Government insists residence test for children are not unlawful

The findings of a high-profile cross-party committee, which suggested that the legal aid residence test for children was unlawful, have been rejected by the Government.

The report published by the Joint Committee on Human Rights earlier this year found that the 12-month residency test – introduced last August – would contravene the United Nations Convention on the Rights of the Child.

The committee said that without the support of legal aid children would rarely be able to represent themselves in a variety of legal proceedings and it would therefore limit their access to justice.

They said children continued to have a legal right to take part in legal proceedings concerning their interests and that it was “wrong in principle’ and ‘unlawful’ to make it more difficult for them to gain access to rights afforded to others.

But in response the Government insisted that the introduction of a 12-month residence test would not breach the convention and was not discriminatory treatment on a group or individuals.

It said that with funding for legal aid lower than ever, it could not justify spending limited resources on individuals that do not have a strong connection to the UK and that instead spending needed to be aimed at the most ‘justified’ cases.

Since the committees report the government has made some changes to its draft proposal, including not applying it to cases relating to an individual’s liberty, where the individual is particularly vulnerable, or where the case relates to the protection of children.

The government said it is ‘confident’ that children will have the necessary assistance in order to make an application for exceptional funding.

In July, the High Court condemned the residence test as ‘unlawful’, ‘discriminatory’ and impossible to justify. The government is due to appeal the judgment.