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Government responds to the JCHR’s report on children and the legal aid residence test

Coram Children’s Legal Centre is 'staggered' by response

Coram Children's Legal Centre has expressed disappointment at the Government's response to the report by the Joint Committee on Human Rights, Legal aid: children and the residence test, published on 25 June 2014. CCLC has consistently raised serious concerns about the proposed policy since it was first raised in April 2013. CCLC gave written and oral evidence to the JCHR on the impact that imposing a residence test for legal aid would have on children's ability to realise their rights.

The Government considers that the potential effect of the residence test is accommodated by the proposed exceptions to the residence test, flexibility in evidential requirements and the availability of exceptional funding.

It says that it does not agree with the Committee's conclusion that "children will rarely be capable of representing themselves in legal proceedings in which their best interests are at stake, as they may be unable to access a litigation friend".

The response says:

"Where any individual was unable to access civil legal aid as a result of the residence test, they would be entitled to apply for exceptional funding. Therefore legal aid would continue to be provided where failure to do so would breach the applicant's rights to legal aid under the ECHR or EU law.

"In addition, there are a number of bodies that can practically assist unrepresented children, including voluntary sector support, support provided by law centres, and the possibility that a local authority may (at least in more complex cases) consider whether it is in the best interests of the child to obtain private legal advice."

In R (the Public Law Project) v Sec State for Justice [2014 EWHC 2365 (Admin), the High Court held on the 15th July 2014 that the Government does not have the power in law to introduce a residence test for civil legal aid because such a test goes beyond the original purpose of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, under which the test was to be brought in. The discrimination that would be introduced by the test was held to be unjustifiable.

Coram is concerned that, rather than abandoning this policy – which, it says, even a group of the Government's own senior lawyers has described as 'unconscionable' – the Government is continuing to fight the judgment. In the response the Government confirms that it is appealing against the judgment.

The Government, in its response, states that 'the best interests of the child have been a primary consideration in the development of the residence test'. Coram says that there is no evidence for this claim.

Noel Arnold, Director of Practice at CCLC, said:

"We find it staggering that, even following the High Court's July ruling against the residence test, the Government continues to defend this policy as being lawful and compatible with children's rights. This is a policy that would leave children unable to enforce the protections that the law provides them when they are mistreated or failed by the system. It would render legal protections meaningless in some children's lives.

'We hold out the hope that the Government will reconsider its position and rethink what a commitment to children's rights must mean in practice."

The report by the JCHR is here. The Government's response is here.