The Government plans to introduce a residence test whereby a person would be unable to claim, or rather would be ineligible for legal aid if they had not been resident in the UK for at least 12 months. The residence test does not exclude children from its application.
The Joint Committee state that it is unfortunate that the Government have not brought these laws in the form of Primary Legislation thus preventing proper scrutiny from each House, and request that should the Government seek to force through the law via a Statutory Instrument, then they expect the current version to be thrown out and an alternative which addresses their concerns placed before them in its place.
The Joint Committee raise a concern that the proposals would contravene the UK’s obligations under the United Nations Convention on the Rights of the Child (UNCRC), the Government have however replied claiming that the proposals are compatible with all human rights obligations.
In her evidence to the Joint Committee Dr Maggie Atkinson, the Children’s Commissioner for England and Wales stated:
“[T]he residence test is not compliant […] there are articles in the convention that absolutely guarantee the child—any child—the right of access to legal representation and to a legal friend and/or then in the more formal stages if the proceedings go so far as the courts.” (Legal Aid: Children and the Residence Test at page 7).
The Children’s Commission also argues that the proposals risked breaching a number of children’s rights protected by common law, the Human Rights Act, EU law, and the UNCRC, as follows:
“The [Office of the Children’s Commissioner] submits that in any administrative or judicial proceedings in which a child’s best interests fall to be determined the following rights arise:
(a) the child’s substantive right to have his or her best interests treated as a primary consideration;
(b) the adjectival, procedural right to receive advice and assistance so as to ensure the first right is practical and effective, not theoretical and illusory; and
(c) where legal proceedings are contemplated, the right of access to justice which also brings with it a right to legal representation.
Those rights may be derived from common law (as developed in the light of the UNCRC), under the HRA (through Articles 6 or 8) or (where within scope) EU law. Articles 6 and 8 must be read in the light of the UNCRC: see for example Neulinger v Switzerland [GC]  54 E.H.R.R. 31, at [132,135] […] Applying the Airey test; (a) the child’s bests interests are of ‘primary importance’; (b) the complexity of legal proceedings is such that, (c) coupled with the child’s age and immaturity, he or she cannot be expected to act without representation […]
[…] The OCC submits that the UK’s introduction of a Residence Test creates an unacceptable risk of a breach of the rights set out in paragraph 36. There is a ‘serious possibility’ or a ‘significant risk that such a breach will arise’.” (Legal Aid: Children and the Residence Test at page 8).
It would thus appear that in whichever legal direction one looks for guidance the same response can be found; that the residence test, if applied to children, cannot be compatible with domestic or international obligations to those children with respect to the provision of legal representation.
The Joint Committee address the compatibility of the proposals against three specific Articles of the UNCRC. Article 2: discrimination; Article 3: that the best interests of the child should be treated as the primary consideration in all matters which affect them; and Article 12: that children should have the opportunity to be heard in any administrative and judicial proceedings.
The Joint Committee finds that the proposals are incompatible with each of the three Articles. They claim that anything which makes it more difficult for a certain group of children to exercise their rights is wrong in principle and unlawful, and thus incompatible with Article 2. Nor could the Joint Committee conclude that the proposals were compatible with Article 3 in that the best interests of the child could be the primary consideration, or with Article 12 that without legal aid they could be heard, given that most children would be unable to properly represent themselves, and would not have someone who was not legally qualified, for example a family member, who would be able to represent them to a sufficient standard.
The Government’s principle argument in favour of the proposals is that only those with a strong connection to the UK should benefit from its taxpayer funded civil legal aid schemes. Yet, the Government’s failure to provide figures to clarify the level of savings expected from the implementation of the residence test, their primary justification for imposing it, fails to provide an adequate justification for such an obvious, yet denied, breach of the UK’s obligations towards children in legal proceedings.
The Government’s second justification, that this scheme, in the above format, can be applied fairly to children is also unconvincing. As the Joint Committee highlight, children cannot be said to have made a choice to make the UK their home, nor are they able to make a contribution in the form of tax to the civil legal aid coffers from which they may wish to draw. The Committee dismisses the Government’s claim that there are varying degrees of vulnerability and asserts that all children are ‘potentially vulnerable’.
The proposals must be reviewed and as recommended by the Joint Committee, all children excluded from the requirement of the residence test. If austerity is to be successful cuts must be made to excess, not to services and for individuals who require help in order to access justice. Justice without the properly funded parts cannot operate, and a justice system which deprives children of representation because they have not made a prior contribution, is no justice at all.