The legal aid residence test on children will lead to breaches of the United Nations Convention on the Rights of the Child, a high-profile cross-party committee has warned.
A report published today by the Joint Committee on Human Rights calls on the government to withdraw the test ‘immediately’, claiming it will prevent children from being effectively represented in legal proceedings affecting them.
The committee said the test will have an adverse impact on four categories: unaccompanied children, undocumented children; children with special educational needs or disabilities, and section 17 and 20 Children Act 1989 cases.
The proposal will mean that only those living lawfully in the UK and who have done so for at least a year will be eligible for non-criminal legal aid.
The committee regrets the government’s decision to implement the change by means of an affirmative statutory instrument, rather than primary legislation, removing parliament's ability to scrutinise the provisions.
It states that the government’s justification for its residence test – to ensure that only individuals with a strong connection to the UK can claim civil legal aid – cannot be applied fairly to children.
The committee concludes 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 affecting the child, as required by Article 12 of the UNCRC, or to ensure that the child’s best interests are a primary consideration in such proceedings, as required by Article 3.
Committee chair Hywel Francis MP (pictured) 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.’