Revelations of a society’s soul: LASPO 2012 and the voiceless children

Posted on 10 Oct 2017 by Chloe Mackinnon

Disclaimer: The views expressed below are that of the individual author.

When the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was introduced, it severely impacted the provision of legal aid for immigration cases. In fact, it abolished it in almost all instances. This has had huge implications for the application of the UN Convention on the Rights of the Child (UNCRC). One group particularly affected is unaccompanied migrant children, alone in what is a foreign country to them and separated from their parents. In this article I want to provide a snapshot of the rights issued faced by a group of children fundamentally denied a voice, and whose realisation of their rights under the UNCRC is continuously undermined.

“There is no keener revelation of a society’s soul than the way in which it treats its children.”

– Nelson Mandela

The UNCRC

The UK is a party to the UN Convention on the Rights of the Child, although it is not directly incorporated into domestic law. Prior to November 2008, the UK held a reservation to the Convention that meant it did not apply to decisions regarding children’s immigration issues. This has now been removed. In 2010 the Government recommitted itself to the Convention. It is used by the courts and the Government to guide policy, law and decision making, and is regarded as the most prominent instrument with regard to children’s rights. However, as this article will demonstrate, the Government’s treatment of unaccompanied migrant children is indicative of a failure to properly engage with this crucial international document.

Who are ‘unaccompanied migrant children’ and how many are there in the UK?

The situations of unaccompanied migrant children vary greatly. Some exist within the care system and others reside with extended family. Their backgrounds are diverse and so it is hard to quantify just how many children fall into this group. The Children’s Society identifies these children as coming from trafficking, broken families, exclusion from family immigration claims, statelessness, or as having a mixed asylum and non-asylum claim, an unresolved or problematic status, or having been misdiagnosed by a legal advisor as ineligible for legal aid. The Children’s Society has estimated there are somewhere between 13,500 and 16,500 unaccompanied migrant children in the UK. However, this is only an estimate and in reality there could be many more unaccounted for.

Access to specialist legal advice

The immigration claims of these children can vary greatly, yet due to the complex and fast evolving nature of UK immigration law they all required specialist legal advice. Unfortunately there are only ten immigration lawyers specialising in children’s claims and so even without factoring in LASPO the supply of legal advice does not meet the demand. According to The Children’s Society, it is rare to find lawyers capable of working well with children and providing high quality legal advice. Therefore, this is not an area of law in which migrant children, particularly vulnerable because they are separated from their family and home country, can easily represent themselves as litigants in person. Many children may have a brilliant support network from the local authorities or their extended family who are be able to help them somewhat with forms and any potential language barriers. However, this is simply not enough. The Government often cite this support network as a sufficient replacement for the absence of legal funding, but the reality is that these children need someone who understands the intricacies of the system in order to present their case in the best possible light.

Article 12 UNCRC

Without legal funding it is hard to envisage how the rights of these children can effectively be realised. Article 12 provides that “the child who is capable of forming his or her own views [has] the right to express those views freely in all matters affecting the child … the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body.” The Government may argue that there is no violation of this right since a child could represent themselves in proceedings as a litigant in person. However, it is hard to argue on that basis that the child’s views would be properly represented. Children may not even be aware that they have this right, let alone understand how to properly communicate their views in an intimidating tribunal.

Article 3 UNCRC

This leads on to Article 3 of the Convention, which provides that “In all actions concerning children … the best interests of the child shall be a primary consideration.” If an unaccompanied migrant child does cannot receive representation from a high quality lawyer, their best interests cannot be properly represented and upheld. Children themselves may not be aware of what their best interests are. While the Home Office has a statutory duty to “[have] regard to the need to safeguard and promote the welfare of children who are in the United Kingdom” it is apparent that this plays only a minor role in the consideration of children’s immigration applications. The abolition of legal aid for these unaccompanied children who also displays a failure of the UK to take into account Article 3 when considering the reforms, as it certainly cannot be in the best interests of any child to be denied the access to justice.

A guardianship system?

One suggested option is a guardianship system, in which a guardian would personally oversee a child’s case and would understand their views and best interests. There is debate over whether the role should be a legal one or one without formal powers, the former being capable of being subject to statutory regulation. A guardianship system of the latter was trialled in Scotland from 2010 to 2013 for unaccompanied children seeking asylum and children who had been trafficked. It was reported to have been very effective in enhancing collaboration between authorities and providing continuity for the child, thereby creating a suitable mechanism for upholding their rights under the UNCRC. It was so effective that it has been funded for a further three years. It appears that this could have positive effects if applied within England and Wales as well. However, it does raise the question if such a system would really combat the negative implications of the LASPO cuts. From what we have seen, it would likely to depend on the guardian’s knowledge of the complex immigration system and the quality of advice they could provide.

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For unaccompanied migrant children who have found themselves in the UK, they not only have to contend with a severe lack of legal funding for their immigration claims, but also the abuse of their rights under the UN Convention on the Rights of the Child. The denial of legal aid leads to the denial of access to justice, a fundamental right that should be afforded to every citizen, regardless of age or background. For these children the crux really is having access to a high quality lawyer who knows how to represent their best interests and navigate the complex route to stability of status. For now it remains unclear if the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will be reformed for the better. However, it seems unlikely considering the Government’s fundamental uncommitment to the UNCRC.

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