial review and change the rules on who can start a claim.
If the proposals are implemented, many children and young people will be left with no way to challenge unlawful decisions made about them by public bodies.
Our response to the government's consultation sets out our concerns in more detail.
Only safeguard for many children and young people
Judicial review is particularly important when children and young people come into contact with complex legal processes. This includes where there are frequent changes to the law or where different areas of law interact – for example the immigration system and the care system.
From our services we know this particularly affects children from abroad who are on their own and do not have anyone looking out for them, for example unaccompanied asylum-seeking children, trafficked children and children who have been abandoned by their carers in the UK.
For some of these children, judicial review is the only option available because there is no right to appeal a decision that has been made and no other existing mechanism outside the courts. To take just one example, judicial review is the only way to challenge a child’s age assessment. Unaccompanied children in this situation are at risk of being left homeless, housed with adults or sent to adult immigration detention centres. Our research on support for child victims of trafficking highlighted cases just like this.
Threat of legal action can ensure child protection
Increasing pressure on public funds and wide-spread misunderstanding about the rights and entitlements of refugee and migrant children means that despite intense advocacy from our services, often only the threat of legal action makes public bodies act lawfully. This often leads to the case settling early in the young person’s favour.
Without judicial review many children and young people would remain homeless and be put at significant risk of exploitation and abuse.
For example, since 2008, The Children’s Society in the West Midlands has made 110 ‘child in need’ referrals to children’s services on the basis that a family was destitute and the child’s welfare needs were not being met. Only 8% of these families got support after the initial referral. 86% were eventually supported, usually after an intervention by a solicitor.
Charities provide expertise to act on behalf of children
Charities can currently be involved in judicial reviews by providing expertise on a specific matter where there is a wider public interest.
The government’s proposals aim to narrow the criteria on how organisations can bring a judicial review. And, they also increase the financial risks for organisations wanting to ‘intervene’ in a case. An intervention helps the court to understand the issues in the specific case better. It also helps inform the court about wider public interest issues raised by the case and how it applies to other children in a similar situation.
For example, in 2010, we intervened in a judicial review brought by a young person against a local authority. The case was about what support care leavers were entitled to but were not getting. The court ruled in favour of the young person. By doing this, it set a precedent for all other care leavers - and clarified that local authorities have a duty to provide accommodation for all young people leaving care at the age of 18 where their welfare requires it.
This was an important case and helped improve outcomes for young people leaving care who are now able to remain in care rather than being made destitute or dispersed through the Home Office asylum support system.
We want the government to abandon its proposals to limit access to judicial review. We believe they fail to take into account the role of judicial review in children’s access to justice.