Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I have put my name to Amendment 46, which would maintain legal aid for all children. I thank the other noble Lords on all sides of the House for putting their names to this amendment. I have also put my name to Amendment 21, along with the noble Baroness, Lady Howe, who has spoken eloquently and passionately, as always. To illustrate the reasons why I have put my name to these amendments, I shall give three stories, which are supported by the Children's Society, that were told by young people about their experiences of attending court. They are about migrant children who had to go through immigration cases. "““I felt very scared, terrified in fact. It was such an official atmosphere, and I felt small and vulnerable. You know that decisions that affect the rest of your life are made in this one morning, and I just felt so scared knowing that””.""““I had a solicitor and she had explained what was going to happen before we went, but even that could not have really prepared me. I was lucky because I had a solicitor. I had a barrister at court who was able to argue for me. Without him I don't know how I would have coped””.""““The Home Office person made me feel scared and the whole time kept on saying I was lying and that I should return home; this made me feel upset and angry as I knew that I was telling the truth. My barrister was great though and kept on arguing back about my case””." This convinces me that a different approach is needed when it comes to children because children are fundamentally different from adults. They generally have a lesser capacity to make complex decisions that will affect their future and will not always be able to understand the full consequences of their decisions and actions. Equally they do not have the capacity to represent themselves effectively in legal proceedings or to engage in detailed evidence gathering to support their case. The Children's Commissioner for England, Dr Maggie Atkinson, has said: "““Children, by virtue of their age and capacity, will not be able to present their case effectively in the majority of proceedings. Failure to afford children effective access to justice in cases engaging their civil rights and obligations will be in violation of Article 6 ECHR. It will also—even in immigration cases that do not benefit from the protections of Article 6—prevent them from being afforded their substantive rights and an effective domestic remedy for breaches of those rights””." The Government have recognised that children need special consideration. As my noble friend Lord McNally said in response to a Question on legal aid: "““As far as possible, our intention is that, where children are involved, legal aid will still be provided””.—[Official Report, 7/7/11; col. 343.]" However, in reality the Bill will remove legal aid from 6,000 civil justice cases in children's names each year, compared with provision in 2009-10. In a letter to the Times, the top six UK children's charities pleaded with the Government not to abandon these 6,000 children, who will have no other choice but to represent themselves in court, with no one to protect them and manoeuvre them through the legal system. The Government have not explained why legal aid is being kept for 35,000 children a year but is being withdrawn from the equivalent of 6,000 children a year. While there is provision in the Bill for, "““Children who are parties to family proceedings””," and cases involving the, "““Unlawful removal of children from the United Kingdom””," by their parents and, most recently, for some clinical negligence cases, legal aid is not to be provided if they are party to legal proceedings generally: for example, in immigration, welfare, housing, education and the majority of clinical negligence cases. Surely in our society it is unacceptable that a child involved in legal proceedings, who will have no financial resources to pay for their legal advice and representation, will be expected to present their own case in an adult legal system as a litigant in person—something many adults would struggle to do effectively. It is also worth highlighting that legal aid is already restricted to those who cannot pay for legal assistance by any other means and therefore provides a safety net to ensure protection and equality for the vulnerable and disadvantaged. Ending legal aid for whole areas of law will affect the poorest and most vulnerable and marginalised families. Many children are likely to suffer as a knock-on effect of limited access to justice for their parents and carers. This will be particularly important in areas such as housing, welfare, immigration and debt, where children are affected by their parents' lack of financial resources and ability to navigate the legal system, which may be hindered by a number of factors, such as parental disability, language barriers, poverty and mental health issues. The Justice Minister has stated that there will be a safety net in the form of the exceptional funding scheme. This would come into play; if not, giving legal aid would breach individual rights under the Human Rights Act 1998 or European Union law. However, the Government have not published details of the full scope of the new scheme or how it will function. I would be grateful if the Minister could enlighten us as to how this will work, to put our minds at rest. The impact assessment states that the Government anticipate that only 5 per cent of excluded cases for education will gain exceptional funding, and no cases for immigration will. The Children's Society has estimated that just over 4,000 cases involving under-18s will be excluded from scope and will not receive exceptional funding. If the Government intend to process significant numbers of cases through the exceptional funding route, new arrangements are urgently needed to ensure that this does not result in a slower or more costly process or, worse still, that these cases will simply not receive legal aid funding. This would be detrimental to children and young people. The Minister stated very strongly that in civil cases claims brought in the name of a child are usually conducted by their parents acting as the child's litigation friend rather than by the child themselves. He said: "““The civil justice system as a whole does not generally require children to act on their own behalf””.—[Official Report, 16/1/12; col. 447.]" However, here are some very clear illustrations of how that is not always the case. For example, a young person—let us call her B—was sent to the UK when she was 12 years old to stay with her uncle. Almost as soon as she had arrived, the uncle sexually abused her, which continued until she ran away from home when she was still a teenager. During this time she attended school and achieved good GCSE results. After running away, she reported her uncle to the police and he was arrested. He was convicted on several counts of rape and sentenced to five years. B realised that she had no immigration status only when she tried to apply to university to study a course in social work. She approached several lawyers for advice and some offered to take on her case but she could not afford the thousands of pounds in fees. Eventually, she found a legal aid representative who helped her to prepare an application for leave to remain on the basis of Article 8—the right to a private and family life. The UK Border Agency granted her discretionary leave to remain. The young woman now works for a charity and mentors young people in difficulty. A representative described her as a very determined and inspirational young woman who has applied to do an access course that will enable her to go to university next year where she intends to study to become a social worker. What a happy ending. In another case, child G came to the UK with his mother when he was 12 years old. His mother abandoned him and, eventually, after a year, he came into contact with social services and, later, the Children's Society. During that year he was homeless and forced into child labour. The Children's Society referred him to a solicitor who found that he had no grounds for asylum and lodged a human rights application for leave to remain. Within a year, he was granted indefinite leave to remain. His solicitor believes that G's exceptional circumstances mean that it is in his best interest to apply for naturalisation and has applied for legal aid funding to do this. Under the provisions he would not qualify for legal aid. These stories illustrate the risk of harm to which separated or unaccompanied migrant children are all too often exposed. Although asylum cases will be covered, other immigration matters involving children seeking protection will not. Legal aid cuts are likely to affect 2,500 children in the same situation as B. They will no longer have legal aid to resolve their immigration issues to remain in the UK or to prevent them from being forcibly removed. These cases are likely to involve victims of trafficking, abuse and exploitation. Many may be made further vulnerable to exploitation. Many children come to the UK at a young age—often due to the illness or death of a parent—and spend their formative years here. Many do not realise until they are older that they have an uncertain immigration status and that vital protection is provided under human rights law. That can ensure that these vulnerable young people are not forced to leave their home in the UK to return to a country that they do not know and where they may have no family or support network left. However, there is more. There will be knock-on costs if children cannot sort out their legal problems fairly. Society and the taxpayer will suffer unpredictable costs that could have been avoided. A 2011 study by Youth Access, The Outcomes and Impact Of Youth Advice—the Evidence, found evidence of higher costs for the NHS, the criminal justice system, the welfare system and local authorities. The Local Government Association is particularly concerned about additional costs related to care leavers and former unaccompanied minors. The Department for Communities and Local Government has announced that any higher costs to local authorities arising from cuts to legal aid will be charged back to the Ministry of Justice. That was taken from a Written Answer made by the noble Baroness, Lady Hanham, on 1 November 2011. I hope that my noble friend Lady Eaton, when she speaks, will give more details on the costs to the country. Surely it is good governance and common sense to put legal aid in place in order to prevent unnecessary spending, because the financial cost and damaging social consequences for children will far outweigh any short-term savings. The increase in the number of litigants in person will put pressure on an already overstretched court system. The removal of legal aid from many family cases will have the effect of removing access to justice for many people. The exception in the proposals—