SUBMISSION BY CHILDREN'S LAW CENTRE ON LEGAL AID REFORM

The Children's Law Centre is an independent charity which was established in September 1997 and helps children, their parents/carers and professionals work with and understand the law relating to children and young people. It is a specialist centre, which deals only with the law, as it relates to children and young people. We have a Northern Ireland wide remit.

There are currently four full time members of staff employed at the Centre and one part time member. The staff is comprised of the Director, Solicitor, Youth Rights Worker, Researcher and part time administrator.

The organisation is founded on the principles of The United Nations Convention On The Rights Of the Child, in particular

Article 2 Children shall not be discriminated against and shall have equal access to protection.

Article 3 All decisions taken which affect a child's life should be taken in their best interests.

Article 12 Children have the right to have their voices heard in all matters concerning them.

The services we provide are an advice and referral service on the law relating to children and young people, a casework service limited to our key strategic areas, a training and information service on domestic and international children's law and policy work/proofing of legislation from a children's rights perspective. The Children's Law Centre has applied for a waiver from the Law Society of N Ireland to enable legal aid to be applied for and representation in defined strategic areas to take place and we believe this to be essential to providing a holistic service for children. The concept of waiver is dealt with at a later stage in our submission.

The Children's Law Centre aims to make the legal process more accessible to the particular needs of children and young people. It is our belief that by working on a multi disciplinary basis and sharing information about the law relating to children and young people with the legal, statutory and voluntary sectors in N. Ireland that this will increase young people's access to the law in this jurisdiction. Also, due to the structure of our organisation in which we have a children and young people's group we are in a position to make our own legal services more accessible and directly influenced by the young people themselves.

Accessibility means that firstly children and young people have an awareness about their legal rights and about the laws affecting them but secondly and importantly they need to know how to access the complex legal system that we have. The Children's Law Centre in our own key areas is N Ireland wide and has sought to create an environment both in terms of the structure of our organisation and the actual premises where children and young people can feel comfortable in seeking advice in the first place. We have also received funding to establish a freephone advice line for children and young people and believe that this will be very effective in opening up access to the legal system. The freephone advice line however is not intended to stand on its own but would be very much linked into advice, assistance and representation should the case fall within our defined areas. It is also important that after having developed a relationship with their solicitor that young people are not passed from pillar to post and this is a point, which we will refer to, in specific response to the proposals contained in the paper.

As stated we aim to provide a complementary service to that provided by private practice. In terms of access to private practice solicitors children and young people particularly in the more rural areas of N Ireland should be able to access legal advice easily and not have to travel to cities or towns in search of a solicitor who has the appropriate type of legal aid contract. Whilst we agree that quality control systems including very specialised training about actually taking instructions from a child for all those representing children and young people are essential, we have reservations about contract arrangements which would restrict rather than increase provision by local solicitors. The law relating to children and young people is a growing area and will continue to be as awareness about children's rights is increased and The Children's Law Centre aims to highlight through a training programme the effective types of legal challenges, which can be made.

The key areas in which we work are children in care, children in the justice system, education, discrimination against children and the provision of services to children .The work we is complementary to the work carried out by private practice solicitors in N Ireland. These are all areas of law which concern the most vulnerable children in our society.

The Children's Law Centre has serious constitutional reservations about Government defining areas of priority in terms of who is deemed worthy of accessing the legal system through legal aid. If such prioritising is to take place surely this should be carried out by an independent body at the outset.

In the event that prioritising is introduced The Children's Law Centre submits that any plans for legal aid reform should prioritise the law relating to children and young people and that affordable, accessible legal services for children and young people involved with any aspect of the law must be one of the key factors in determining any new legal aid structures. We agree with your statement on page 25 that legal aid is a service for our needy, poor and vulnerable to redress important social welfare problems. Children make up a third of our population and recent statistics have shown that 37% of our children in N. Ireland live in poverty. Children who are marginalised due to family/care circumstances, involvement with our juvenile justice system, who are being discriminated against in terms of their ethnic origins, race, religion, disability or who are being denied their right to education and services must surely merit special inclusion within the definition of vulnerable and needy.

It is also important that international standards are upheld such as The European Convention On Human Rights, Article 6 which provides that everyone is entitled in determination of his civil or criminal rights to a fair and public hearing and is also entitled to defend himself when charged with a criminal offence through legal assistance of his/her own or if s/he does not have the means to pay for the assistance to be given it free.

The United Nations Convention On The Rights Of the Child also provides at Article 12 that State Parties must assure to a child (child being defined as someone under 18) who is capable of forming his or her own views the right to express those views in all matters affecting the child and that for this purpose the child in particular should be provided with the opportunity to be heard in any judicial or administrative proceedings affecting them either directly or through a representative or appropriate body.

These international standards set the context for the comments, which follow on the consultation document. The main concerns which underpin our arguments are that the government must place children and young people's access to the law centrally on their agenda for any reform to the legal aid system and that in order to do this a more detailed look at the present legal aid provision for children and young people is required. The consultation document as it stands does not recognise the special position of children within our legal system. The law relating to children cannot be compartmentalised into family and non family issues and it must be recognised that children's legal issues cut across the divide of family, care, education, justice and discrimination.

The review would benefit from an analysis of the present legal aid availability for children and young people in terms of enforcing their legal rights with particular regard being paid to the equality provisions in The Northern Ireland Act which apply to all public authorities and which make it illegal to discriminate on grounds of age (young as well as old) in terms of how services are funded and provided.

As a very broad analysis, at present young people in N Ireland 16 and over can sign a Green Form in their own right and the normal financial eligibility criteria apply. For a child under 16 the entitlement to Green Form Legal Aid is assessed on parent's income. Thus for initial advice a child may be excluded on grounds of their parents income from receiving free legal aid but yet would qualify for free legal aid under full civil aid . This is anomolous and could lead to situations where a child is unable to access the legal system at the outset.

In relation to he ABWOR scheme there are certain cases under the APP7 scheme which are non means tested and non merit tested for children under 16 such as representation in secure accommodation order cases, care/supervision cases, child assessment applications, emergency protection orders and extension or discharge of care orders. Other applications are dealt with under the app7 scheme and these would be merit but not means tested.

In relation to full civil legal aid a child under 16 would be entitled to non-contributory legal aid in all cases subject to the merits test. A child of 16-18 would be assessed on its own income.

Criminal legal aid would generally be available to children under 18.

In terms of children accessing justice there is an argument for saying that legal aid for children and young people under 18 should not be subjected to a means test at all and also granting of legal aid to them should not be subject to an assessment of their parent's means.

Comments On Chapter 5 Prioritising Need

Subject to the constitutional reservations already expressed in terms of the division of power The Children's Law Centre recommends that if priority systems are introduced children's cases in family law, public law, adoption, criminal law, education law, discrimination law and judicial review in terms of wider public interest be given priority status. As we have stated children's cases cannot be compartmentalised and if categories of family, non family and criminal were to be used priority, to children's cases should be given under all these budgets.

In terms of assessing need a historical evaluation of expenditure on cases relating to children may not be beneficial as it is hoped that children's access to justice can be increased and that need can be met with legal services.

Comments On Chapter 6

The Children's Law Centre would have serious concern about capping budgets and the particular effect this could have on cases for children. We would suggest that a case on behalf of a child should never be declined on budgetary considerations only.

Children or their parents /solicitors acting on their behalf should never be in a position where they are exposed to the payment of the defendant's costs and should be excluded from any proposals in this regard.

It is proposed that diagnostic work, advice and assistance and representation should all attract non-contributory legal aid for children under 18.

An external representative from a children's non-governmental organisation with an expertise in the law relating to children and young people on the Administrative Body for reviews of decisions in children's cases would be welcomed.

Comments On Chapter 7

Firstly the division of contracts into diagnostic services, formal advice and assistance and full representation is not appropriate to the needs of children and young people who need continuity of representation and support.

Any contracting scheme for children's cases should allow for continuity. The needs of children and young people to be supported through what can be a very difficult process requires that there is one constant adviser who can lead the young person through the process. If services are divided the young person is very likely not to proceed to the next stage and to get confused about procedures. There is also the important issue of time limits in terms of the issue of proceedings and the no delay principle, which should be considered.

Secondly we agree that there should be auditing and monitoring schemes and quality standards developed. There should be funding and thorough training facilities made available to voluntary agencies who may wish to avail of the franchising scheme in advance of the implementation of any such scheme to assist with the implementation of mandatory requirements.

Comments On Chapter 8

Conditional Fee arrangements, which expose children and young people to the risk of costs against them are not an appropriate mechanism in terms of accessing the legal system. It is not reasonable to allow a child or young person to " share the risk of litigation between client and lawyer".

Comments On Chapter 10

It is agreed that clinical negligence cases involve a high degree of speciality and should be limited to solicitors who can show competence and experience.

Comments On Chapter 11

In relation to Para 11.2 and 11.3 it is important to note that in addition to The Law Centre The Children's Law Centre also employs a qualified solicitor.

The work, which is carried out by The Children's Law Centre, would be seen as complementary to the services provided by private practice. The Centre was established pursuant to research, which defined particular areas of need in relation to legal services provided for children and young people. The Report entitled Advocacy for Children And Young People In N Ireland was supported and funded by The Department Of Health & Social Services to progress the concept of children's advocacy. The recommendations were as follows:

         i.            A Children's Law Centre should be established which should adopt a children's rights perspective.

       ii.            Advocacy and self advocacy for children should be developed in terms of the provision of services.

      iii.            Advocacy for children with specific disabilities needed to be placed on the agenda of all relevant organizations.

     iv.            A range of pre advocacy services should be established which could provide children and young people with information about their rights.

       v.            There was a need to co ordinate advocacy services to ensure that young people's voices could be heard across a range of sectors.

     vi.            A need was identified for developing specific forms of advocacy for children and young people in care, leaving care, education and young people with specific disabilities.

We note the mention of a community legal network and would welcome further detail of how such a scheme would be developed in N. Ireland.

We note the Government's proposal to ring fence funding for the not for profit sector and would welcome such a proposal, but reiterate that there should be a holistic legal service provided for children and young people which enables advice to be given across the remit of all law which affects them and allows for advice, assistance and representation to be provided under the same arrangement.

We also note that the Government may extend the use of salaried solicitors in the not for profit sector. The ability to fund such posts again would be a welcome development but the Government should note the unique position in N Ireland in relation to solicitors practising in the not for profit sector who are required to make application under The Solicitor (NI) Order 1976 as amended for a waiver to enable applications for legal aid to be made and representation to take place in court. The provision reads as follows:

Any solicitor who shares any of his profits or fees with an unqualified person shall be guilty of an offence...

This provision does not apply however for the purposes of making legal aid and advice more readily available to persons in need, the Council having directed in writing that Paragraph 1 shall not apply in relation to a non profit making organisation specified in the criteria.

Chapter 12

Criminal Legal Aid

The Children's Law Centre recommends that legal aid in criminal cases should be available to all children under 18 and that children and young people under 18 should be excluded from the paragraph 2.1 provisions allowing judges to make and order for payment of defence costs. In light of requirements under The European Convention On Human Rights in relation to a fair trial which in our view could also be used in conjunction with other articles of the Convention eg Article 8, the right to family life, it is not appropriate to cap budgets for any cases on behalf of children and young people.

Chapter 13

The Children's Law Centre supports the establishment of an Executive Non Governmental Public Body to administer legal aid and recommends that at least one of the Commission is an expert in the law relating to children and young people. Such a Body however would have to be strictly independent and subject to impartial and open public recruitment procedures.