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Family Law

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03 JUL 2014

Childrens' residence tests breach their rights, according to Human Rights Committee

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Childrens' residence tests breach their rights, according to Human Rights Committee

In their new Report, Legal aid: children and the residence test, the Joint Committee on Human Rights concludes that the impact of the legal aid residence test on children will lead to breaches by the United Kingdom of the United Nations Convention on the Rights of the Child (UNCRC) because it will in practice prevent children from being effectively represented in legal proceedings which affect them.

The Government proposes to implement its residence test policy by means of an affirmative statutory instrument, which it laid in draft on Monday, 31 March. The Committee’s Report looks at that statutory instrument, particularly in relation to its likely effect on children. It regrets that the Government’s proposal was not introduced by primary legislation to allow both Houses to scrutinise and amend its provisions, and it urges the Government to withdraw the instrument as currently drafted. If the Government does decide to proceed by affirmative instrument, the Committee expects the newly laid instrument to reflect its concerns as set out in its Report with regard to its impact on children.

The Committee states that the Government’s justification for its residence test proposal – to ensure that only individuals with a strong connection to the United Kingdom can claim civil legal aid at the UK taxpayers’ expense – cannot be applied fairly to children. It 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 UNCRC, or to ensure that the child’s best interests are a primary consideration in such proceedings, as required by Art 3.

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The Committee’s Report set out in some detail the potential impact of the residence test on four particular categories of children:

  • unaccompanied children,
  • undocumented children,
  • children with special educational needs or disabilities, and
  • section 17 and 20 Children Act 1989 cases.

Dr Hywel Francis MP, the Chair of the Committee, said:

'We welcome the positive changes to the legal aid proposals the Government has made in response to our first Report on this subject – particularly to exempt refugees from the residence test. However, 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. Given the critical conclusions reached by two other parliamentary committees about this instrument, I think the Government should withdraw it immediately.'

The report is available to download here.