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Cross-sector call to plug ‘glaring gaps’ in family legal aid when children are deprived of their liberty

Published: 5th December 2023

8 minute read

Organisations and practitioners from across the child welfare and family justice systems are uniting in a call to the Ministry of Justice to urgently plug the gaps in legal support available for families where children are deprived of their liberty. The campaign, led by Family Rights Group, is calling on Government to urgently adopt proposals put forward by the charity to reform a legal aid regime ‘riddled with anomalies and injustices’.

Every year, thousands of children are deprived of their liberty by the Family Court. It’s a measure that can often result in children living in settings which do not meet their needs and far away from their families and communities.

Too often parents and carers have no access to information and legal advice in these situations. Where court applications are made, many are unrepresented, left to navigate confusing and distressing proceedings alone.

Family Rights Group’s analysis of the legal aid regime in relation to depriving children of their liberty has identified many concerning gaps, including a significant divergence with the access to legal aid parents have if their child is the subject of care proceedings.

The charity has led a joint letter to the Ministry of Justice calling for urgent reforms. The call has garnered supported from across the child welfare and family justice system, including Association of Lawyers for Children and Resolution, leading chambers and law firms, Article 39, and many individual legal practitioners and supporters.

Text of the letter

Dear Secretary of State for Justice,

Every year, thousands of children are deprived of their liberty by the Family Court.

Depriving a child of their liberty involves the state restricting the child’s freedom in some way. It often means a child is confined in a particular place. Or that their movements are constrained and supervised in ways which are different to how you would expect a parent to care for a child of that age. It engages the child’s right to liberty under Article 5 of the European Convention of Human Rights. It can have a significant impact on their mental and physical wellbeing and lead to them being isolated and subject to high levels of restraint.

It can also be difficult to identify and secure an appropriate home for the child. Too often this results in children living in settings which do not meet their needs and are far away from their families and communities. Far from familiar people who might be able to offer them support, and comfort during what is likely to be the scariest of times. 

Whether the Family Court deprives a child of their liberty under a secure accommodation order, or an order made by the High Court using powers known as the inherent jurisdiction, it is a draconian measure. So frequent are applications under the latter route that a dedicated National Deprivation of Liberty Court was established in July 2022 to keep track. In its first year, applications involving 1249 children were made.

Yet too often parents and carers have no access to information and legal advice when their child is, or may be, deprived of their liberty. Where court applications are made, many are unrepresented, left to navigate confusing and distressing proceedings alone. Nuffield Family Justice Observatory found that 88.5% of parents and carers were not legally represented at any hearings in applications made under the High Court’s inherent jurisdiction. Ministry of Justice data shows a very low level of legal representation in secure accommodation order cases too.

Family Rights Group has analysed the legal aid regime in these situations and found it riddled with anomalies and injustices. For example, a parent whose child is subject to care proceedings is entitled to legal aid to fund representation in those proceedings. This is not means tested and only a low merits test applies. It reflects an acknowledgement that families must be legally represented when the state is considering removing their child. The same cannot be said in relation to deprivation of liberty proceedings. Instead, the financial situation of parents and carers, and a more stringent merits test, will determine whether they receive legal aid.

The impact of all this on children and families is significant. Whether, where and how a child will be deprived of their liberty are questions without straightforward answers. The relevant law is complex and the potential consequences for the child and their family significant. Access to legal advice and representation both before and during any court proceedings, is vital so that families can understand what is happening and what their options are. It enables families and children to be involved in planning for the child. It is also an important part of making sure fair process for the child and family is followed, in and outside of court.

Family Rights Group have put forward clear proposals in a briefing note for legal aid reform in deprivation of liberty cases. These include aligning the level of legal aid available with that available to parents and children in care proceedings. This would mirror the recent changes the Ministry made to legal aid for parents (and other persons with parental responsibility) in adoption and placement order proceedings. The proposals also include improving access to early advice for parents and children, when deprivation of liberty proceedings are contemplated. They will help families understand what applications may be made and the processes involved.

As signatories to this joint letter, we are calling on Government to urgently address these injustices. With such high numbers of children being deprived of their liberty by the Family Court, there is no time for delay.

Signatories to the campaign include 28 organisations and 59 individuals

Family Rights Group

Article 39

Association of Lawyers for Children

Ben Hoare Bell LLP

Bindmans LLP

The Centre for Innovation and Research in Childhood and Youth (CIRCY) at the University of Sussex

Children’s Legal Centre Wales / Canolfan Gyfreithiol y Plant Cymru

Clan Childlaw

CoramBAAF

Dere Street Barristers

David Gray Solicitors

Dawson Cornwell LLP

Dept. of Social Work and Social Care at the University of Sussex

Equal Vision Merseyside

Family Justice Quality Circle

Goodman Ray Solicitors

GT Stewart Solicitors

Hecht Montgomery Solicitors

International Coalition Against Restraint and Seclusion (ICARS)

Kinship Carers UK

McCormacks Law

Nagalro

National IRO Managers Partnership

Osbornes Law

Resolution

Stephensons LLP

TV Edwards LLP

123 Supported Accommodation.

Caroline Lynch, Principal Legal Adviser at Family Rights Group, said:

Caroline Lynch“Depriving a child of their liberty is a draconian step. The law in this area is complex with significant consequences for the child. Glaring gaps in the legal aid regime mean families often do not have the early-stage legal advice they need. They then don’t understand what is being proposed for their child or aren’t able to effectively participate in decision-making processes.

“Earlier analysis from NFJO showed that once matters reach the courtroom, barely a tenth of parents and carers were legally represented. That means many are navigating court proceedings without any access to legal advice or representation.

“The breadth of support for our call for reform to legal aid is testament to the urgency with which the sector believes this must be addressed. We urge the Ministry of Justice to act.”

Samantha Little of Resolution’s Legal Aid Committee said:

“Resolution members are clear that resources need to be made available to ensure vulnerable children are provided for in the specialist deprivation of liberty court. That includes ensuring that everyone, including parents and carers, are properly represented in the build up to, and during, court proceedings seeking to deprive a child of their liberty. Our members see day in, day out, the difficulties caused to families by inadequate legal aid provision. When extremely vulnerable children face being placed far away from home, often in inappropriate settings due a lack of suitable provision, parents and carers must be able to participate in proceedings effectively. These proceedings are complex and often distressing. Parents/carers should be assisted in understanding the evidence and the options for their child and they should be represented so that they can communicate their views to the court. Resolution members endorse Family Rights Group’s proposals to address the legal aid gap for these families.”

See also

In this video, Frances Edwards, Legal Adviser at Family Rights Group, talks about our proposals for legal aid reform when children are deprived of their liberty by the Family Court, and why this matters.

Access to justice - Deprivation of Liberty video thumbnail

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