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Can families get legal aid if a child is deprived of their liberty?
Legal aid is the use of government money to pay for people to receive free legal advice and representation. Legal aid may be available for the family of a child who is deprived of their liberty. And to the child too.
But whether someone can access legal aid and what is available will depend on the precise situation including:
- Whether children’s social services have made an application for a court order so they can deprive a child of their liberty
- The type of court order children’s social services have applied for or are thinking about applying for and
- The financial situation of the person hoping to access legal aid.
A specialist children law solicitor will be able to give advice about whether legal aid is available in your specific situation.
The FAQs below explain more about what legal aid is and when it may be available.
What is legal aid?
Legal aid is the use of government money to pay for people to get legal advice and representation. Only some types of children law cases are ‘in scope’ for legal aid. This means legal aid is potentially available for the people involved.
But what is available and whether someone qualifies for legal aid varies. It will depend on the individual’s circumstances and the type of case.
Who decides if someone will get legal aid?
The Legal Aid Agency is the government body responsible for providing legal aid in England and Wales. It has to:
- Ensure legal aid services from lawyers and the voluntary sector are available to the public
- Apply rules to decide whether someone can access legal aid.
Are finances relevant to whether someone qualifies for legal aid?
Families and children sometimes need to pass a means test to receive legal aid in deprivation of liberty applications. A means test involves looking at the person’s financial situation as part of deciding whether legal aid will be available to them.
What is a merits test for legal aid?
A merits test involves the Legal Aid Agency deciding whether the person wanting legal aid has shown their case has sufficient merits to justify them having a lawyer to represent them. What is relevant to the assessing of merits can vary. This is because it depends on the type of legal aid they need.
Here is a quick explainer of what legal aid is and what a ‘means test’ and ‘merits test’ are.
Who will qualify for legal aid if a child is deprived of their liberty?
Who will qualify for legal aid when a child is deprived of their liberty depends on:
- Whether children’s social services have applied for an order or are thinking about doing so and
- What type of order they want to apply for the child.
The questions and answers below provide more information about what might be available and to who.
Can parents get legal aid when children’s social services apply for a secure accommodation order?
Legal aid may be available for a parent when children’s social services apply for a secure accommodation order. The parent will need to pass a means test and a merits test to receive legal aid.
If there are care proceedings happening at the same time, legal aid granted for the care proceedings may be able to help pay for advice and representation in the application for a secure accommodation order.
Can a kinship carer get legal aid when children’s social services apply for a secure accommodation order?
Legal aid may be available for a person who has parental responsibility for the child when children’s social services apply for a secure accommodation order. This includes kinship carers who have parental responsibility for the child under a child arrangements order or special guardianship order.
The person with parental responsibility will need to pass a means and a merits test to receive legal aid.
If there are care proceedings happening at the same time, legal aid granted for representation in the care proceedings can be amended to also pay for representation in the application for a secure accommodation order.
Are children entitled to legal aid when children’s social services apply for a secure accommodation order?
Yes. Legal aid is available for the child when children’s social services apply for a secure accommodation order. A child does not need to pass a means test and only a very low merits test applies. Usually, a child will receive legal aid and be legally represented.
The Family Court cannot make a secure accommodation order for a child that is not legally represented. The exception to this is where a child knows of their right to apply for legal aid, had opportunity to, but refused or failed to do so.
Can parents get legal aid if children’s social services apply for a High Court deprivation of liberty (DOLs) order?
Legal aid may be available for a parent when children’s services apply for an order under the High Court’s inherent jurisdiction (DOLs). Sometimes people use the term ‘DOLs’ or ‘DOLs orders’ as a shorthand for talking about this type of order.
The parent will need to pass a means test and a merits test to receive legal aid.
If care proceedings are happening at the same time, the legal aid granted for the care proceedings may be able to help pay for advice and representation in the deprivation of liberty (DOLs) proceedings.
Can a kinship carer get legal aid if children’s social services apply for a High Court deprivation of liberty (DOLs) order?
Legal aid may be available for a person who has parental responsibility for the child when children’s services apply for an order under the High Court’s inherent jurisdiction (DOLs). This includes kinship carers who have parental responsibility because they hold a child arrangements order or special guardianship order for the child.
The person with parental responsibility will need to pass a means and a merits test to receive legal aid.
If care proceedings are happening at the same time, the legal aid granted for the care proceedings may be able to help pay for advice and representation in the deprivation of liberty (DOLs) proceedings.
Do children get legal aid when children services apply for a High Court DOLs order?
Yes. Legal aid is available for the child when children’s social services apply for a deprivation of liberty order under the High Court’s inherent jurisdiction (DOLs). They do not need to pass a means test. A low merits test applies but a child who is the subject of the application will normally:
- Be accepted by the Legal Aid Agency as passing the merits test and
- Receive legal aid and be legally represented in the court proceedings.
Is legal aid available before children’s services apply to court for an order?
There is often only very limited legal aid available for families involved with children’s services to get early-stage advice. This includes when children’s social services are thinking about whether they need to apply for a secure accommodation order. Or whether to apply for a High Court deprivation of liberty order (DOLs).
A type of legal aid called ‘legal help – public law (level 1)’ may be available before an application to court has been made. The people who may entitled to this legal aid are:
- Parents
- Others who have parental responsibility for the child – for example a kinship carer with a child arrangements order or special guardianship order
- The child.
‘Legal help – public law (level 1)’ legal aid usually covers:
- An initial meeting with a solicitor
- Follow-up advice and, where appropriate,
- The solicitor writing to and liaising with the local authority.
To access this legal aid, there is a means test and merits test to pass. The merits test is: ‘is there ‘sufficient benefit’ to the person seeking legal aid, having regard to ‘all the circumstances of the case?’.
This diagram explains more about what may be available to parents and carers before and after children’s social services apply for an order to deprive a child of their liberty.
It can be difficult to access this type of legal aid. This is because there may not be many local solicitors providing this type of early advice before court proceedings have started.
A specialist children law solicitor will be able to give advice about whether legal aid is available in your specific situation.
For children there are also some extra rules which effect whether they can apply for this type of legal aid. So if a child wants to access this type of legal aid, they should speak to a solicitor to see if they are able to do this.
To find a solicitor, search using the ‘how to find a solicitor’ function on the Law Society’s website. It is important to try to find a solicitor who is a specialist in children law. Or who has Children Law Accreditation.
For more information about legal aid in deprivation of liberty cases:
- See Family Rights Group’s campaign to improve access to justice for families of children deprived of their liberty and
- Family Rights Group’s briefing paper: Legal aid in deprivation of liberty cases – The current legal aid position and proposals for reform
- See our Working with a solicitor guide on our Top tips and templates page for more information about finding a solicitor.
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