Posted: 28 November 2016

Where is the justice for children?

Lord Bach’s review into ‘Access to Justice’, which was commissioned by the Labour party, published its interim findings on Friday. The commission’s membership includes Baroness Tanni Grey-Thompson and numerous legal professionals that have been involved in landmark cases, such as the Hillsborough trial. The commission has sought to measure accessibility of the current legal system for those in most need.

Legal Aid was introduced in 1949 as a safety net for some of the most vulnerable members of society. Legal Aid is supposed to ensure that everyone can access justice, even if they can’t afford expensive solicitors or legal advice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) saw a vast overhaul of access to legal advice and representation for many people.

Some of the worst affected are the children we support, including those that arrive in the UK alone or have been separated from their parents following arrival, specifically when they have an immigration cases where they do not claim asylum.

We have been extremely concerned about LASPO's impact

We have been extremely concerned at the impact LASPO reforms have had on access to justice for the children we support through our services and the commission echoes some of these concerns, including depletion in access to independent voluntary legal advice and representation services for the most vulnerable children, in some of the most complex immigration proceedings.

For the separated and unaccompanied migrant children that we support the complexity of their immigration cases, coupled with varying ability to understand the proceedings, has made it much harder to navigate these processes since LASPO. 

The Bach interim findings are stark. In evidence to the commission, Ben Hoare Bell LLP wrote that 'the system frequently crashes, does not work effectively, does not allow for emergency applications and is on a regular basis leaving children in situations of significant harm for weeks, often months at a time.'

The Bach interim findings are stark

It is our view that the government could help to remedy these issues by reinstating access to legal aid for these children. Our Cut Off From Justice report from 2015 explores the implications of children being left to navigate these complex cases without adequate support in place.

The ECF scheme has failed to mitigate effects of LASPO cuts

The commission has found that the exceptional case funding (ECF) scheme, designed to mitigate the effects of LASPO cuts to Legal Aid, has failed. When ECF was implemented as part of LASPO, the government suggested around 847 children and 4,888 young adults would be granted ECF each year.

The commission found that, between October 2013 and June 2015, only eight children and 28 young adults were granted legal aid under the scheme. Coupled with reduced access to voluntary legal advice services, it is disturbing to consider the impact of this on children in immigration proceedings.

Protecting children

Since LASPO 2012, we have found in our own practice that the Exceptional Case Funding scheme is wholly inadequate in supporting the most vulnerable children. The scheme is not meeting children’s needs and we believe it is actually unlawful to cut so many children off from justice in this way. The Children’s Society is bringing a legal challenge of the Lord Chancellor’s refusal to include immigration cases for unaccompanied and separated children within the scope of legal aid, in accordance with Article 8 of the Human Rights Act; right to a private and family life.

If you have seen cases of separated and unaccompanied children denied access to legal aid where they would have been within the scope of legal aid funding prior to LASPO, or where an ECF application has been refused, or where the child, or someone supporting the child, has had to complete ECF forms without legal guidance, we would like to speak with you.

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By Rupinder Parhar - Policy team