Research finds that LASPO ‘stacks the odds’ against unaccompanied and separated migrant children and young people

‘Cut Off from Justice: the impact of excluding separated migrant children from legal aid’ examines the ways in which the Legal Aid, Sentencing and Punishment of Offenders Act (2012) (LASPO) influences the lives and circumstances of separated and unaccompanied children. The research, funded by the Paul Hamlyn Foundation, was conducted Dr Helen Connolly at the University of Bedfordshire and commissioned by The Children’s Society.

The report focuses on one group of children – unaccompanied and separated migrant children:

“Whilst the term ‘unaccompanied and separated migrant children’ implies a very diverse group of children and circumstances, this report has shown that many of these children have ‘super vulnerabilities’ that are not accounted for in their exclusion from legal aid support. It has shown that trafficked children, children in private foster care, children in the UK on international adoption arrangements, children with experiences of forced migration, domestic violence, stateless children, and those with many other exceptional circumstances, are being placed at risk by a justice system that does not consider their circumstances serious enough to warrant legal aid support.”

Many of these children have ‘super vulnerabilities’ that are not accounted for in their exclusion from legal aid support.

Concerns about the vulnerabilities of these children and young people have been expressed by a number of bodies. The report notes that an impact review of the legal aid changes on children undertaken on behalf of the Office of the Children’s Commissioner highlighted that as a result of cuts to legal aid migrant children are now:

a) at a heightened risk of having to support and represent themselves through legal processes and procedures;

b) more likely to receive an unfavourable legal outcome;

c) less likely than other children to be able to fund private legal advice; and

d) at an increased risk of exploitation through the need to fund legal services.

The author also notes that the House of Commons Justice Committee ‘asserted particular concern in relation to the consequences for separated and trafficked children, recommending that “The Ministry of Justice review the impact on children’s rights of the legal aid changes and consider how to ensure separated and trafficked children in particular are able to access legal assistance.”’

The research had the following three aims:

1. To increase knowledge and understanding of the nature of the changes to legal services for unaccompanied and separated migrant children since the implementation of LASPO (2012), the scale of the Act, and the profile of children at risk of being left vulnerable to a lack of access to justice.
2. To identify the main issues arising from these changes, including how they have affected immigration related processes, procedures and practices, the indirect consequences of the changes, and the impact they have had on children’s rights under the United Nations Convention on the Rights of the Child (UNCRC, 1989).
3. To consolidate multiple perspectives on the legal aid changes, drawing from the first-hand experiences of children and young people themselves, local authorities, advocates and legal practitioners.

The research process involved:

• A desk-based review of the context, scale and impact of the changes on unaccompanied and separated migrant children.
• Locating the legal aid changes within the broader framework of the international standards and obligations of the United Nations Convention on the Rights of the Child (1989).
• Issuing Freedom of Information Requests to various public authorities as a means of getting baseline figures on the scale of the impact on unaccompanied and separated migrant children.
• Undertaking a survey with practitioners as a way of establishing baseline data about the frequency and circumstances of unaccompanied and separated children out of scope.
• Interviewing professionals across a range of legal, care and advocacy settings, concentrating on their experiences and perceptions of the ways in which the legal aid changes are directly and directly affecting the lives of unaccompanied and separated migrant children.
• Having conversations with separated and unaccompanied migrant children directly caught up in the changes about their first hand experiences of immigration processes and procedures and their hopes for others in the future.

Among the findings are that ‘complex legal immigration needs often go hand-in-hand with the super-vulnerabilities of these children. Such complex legal needs have been well demonstrated throughout this report as very powerful counterpoints to the Ministry of Justice’s assumptions that the majority of immigration applications are ‘straightforward’.’

Complex legal immigration needs often go hand-in-hand with the super-vulnerabilities of these children. Such complex legal needs have been well demonstrated throughout this report as very powerful counterpoints to the Ministry of Justice’s assumptions that the majority of immigration applications are ‘straightforward’.

In particular, the report draws attention to the complications and errors that are made in diagnosing children’s immigration needs, particularly where establishing trafficking is concerned.

The expectation that, in light of the changes brought about by LASPO, the voluntary and pro bono sectors and local authorities would ‘mind the gaps’ has also proved to be more difficult than anticipated. Many children were found to be physically ‘out of the orbit’ of children’s services or when known to them, their immigration were undiscovered or avoided. In addition, only a few local authorities were found to be proactive in addressing the changes and their associated responsibilities.

Local authorities ‘are bewildered by this new policy landscape and profoundly concerned about the ways in which this turns their duties as a corporate parent have been turned upside down.’ The research found local authorities making decisions around legal support that they are unqualified to make and ‘contorted into taking responsibility for an area of children’s lives that has never been expressly established in any policy or safeguarding guidance, and that sees them taking on uncertain costs transferred from the Ministry of Justice. Alarm bells have also been raised that it is perhaps children with the most complex cases and heightened legal needs that are most impacted by local authorities making unqualified legal judgements.’

The research reveals that ‘in between the gaps left by the legal aid changes, the role of luck was crucial in establishing who did and did not find legal support for their immigration claims. A system that relies on luck is inherently discriminatory and as such, undermines the Government’s commitment to the UNCRC. In particular, it undermines Article 2 and children’s right to non-discrimination in administrative processes.’

A system that relies on luck is inherently discriminatory and as such, undermines the Government’s commitment to the UNCRC. In particular, it undermines Article 2 and children’s right to non-discrimination in administrative processes.

The report makes a number of recommendations, including several calling for further research:

• The Government should reinstate legal aid for all unaccompanied and separated migrant children in matters of immigration by bringing it back within ‘scope’ under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or should formalise the role of local authorities and their role in relation to legal aid for separated children given the ambiguity that has been created around whether or not a local authority is under any obligation to provide legal services to a separated or unaccompanied child that it is either ‘looking after’ or ‘assisting.’
• The Government should undertake an evidence-led review of the exceptional funding scheme to examine how it is or is not working for the legal needs of unaccompanied and separated migrant children.
• All children suspected of being trafficked, whether they have been referred into the National Referral Mechanism or not, should have access to legal aid either by being brought within ‘scope’ under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or by clear exceptional funding guidance.
• Until legal aid is reinstated, local authorities should develop written policies that offer clarity on the nature and scope of their responsibilities in relation to legal aid for separated children, and they should train social workers and independent reviewing officers in the identification of children that are out of scope and how to best support their legal needs within this new and complex territory.
• Local authorities should ensure the systematic collection of data for separated children with non-asylum immigration claims.
• Outreach work should be undertaken in schools and colleges to inform children and young people about immigration and the law, routes to regularisation and their importance.
• The Government should commission external independent research into the existing capacity and level of ‘specialism’ in children’s immigration law cases.

Dr Helen Connolly, Ilona Pinter, ‘Cut Off from Justice: The impact of excluding separated migrant children from legal aid’, July 2015, The Children’s Society, available at: http://www.childrenssociety.org.uk