LASPO Act leaves children with nowhere to turn
Research published by the Children’s Commissioner provides firm evidence that, as widely predicted, the 2013 legal aid cuts are having a devastating impact on vulnerable young people. Fiona Bawdon, editor of Legal Action, reports.
As a 14 year old, it was only thanks to the BBC children’s television series ‘Tracy Beaker’ that Becky even knew about the existence of social services. ‘I grew up watching her and she was in this care home and it looked so fun,’ says Becky, now 17. The adventures of the schoolgirl character, from the books by Jacqueline Wilson, were in stark contrast to Becky’s own home situation, where she lived alone with her increasingly abusive mother.
Her mother’s violence had begun when she was just 11. By the time Becky was 14, things were so bad that, inspired by Tracy Beaker, she asked social services to take her into care. The response was not what she had been led to expect from the TV show: instead of being offered help, she was told to return home, which reluctantly she did. Her mother’s aggressive behaviour continued, culminating in Becky being burned with an iron and slashed across the face with keys. To make her situation worse, by now Becky had been diagnosed with multiple sclerosis (MS).
On her 16th birthday, Becky ran away from home, and told social services that she was homeless. Again, social services would not help – and it was only when Becky refused to leave their offices that she was referred to the housing department. It was to be another two months (during which she slept on friends’ sofas) before Becky – barely 16 and in poor health – was finally provided with accommodation.
All this time, Becky acted entirely on her own, with no help from any independent professional. She had no idea that her situation was a legal matter, or that, when it refused to house her immediately, the local authority was in breach of its statutory duties towards her as a child.
Becky’s is just one of a number of stories to feature in research published by the Office of the Children’s Commissioner (OCC).1The impact on children of legal aid changes since April 2013, August 2014, OCC.
The study, conducted by the children’s charity Just for Kids Law on behalf of the OCC, provides the first firm evidence that the legal aid cuts are having a serious impact on the ability of some of the most vulnerable young people to get the support they need, and to which they are legally entitled.
Becky’s experience was not unusual, and some clear themes emerged from the interviews. Like Becky, the majority (13 out of 19) had been homeless at some point. Most had made repeated unsuccessful attempts to resolve their situation on their own before discovering that it was a legal issue. Often this discovery came about only as a result of a chance encounter with an adult. In Becky’s case, it was after she had a bad relapse in her MS, and went to see a college welfare officer for support, that she was advised to seek legal advice over the way she was treated by the local authority.
Box 1 Key research findings
On the impact of having a lawyer involved:
‘When legal aid changed, that’s when he [the solicitor] couldn’t help me any more. So, that’s when my [youth] advocate came in, so that’s when everything got worse.’
Shola, 18, had been in the UK since age seven. He was subsequently deported to his country of origin, following a spell in a young offender institution and the rejection of his immigration application.
‘If it had just been me and my [youth] advocate then – don’t get me wrong – she’s brilliant, but we would not have been listened to on a lot of things. We would have been ignored, because we had been being ignored, and that’s why we had to go and get the solicitor involved.’ Peta, 16, homeless.
On what would have happened without legal support:
‘I would think my life is a waste. I would have gone, wouldn’t have existed at all, been dead a long time ago. I would have given up, it wasn’t worth it.’
Kayefi, 17, trafficked to UK at age 11.
On being a litigant in person:
‘Apparently, I was “cold and calculating”. I’d never heard someone using “cold and calculating” unless it was a murder case. It felt really intimidating because they are all sitting there facing me, and I didn’t really say much and I cried. I just felt defenceless.’
Sara, on attending a governors’ meeting, with only support from her older brother.
On the response of local authorities to litigants in person:
‘I told him [the young homeless person] exactly what to do and who to speak to in the relevant [local authority] department, who I had worked against over many years. He got an absolutely appalling response. I couldn’t believe that particular professional was responding that way because she always played it by the book, but now I am off it she can do what she likes. He was given unlawful instructions and there was nothing I could do.’
Former Law Centre® solicitor on what happened to a former client when she could not represent him any more because of the removal of legal aid.
Box 2 Child rights impact assessment on LASPO Act
The OCC issued a ‘Child Rights Impact Assessment’ in relation to the April 2013 legal aid cuts. Of particular concern was the small number of grants of exceptional funding: 57 in the first year compared with the 3,700 predicted by the Ministry of Justice.
‘Although “exceptional funding” was meant to be available in cases where failure to fund could infringe the applicant’s rights under the Human Rights Act … or under EU law, in practice this requires complex preparatory work, impractical for a child without a solicitor,’ says the OCC. The impact assessment concludes that a wide range of rights in the UN Convention on the Rights of the Child (to which the UK is a signatory) are being jeopardised by the LASPO Act cuts, ie:
•article 9: right not to be separated from parents without due process;
•article 28: right to an education;
•article 19: right to freedom from maltreatment;
•article 3: best interests of the child being the primary consideration by decision-makers; and
•article 12: right to be heard and for the child’s views to be given due weight.
There were repeated accounts, both from young people themselves and professionals working in the field, of the difference that having a lawyer involved made to the outcome of a problem and the response received from government bodies. Even the involvement of a ‘youth advocate’ – a specialist support worker with knowledge of the relevant legislation, but not legally qualified – made little difference. Local authorities would frequently ignore their statutory obligations towards a child until legal action was threatened or started.
One young person said: ‘They know it’s unlawful, but really just you saying it, they don’t really care. They’re thinking: “Ok, when you bring a lawyer back to us, then we’ll listen.”’
Some of the professionals interviewed agreed it was a deliberate ploy to save money. ‘You have state bodies who basically do stuff they know is challengeable because in 100 cases where they make illegal decisions, only ten per cent will challenge, and it’s worth it because those 90 other people get deported, or they don’t have to pay for the right education or the right support.’
Young people showed remarkable tenacity in trying to resolve problems unaided, but many were clearly out of their depth, even in relatively informal hearings. One described crying and feeling defenceless at a governors’ meeting that she attended with her older brother after she was permanently excluded from school.
A homeless 17 year old, who was trafficked to the UK at age 11, was accused by social workers of being a fraud when she sought help. Never having heard the word before, she had to look it up in a dictionary, and was distressed to discover that they thought she was lying.
She said: ‘Social workers wouldn’t even believe my mum died, they just didn’t want to believe anything. So, what’s the point in telling them anything? They are not going to help you, you are just going to go on talking like an idiot in front of them because they are just going to look at you like you are lying.’
One young woman’s reaction to being unrepresented at a hearing to decide her child’s residence was described by research author, Joel Carter, as ‘a devastating, almost out-of-body experience’. A victim of domestic violence, with mental health issues, she found herself up against not just her ex-partner, but also the local authority barrister, with just her former in-care advocate for support.
When called on by the judge to speak on her own behalf, she felt unable to: ‘I’m not a barrister. What am I going to say? Even if I do say anything, you’re not going to listen to me.’
Her ex-partner was granted sole residence, and it was only later, with the help of a pro bono barrister, that she was able to get the order amended to give her shared care. Even then, the experience of having been to court alone continued to take its toll. ‘It’s just changed me as a person. I’m not confident outside; it’s just mentally drained me. I feel like an old woman.’
She was not alone in finding having been a litigant in person a searing experience, even when her situation had been resolved. The teenager referred to above, who felt defenceless at the governors’ meeting, continued to feel the effects even after she was settled at a new school and completing her A-levels (see also Box 1). ‘I will literally photocopy homework and put it in a folder, filed under evidence. Just in case. If the school ever tries to say: “She didn’t do her homework, or she didn’t do this.” It’s like my own evidence and I will never go to talk with senior members of staff by myself because I don’t know what they are going to say, and it could turn negative and then it’s going to be all of them against me. Their words against mine – and no one is going to believe my word.’
Box 3 The impact of legal aid changes on children since April 2013
Just for Kids Law’s research was based on indepth interviews with 19 children and young people aged 13–22, who had used its services after experiencing problems with housing, immigration, education and family contact. It also included focus groups with professionals working in the youth field, including lawyers, case-workers, advisers and youth advocates.
Key points from the research:
•Most of the young people did not know the issue they faced was potentially a legal matter, or that they had enforceable rights. Some did not know about legal aid at all, or thought it only existed for criminal cases.
•It was only following a chance encounter with an adult (such as a college welfare officer) that young people discovered their problem might have a legal solution. Often, this was only after they had spent years trying unsuccessfully to sort it out on their own.
•13 of the 19 interviewees had been homeless at some point.
•Interviewees had a range of physical and mental conditions, including MS, attention deficit hyperactivity disorder and autism.
•Acting on their own meant that young people were less likely to be able to resolve problems, and also had a bad effect on their wellbeing. Interviewees spoke of feelings of hopelessness, detachment and despair.
•Where legal aid had been removed, interviewees relied on charity, pro bono help and fundraising in order to get access to legal advice.
•There was evidence of local authorities taking advantage of young people’s lack of knowledge of their rights, and lack of legal representation, to avoid providing statutory services, such as housing.
•The intervention of a non-legally qualified ‘youth advocate’ – even when s/he knew the relevant law – was not enough to ensure provision of statutory services. Often it took the involvement of a lawyer starting legal proceedings to force a government body to act.
•Many of the young people’s problems were complex and difficult to resolve, even with expert legal help.