Reforms to Legal Aid and Advice

Depriving a child of their liberty, whether under a secure accommodation order or the High Court’s inherent jurisdiction, is a draconian step which can:

1. Have a significant impact on a child’s mental and physical wellbeing
2. Intervene with a child’s right to liberty (European Convention of Human Rights, Article 5)
3. Result in a child being isolated and subject to high levels of supervision and restraint.

Yet families of children in this situation have limited, or no, access to legal advice and information. The legal aid framework is riddled with anomalies and injustice. A parent whose child is subject to care proceedings is entitled to legal aid to fund advice and representation. This is not means tested and a low merits test applies. The same is not true where the child is the subject of an application to deprive them of their liberty, either under secure accommodation order or the High Court’s inherent jurisdiction. Parents must pass a means test and a higher merits test; this results in many being unrepresented.

Whether, where and how a child will be deprived of their liberty are questions without straightforward answers. The relevant law is complex. It is vital that parents and children have access to legal aid to fund advice and representation to ensure:

1. They understand the ways in which their child may be deprived of their liberty
2. A fair process for the child and family is followed, both in and outside of court
3. Families are involved and have a voice in planning for their children
4. Partnership working, an underlying principle of English and Welsh legislation, is supported through children and families understanding their rights and options.

In May 2023, Family Rights Group published “Legal aid in deprivation of liberty cases: The current legal aid position and proposals for reforms.” It provides an overview of legal aid provision in situations where a child is, or may be, deprived of their liberty by the Family Court. It includes FAQs explaining legal aid where a secure accommodation order or an order under the inherent jurisdiction is sought and provision for early-stage legal advice. Family Rights Group’s proposals for legal aid reform are then set out.

Currently 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. In some cases this results in kinship carers getting into significant debt in order to fund their legal advice.

A special guardianship order is a legal order that provides a kinship carer with ‘exclusive’ 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 extend legal aid. The report said it would “bring forward proposals to expand the scope of legal aid to cover special guardianship orders (SGOs) in private law – by Autumn 2019”.

Family Rights Group with other interested legal organisations including:

• the Law Society
• Resolution; and
• Association of Lawyers for Children

met with the Ministry of Justice to discuss the proposals. We drew up a paper setting out realistic changes that could be made to the legal aid regime. These changes could have an immediate and significant impact for potential special guardians.

See also our article in Family Law Week which discusses this further – Guarding Special Guardianship: the need for legal aid reform.

In Spring 2022, Family Rights Group facilitated an inquiry into legal aid and advice on behalf of the All Party Parliamentary Group on Kinship Care. Read more about that on the APPG’s website.

In Autumn 2022, the Ministry of Justice laid draft legislation to 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. See Family Rights Group’s response here.

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

The Ministry of Justice in their report Legal Support: The Way ahead in February 2019 agreed to address this. The report proposed to extend non-means tested legal aid for parents (and others with parental responsibility) who wish to oppose applications for:

• Placement orders; or
• Adoption orders.

The report said that government would bring forward proposals to do so by summer 2019.

The Ministry of Justice report followed Family Rights Group securing such a commitment from Edward Timpson MP, the Government Minister for Children and Families during the passage of the Children and Social Work Act 2017.

Read more about our work on the Children and Social Work Act.

In Autumn 2022, the Ministry of Justice laid draft legislation to provide for non-means tested legal aid for parents who oppose applications for placement orders or adoption orders for their child. See Family Rights Group’s response here.

In February 2019, the government announced a review of the means test for legal aid as part of the Legal Support Action Plan. In March 2022 the Ministry of Justice published proposals for changes to the means test. The changes relate to how an individual’s finances will be assessed when deciding eligibility for legal aid. There are no proposals to change the areas of public and private children law that are in scope for legal aid.

The review makes many proposals. One proposal is to increase the gross income threshold (the highest amount someone can earn to be eligible for legal aid) from £2,657 per month (£31,884 per year) to £34,950 (£2,913 per month). Another is to increase the equitable disregard (the amount of a person’s equitable interest in their home that the Legal Aid Agency will disregard when assessing capital) from £100,000 to £185,000. Other changes include increasing the age at which pensioners, with very low incomes, may be entitled to an additional capital disregard. Currently, this is only available for those 60 years and above but in the proposals this would change to 66 years of age.

Family Rights Group responded to the consultation. Read our response here.