Availability of, and Payment for, Representation Under This Part

Orders of the Day — Legal Aid Bill [Lords] – in the House of Commons at 11:30 pm on 4th July 1988.

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Photo of Mr John Fraser Mr John Fraser , Norwood 11:30 pm, 4th July 1988

I beg to move amendment No. 25, in page 10, line 44, at end insert— `(2A) Subject to subsection (6) below, representation shall always be granted to a child who is a party to the proceedings.'. The amendment would ensure that legal aid was always granted in cases involving a child. We argued the case unsuccessfully in Committee. I advance it again because, in the light of recent events, we need to be especially careful to look after children's needs. I know that we have not yet had the published report on Cleveland, but there is nevertheless widespread concern about the rights of children in proceedings—not for damages for personal injury but involving wardship or custody.

Once a child has been made a party to proceedings there is an overwhelming case for that child to be separately represented. An entirely objective mind should be put on the case with a view to looking after the child's interests. I know that in many cases the supposed interests of the child will be represented by a local authority or other statutory authority or a parent. However, it seems to me that there is no substitute for ensuring that the child is separately represented. Under the amendment the child would have to be made a party to the proceedings to be granted legal aid, but once that had happened the child —innocent and often unable to make a judgment for himself—would have entirely independent and separate representation, apart from the other parties involved. I am sure that anyone who thinks about the need for a child to have his case properly put without its being influenced by those with a proprietorial interest in him would accept that the case is well made out. The amendment would involve only a modest increase in public expenditure, and I therefore hope that the Minister will accept it.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Solicitor General (Law Officers)

There is much common ground between us. The only reason why we resist the amendment is that in a number of cases it might result in injustice, whereas under the law as it stands the circumstances that the hon. Gentleman has outlined will almost certainly always result in legal aid being granted.

The effect of the amendment is to remove from the case of a child who is a party to the proceedings any consideration of the merits test.

It has always been an essential feature of legal aid, first, that the applicant for legal aid should have insufficient means to be able to carry on the case for himself and, secondly, that the applicant should have a meritorious case. That must, in principle, apply to children as much as to anyone else. A child who is made a party to a case is very unlikely to fail the merits test, so that in practice there is likely to be nothing standing in his way in obtaining legal aid. However, making it a matter of principle that a child should receive legal aid would create an opportunity to exploit the position of children, which could be very unfair to those who found themselves on the other side in the litigation. It is for that reason, which I am sure is not intended by the hon. Gentleman, rather than for any reason of denying children with meritorious cases legal aid that I must resist the amendment.

Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton 11:45 pm, 4th July 1988

Is my hon. and learned Friend saying that children will be joined as parties just because there will be an obligation to give them legal aid? I do not follow the logic of what my hon. and learned Friend has said.

Photo of Sir Nicholas Lyell Sir Nicholas Lyell Solicitor General (Law Officers)

I do not think that my hon. and learned Friend has seen how the amendment fits into the structure of the Bill; I suspect that that is his difficulty. It is proposed that children should be granted legal aid regardless of merit. I am sure that my hon. and learned Friend would not wish that, but would wish that any child with a meritorious case, who had not the means to be represented, should be granted legal aid. That is also our objective, and there we would find common ground. However, as I have explained, the amendment goes further and is contrary to principle. Consequently we must resist it.

Amendment negatived.