As can be seen from Chapter 6, Part 6, the legal aid scheme which applies to all this is beset by its own semantic contortions. Definitions do not parallel those in the children proceedings scheme. For example, the reader must distinguish between ‘specified proceedings’ (CA 1989, s 41(6); and see 6.12) which tell the child whether she or he should have appointed a children’s guardian (CA 1989, s 41(1)).
By contrast, to establish whether or not legal aid is available the child must work out whether her or his case is:
- A ‘special Children Act 1989 case’ (6.108); or is it
- A ‘a public law case’ (eg because it is not a ‘special Children Act 1989 case’) (6.112); or, yet again, is it
- Any other form of case where ordinary civil legal services representation may be available (6.114)?
All this needs to be kept clear; since in the Re W case it seems the courts (including the Court of Appeal) may have got it wrong (see 6.116).
I have said here that the child must work out whether she is entitled to legal aid. And of course, most children will have help, probably from a lawyer. But for the mature – that is, the Gillick-competent child – that is not guaranteed. That child may have to work through the procedural and legal aid rules to understand what his or her rights to representation are. In the Re W case the lawyers who were dealing with the child’s case (though against her wishes) got the law wrong.
That any children are confronted – whether represented or not – by a law which even a senior children judge finds ‘complex’ – and may wrongly construe – is a blot on our justice system. (W was busy studying for and sitting exams, so she probably had little time in any event to study the minutiae of CA 1989, s 41(6), FPR 2010, Pt 16 and aspects of the legal aid scheme.)
This preface introduces Children’s Views and Evidence which can be purchased here.