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.