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Lords reject proposals to replace legal aid for children with CFAs

27 March 2012

The government suffered another battering over the legal aid bill in the lords this afternoon as peers endorsed a series of amendments to bring all children cases back into scope.

Lord McNally (pictured), for the government, sought to convince the lords that these amendments were not needed as more than 80 per cent of cases involving children were successfully brought under ‘no win, no fee’ agreements.

In the tenth government defeat over the Legal Aid Sentencing and Punishment of Offenders bill, the lords supported Lady Grey-Thompson’s amendment to re-instate legal aid for all children cases by 232 votes to 220.

The amendment by the former paralympian would see all cases involving children under 18 able to access legal aid in private family law cases, benefits and other welfare cases, education, housing, immigration and clinical negligence cases.

She said rejecting the amendment would result in 6,000 children being deprived of access to justice and would also amount to a breach of their human rights if they were denied the capacity to put their case.

A few minutes earlier, Lady Butler-Sloss warned that without lawyers to keep family cases under control disputes involving litigants in person could take “an absolute age”.

“Cases that should take a day and a half will take a whole week. Every time I asked a litigant in person to hurry up it would take up another hour,” the former Court of Appeal judge recalled.

If the changes went ahead as planned, “it would clog up the courts to a very significant degree”, she predicted.

Inflicting the second defeat of the afternoon on the government, the lords also backed an amendment by Lord Cormack seeking specifically to keep all clinical negligence cases involving children within scope.

The Conservative peer said the proposal to cut clinical negligence claims by children older than nine weeks’ old out of legal aid was “relatively small” but would make “a big difference” to a number of people.

“Those who are damaged by an agency of the state have a right to expect the assistance of the state. The NHS is precisely that. If someone through clinical negligence is damaged, there should be an automatic right of redress, particularly when it comes to children”, he said.

Lord Cormack referred to the earlier debate in the Lords on the issue and said there shouldn’t be a difference between patients who are not conscious of the damage they suffer and those who are – children who are paralysed rather than brain damaged.

“We shouldn’t pass legislation in in this house without being aware of that”, he told the government. “We have a duty to say you haven’t got it right.”

Others peers spoke in support of the amendment, including Lady Eaton who also criticised the nine-week cut-off point.

She said the only recourse for parents whose children were older than nine weeks’ old but faced the same difficulties as those with younger children would be to apply to the director of legal aid arguing they qualified as an “exceptional case”.

Baroness Howe called for the inclusion of care leavers and young vulnerable adults up to the age of 24.

She said they were a particularly vulnerable group more likely to end up unemployed, homeless or in prison.

“We need good legal advice to escape poor outcomes”, she pleaded, adding that the £4m needed were “particularly cost effective”.

Lib Dem peer Lord Thomas came to the government’s rescue, saying that cases such as those involving disabled applicants, mental health and capacity, and domestic violence would remain within scope.

For the rest, he suggested, they would be adequately brought under “refashioned” conditional fee agreements.

Lord Bach countered that CFAs were “no substitute whatsoever for the kind of problems that affect these children”.

In the end peers voted in support of Lord Cormack’s amendment 228/215.

A broader amendment to keep legal aid for vulnerable people failed to get the necessary support with only 206 votes in favour and 229 against.

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Legal Aid Children Divorce Marriage & Civil partnership