Vulnerable Children will lose access to justice with cuts to legal aid

If you believe in access to justice, please join the campaign and take action now. For more information on what you can do, go to: Save Legal AidJustice For All and Sound Off for Justice.

On 13th December, the rights of children were centre stage at a meeting of the All Party Parliamentary Group on Legal Aid in Westminster. Speakers including Baroness King and the Children’s Commissioner for England, Dr Atkinson, discussed how children and young people will be affected by Government plans to cut free legal advice and representation. This debate was perfectly timed as the bill setting out the cuts should enter the Lords committee stage on 20th December. If it becomes law, children will lose out on a massive scale: 6,000 children under 18 would go without legal advice and representation, and 140,000 children would be affected because their parents could not get legal aid support. 2,500 children will lose direct legal assistance each year for immigration cases.

The Government wants to remove legal aid for most immigration work. It will stay for cases of asylum and torture, most asylum support, domestic violence and detention, but the Government thinks other issues are not important enough to justify funds. It also believes people who will be excluded can cope without legal advice, which makes me wonder if it has read any of the case studies filling its post box over the past year. How do I tell the refugee desperate to be reunited with her child that this lacks “fundamental importance”? Can the trafficking victim struggling with the after effects of abuse put her case for a residence permit? Does the family whose kids were UK born and bred know what evidence they need for a claim to succeed? All these applicants are up against the state, so there will be no equality of arms when their opponent can fund its own advice, write its own rules and jump any barrier like language or health. For children, the problems are magnified ten fold, although the bill is virtually silent on provisions specific to their needs. Enver Solomon from the Children’s Society said this at the meeting:

“It is difficult not to conclude that these reforms are driven by a simple desire to save money and do not take into account the best interests of children. It is particularly shocking that there has been no desire to differentiate between children and adults… It is difficult to see how the legal aid reforms are in any way UNCRC compliant.”

You can see the failure to think things through when it comes to detention. Keeping legal aid for challenges here is essential, but like the rest of the “sticking plaster” philosophy of the bill, lets lawyers step in only at crisis point for many people. If you have a claim to remain and challenge removal, then advice in good time to progress a case could avoid detention completely. Until the Government shows it is committed to ending child detention, we cannot ignore the need for children and their families to access advice before they lose their liberty, no matter what type of immigration issue their case may involve. Even a few days of detention can leave a long term mark on a child. If they are detained, it will be even harder to argue for release with no ongoing claim to hold up removal or give an incentive not to abscond.

But as the Government continues to slash and burn legal services, there is less chance you will find a lawyer to help you challenge detention, let alone one who is any good. End Child Detention Now (ECDN) reported how they had to phone 31 different advisers to get help for a family detained with a 2 year old child as far back as 2009. Nowadays legal aid advice for clients in detention can only be provided if you have a special contract, but the number of advisers with the right skills for this work will be radically reduced if the cuts come in. We have lost national providers like Refugee and Migrant Justice and the Immigration Advisory Service and seen the spread of “advice deserts” all over the country as providers struggle to survive under the current funding regime. Migrant Rights Network explained that evenLondon is feeling the squeeze:

“There is already a lack of good quality immigration solicitors for MRCOs [Migrant and Refugee Community Organisations] to refer their clients; a further reduction will make it harder for MRCOs to refer their clients for higher level advice”

If this bill goes ahead, things will get worse. It is estimated that up to 50% of law firms will fold and one third of law centres are likely to close, as they face cuts from local government and grant funding as well. This sort of void cannot be filled by charities such as the Refugee Council, which is struggling after a loss of £6 million in government funding. And pro bono help is not the answer. Not only do immigration advisers need accreditation, pro bono work can only scratch the surface of unmet legal need. This is certainly the view of the Civil Justice Council, which said:

“Pro bono legal services cannot begin to meet the scale of shortfall in provision that will be left by the proposed reductions and changes in legal aid. For all its development over the last decade, pro bono work exists only as an adjunct to legal aid and privately-paid legal services. It can never replace legal aid.”

Vulnerable people need quality help from beginning to end, not just a last minute fix. Research by Bail for Immigration Detainees (BiD) on children in detention found many were detained despite barriers to removal and errors by the Home Office in considering their cases. They recommended that families have access to good quality, publicly funded advice at an early stage, and these concerns were echoed by the Refugee Children’s Consortium, writing as the new family detention centre opened in Crawley in September. The Early Legal Advice Project for asylum cases lets applicants see lawyers at an early stage and is exactly the sort of service that all migrants should have access to. Supreme Court judge Lady Hale spoke of its significance for children:

This is designed to improve the quality of the initial decision, because the legal representative can assist the “caseowner” in establishing all the facts of the claim before a decision is made. Thus cases including those involving children will be offered an appointment with a legal representative, who has had time to collect evidence before the interview. The Secretary of State tells us that the pilot is limited to asylum claims and does not apply to pure article 8 claims. However, the two will often go hand in hand. The point, however, is that it is one way of enabling the right questions to be asked and answered at the right time.”

In a world where we no longer care about what is right, the losers are obviously the clients, but it is also the state. There will be more work for Tribunals when they have to guide people who are self-represented, taking more money and time. This is on top of other social costs that come when problems are left unsolved, and lives slide out of control. Quakers have decided to object to unfair Government cuts, and the Meeting for Sufferings emphasised a wiser use of public money, so cuts would not be at the expense of the poor. If legal aid was retained for all under 18 year olds (across all areas of law), this would cost £10 million, and £40 million to protect advice for 18-24 year olds. As JustRights and Sound off for Justice have said:

 “These costs are dwarfed by the costs of not taking action: £10 million is equivalent to the cost of imprisoning just 71 young offenders.  £40 million is less than half the weekly cost of youth unemployment.”

In July, the Minister for Justice Lord McNally said, “As far as possible, our intention is that, where children are involved, legal aid will still be provided.” We must make sure the Government keeps its word. The Children’s Society has asked for an amendment so all children under 18 receive civil legal aid, while the Refugee Children’s Consortium asked that all children and vulnerable young people including victims of trafficking and exploitation can access legal aid in immigration claims. Peers have tabled amendments to protect child dependents, the Immigration Law Practitioners’ Association proposed an amendment on legal aid for refugee family reunion, and Just Rights want amendments to protect care leavers and young people with disabilities. Hopefully something will stick, as legal aid is a lifeline we need to support.

If you believe in access to justice, please join the campaign and take action now. For more information on what you can do, go to: Save Legal Aid, Justice For All and Sound Off for Justice.

Carita Thomas is a member of Young Legal Aid Lawyers.

Peers have tabled amendments to protect child dependents. The Immigration Law Practitioners’ Association proposed an amendment on keeping legal aid for refugee family reunion and people liable to detention (among others),

See also:

The asylum seekers facing a Kafkaesque legal nightmare | UK news   www.guardian.co.uk/uk/2011/aug/04/asylum-seekers  4 Aug 2011 – Government cuts to legal aid for asylum seekers have left many without expert advice or access to their own case files.