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Family Rights Group secures major legal aid win

Published: 23rd December 2022

5 minute read

The Government has introduced, in Parliament, new legal aid changes for kinship carers and parents, which will help more children to live safely within their families. Family Rights Group is proud to have led this campaign.

The draft legislation brought forward by the Ministry of Justice will:

  • Ensure special guardians who are applying to take on the care of children are eligible for means and merits tested legal aid in private law court proceedings
  • Provide for non-means tested legal aid for parents who oppose applications for placement orders or adoption orders for their child. This corrects an injustice that parents were not always legally represented in proceedings that could result in their child being adopted.

Family Rights Group has long campaigned for reforms to the legal aid regime to ensure families can access the legal advice they need when the state is making decisions about their children with potentially lifelong consequences. The legislation implements commitments originally made by the Ministry of Justice in the 2019 Legal Action Support Plan, following a campaign led by Family Rights Group with other legal organisations. The cost of living crisis and austerity, now makes this win even more significant.

Kinship care 

Many grandparents, brothers, sisters and other relatives or friends are not entitled to free legal advice and representation when considering taking on the care of a child who cannot safely remain with the parents. This has significant implications for the child and their potential kinship carer. As the All-Party Parliamentary Group on Kinship Care found in its Legal Aid Inquiry earlier this year, too many carers end up lost in a legal labyrinth, with long term negative consequences for the child. In some cases, kinship carers are getting into significant debt in order to fund their legal advice and representation.

A special guardianship order is a legal order that provides a kinship carer with parental responsibility for a child until they turn 18 years old.

In its February 2019 report, “Legal Support: the way ahead”, the Ministry of Justice committed to expand the scope of legal aid to cover special guardianship orders (SGOs) in private law – “by Autumn 2019”. Family Rights Group has continued to press for this commitment to be enacted, in conjunction with the Kinship Care Alliance and other legal organisations. We are delighted that this has now been realised. Some kinship carers and children will undoubtedly benefit.

This measure will come into force in 1 May 2023.

Parents 

It is unjust that some parents are not legally represented in proceedings that could result in their child being adopted.

During the passage of the Children and Social Work Act 2017, Family Rights Group lobbied for non means tested and non-merits tested legal aid for all parents involved in court proceedings about the adoption of their children. The then government minister conceded this point during the passage of the Bill and the 2019 Action Plan made a commitment to address the disparity.

The legal changes introduced this week now rectify this injustice. This measure will come into force on 1 March 2023.

But our work does not stop here…

The measures do not go far enough, and our campaign for more extensive reforms continues.

Legal aid in private law proceedings will be means tested, so grandparents who own their home but are financially struggling may not qualify for legal aid.

Moreover, most special guardianship orders are made in public law proceedings, following the local authority bringing care proceedings. Only where the prospective carer is made a party to those proceedings or where they make a private law application for a special guardianship order may they then be entitled to legal aid for full representation (albeit means and merit tested). Many carers do not have the early legal advice to know that becoming a party to proceedings is an option, or how to pursue it. Likewise, for making a private law application.

The APPG inquiry also highlighted the importance of investing in free, specialist, independent advice for kinship carers provided by Family Rights Group’s Advice Service, which is currently underfunded.

Caroline Lynch, Family Rights Group’s principal legal adviser, said:  

“Access to legal advice is critical in assisting families to understand their rights and options. Family Rights Group have long argued that if the state is taking the step of removing a child from their family, the family must have legal advice to make informed decisions. For these reasons, we wholeheartedly welcome the changes to legal aid announced for kinship carers and parents today.”

“It is a significant and important step forward. However, as the APPG inquiry heard from carers and legal professionals, remaining gaps in provision of legal aid and advice mean many prospective kinship carers still face a confusing legal labyrinth without the support they need when stepping forward to raise children who might otherwise be raised with strangers in the care system.”

“We look forward to the Government publishing its implementation plan responding to Independent Review on Children’s Social Care. Family Rights Group urges them to take this opportunity to be more ambitious than the changes proposed so far and deliver comprehensive legal aid for kinship carers. Without it, more children risk being unnecessarily separated from their families, at great personal cost to them and greater long term financial cost to the state.”

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