The Government proposes to implement a Residence Test for people applying for Civil Legal Aid (ie not criminal legal aid). The Residence Test will limit legal aid to those with a “strong connection” with the UK.
The Human Rights Joint Committee has prepared a Report particularly focusing upon the likely effect of the new test upon children.
The Report concludes that it is not fair to apply the “strong connection” test to children. It goes on to conclude that if the Residence Test applies to children it cannot see any way to ensure that the views of children are heard in any judicial or administrative proceedings which affect the child. This is in breach of Article 12 of UNCRC (The United Nations Convention On the Rights of the Child).
The Report particularly considers the potential impact of the Test on 4 categories of children in particular:
- Children with special educational needs or disabilities;
- Undocumented children which would include, for example, children who have fled the family home as a result of domestic abuse or children who, for whatever reason, are at risk of being made homeless. They point out that a study recently indicated that there were 120,000.00 undocumented children living in the UK of whom 65,000.00 were born to undocumented migrant parents;
- Unaccompanied migrant children and young people;
- Children who should be protected by Section 17 and Section 20 of the Children Act 1989. These are children in need which is defined as children who are unlikely to achieve or maintain or have the opportunity to achieve or maintain a reasonable standard of living or development without provision of services from the Local Authority or children whose health or development is likely to be significantly impaired or further impaired without the provision of services from the Local Authority. Section 20 refers to the Local Authority’s duty to accommodate children in need in their area.
The Chair of the Committee Dr Hywel Francis MP said: “As long as children have a legal right to take part in proceedings which affect their interests, it is wrong – indeed unlawful – to make it more difficult for a particular group of children to exercise that right. We do not feel that the Government has supplied enough evidence to justify why children should not be excluded altogether from the Residence Test, and we feel that it has not given enough thought to some of the practical obstacles which children will face. Given the critical conclusions reached by 2 other Parliamentary Committee’s about this instrument I think the Government should withdraw it immediately”.
These are powerful words and it remains to be seen whether or not the Government listens and acts upon them. Would anyone seriously disagree that children should always be afforded access to legal advice and the support they need when in this Country just because they cannot produce paperwork to show that they have been resident here for a particular period?
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