Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Massey of Darwen Excerpts

Monday 21st November 2011 Lords Chamber

[Baroness Massey of Darwen]

My Lords, in this far-reaching and detailed debate, I shall speak about my concerns for children, young people and families in relation to the Bill. I am surrounded by eminent lawyers and I am not a lawyer, but when I hear about the concerns of legal organisations and the voluntary sector, that reinforces my own concerns.

I remember David Cameron recently expressing a commitment to turn around the lives of the country's most troubled families. When I see what is happening in education, health, social care, welfare reform and now this Bill, those words seem empty. I know that the Minister is interested in children and young people, but can he encourage the Government to examine the impact of their Bills, individually and collectively, on the lives of children and families? Otherwise, we will pay for this in more ways than one. I wish the Government would look at children and families in a holistic way. They may reach better conclusions.

I turn to the Bill. The Bar Council has stated:

“Justice does not come at any price. The Government has opted for cut price justice, against the views of the overwhelming majority of respondents to its consultation on legal aid”.

The Bar Council points out, as have many others, that removing private family law from the scope of legal aid may cost the taxpayer more, not less. As the noble Lord, Lord Alton, has just said, there will be fewer people represented annually in the family courts, and more children and young people will be affected by the withdrawal of legal aid. In the case of victims and alleged perpetrators of abuse, children and young people could be cross-examined by the accused, with resultant threats to their welfare. The Family Justice Review has pointed out that protection for vulnerable witnesses exists in criminal, but not in family, courts. Many organisations are concerned about the potential outcomes of this.

The Interdisciplinary Alliance for Children points out that the loss of legal aid will increase the trauma of divorce and separation and disputes about children. Family courts and family lawyers can help with solutions to difficult problems in a child-centred way. Issues not resolved through such negotiations and mediation may leave parents struggling, and many of them will not take on that struggle. This could mean that parents will lose contact with their children, or a loss of protection for the child. The alliance has stated that this Bill is not child or family friendly and does not recognise the impact on children caught in the middle of parental disputes. The Bill fails to recognise the impact on people who have to represent themselves. It ignores the impact on victims of domestic abuse, as has been so eloquently expressed in the debate. I will not say much about this, except that domestic abuse can often impinge on children and set up cycles of abuse, particularly in relation to the behaviour of boys.

In my capacity as chair of the National Treatment Agency for Substance Misuse, I have often had contact with the Kinship Care Alliance. Family and friend carers often care for a child because of a crisis in the parental home; for example, death, drug or alcohol misuse, divorce, prison or domestic violence. It is estimated that there are around 300,000 children living with friends or family carers. Previous Bills have discussed the plight of such carers, particularly grandparents who may be impoverished by this extra responsibility of looking after children. Following consultation on the Green Paper, the Government announced that private law applications would be retained within the scope of public funding where a child is at risk of abuse, but not in other circumstances. That could be, for example, where lack of legal aid prevents a family or friend applying for an order to provide a permanent residence for a child.

The Bill as it stands could prevent family members taking immediate action to protect children. To get public funding to apply for a residence or special guardianship order, they will have to provide evidence of abuse. This could delay the child being given residence in a relative's home. There are other issues here, such as the 12-month time limit when a child has been in the care system or under a child protection plan for more than 12 months. Early intervention by family and friend carers in the cases of such vulnerable children is vital. I beg the Government not to introduce such restrictions to legal aid and ask the Minister whether he will meet me and representatives of family and friend carers to discuss this serious and urgent issue.

There is much concern about child poverty. About 2.6 million children in the UK live in poverty, 1.14 million of these in a household affected by disability. Cuts to legal aid for advice on entitlement and appeals for welfare benefits will work against the Government’s ability to deliver on their targets. The organisation Just Rights points out that it would cost only £10 million to protect current legal aid entitlements for children under 18, and £40 million for 18 to 24 year-olds. Some 41,000 children aged under 18, and 124,000 18 to 24 year-olds, accessed legal aid in their own right last year. These cases related to employment, debt, immigration, welfare benefits, clinical negligence and criminal injuries. Community legal advice telephone services helped more than 21,000 children in 2010-11. It has been estimated that each year more than 1 million 16 to 24 year-olds failed to get advice for their civil justice problems, with knock-on costs of around £1 billion. The Government say that they will open an exceptional funding scheme for legal aid. What exactly does this mean? Can the Minister offer some clarity?

There is a Private Member's Bill on trafficking led by the noble Lord, Lord McColl, to be discussed this Friday. Child victims of trafficking may have immigration claims that are not asylum claims and will therefore no longer qualify for legal aid. Trafficking cases are very complex and require expert legal advice and representation. These cases of children who have been abused, exploited or neglected should surely be within the scope of legal aid.

There are concerns from the Standing Committee for Youth Justice, the Prison Reform Trust, Liberty and the Howard League about the youth justice elements of the Bill. These have been discussed earlier so I will not go into them but I am concerned about the issue of 17 year-olds. I think that the Minister made reference to this earlier. Perhaps it has been resolved but I would like to hear more about the safeguards regarding youth cautions and 17 year-olds.

I close by going back to the important issue of legal aid. Resolution, formerly the Solicitors Family Law Association, expresses its extreme concern that under this Bill the poorest and most vulnerable in society will have reduced access to justice. This concern is shared by many noble Lords and was eloquently expressed by the noble Baronesses, Lady Stern and Lady Mallalieu, and the noble Lord, Lord Alton. Another concern that many noble Lords have is that removing this access could increase government expenditure. Noble Lords will see this as an imperative to re-examine parts of the Bill. We cannot leave families, children and young people in distress. That is cruel and uneconomical. I look forward to the Minister’s response.