Family justice and legal aid

Current action

From 1 May 2023, legal aid changes which extend eligibility for those pursuing special guardianship orders in private family law came into force following a commitment made by the Ministry of Justice in 2019.

The terms of reference of the Review of Civil Legal Aid note that scope and eligibility of legal aid are not within its remit.

The Law Commission has agreed to undertake a review of the legal framework for kinship carers and whether the current landscape across England and Wales is fit for purpose. Project details confirm this will include how current orders, including child arrangements orders and special guardianship orders, are working for kinship carers and the potential for reform of such orders in the kinship care context, including “considering the possibility of a new bespoke order for this situation”.

Our verdict

The Independent Review of Children’s Social Care recommended that legal aid should be provided to kinship carers in a range of circumstances, but no further action has been taken through the National Kinship Care Strategy despite an earlier commitment to explore “options for an extension of legal aid for carers with SGOs and CAOs”. This is significantly disappointing given the clear need for improved legal advice and support for kinship carers.

Closing gaps in the provision of initial free and independent advice and legal aid support between kinship carers involved in securing different legal orders across both public and private law is crucial; evidence shows how there is significant overlap with public law and local authority involvement within private law cases, but the support available to kinship families during and afterwards is often dictated by the legal arrangement and route taken.

For some kinship carers, choosing a private law route may be a deliberate and conscious decision, but too many others are poorly advised and pushed down this expensive and often challenging route without understanding the short- and long-term support implications for them and their children. Local authority support for kinship carers is often unavailable for those who have an arrangement secured by an order made in private proceedings.

What should happen next

The next Government should work closely with the Ministry of Justice and commit to extending legal aid to a wider group of kinship carers. This should include reform to unlock independent legal advice for prospective kinship carers considering a legal order, funding for family and friends pursuing a legal order in either public or private law proceedings, and protection from costly litigation for existing kinship carers taken back to court by birth parents at a later date.

Additional legal aid entitlements should be non-means tested to ensure all kinship carers can make the best possible decisions in the interests of children and are not pushed into financial insecurity. Means testing can particularly penalise groups such as older kinship carers who may have some pension or other savings, or assets in the form of owned property they have spent years paying off a mortgage towards, but who have very low incomes and accessible capital with which to pay legal costs associated with becoming a kinship carer and establishing permanence for a child.

These extensions would be strengthened further by ensuring kinship carers have a right to a role in legal proceedings where there is potential that they could become a kinship carer; the family justice system should recognise kinship carers in public and private care proceedings and seek to involve kinship carers and children in an accessible way, where appropriate, and consider how orders made in private family law could impact negatively on the resultant support available to carers and their children.

We would like to see colleagues in the family court demonstrate curiosity and take steps during private proceedings to ensure any kinship carers pursuing orders through private law proceedings are aware of their options and understand the implications involved. We would also like to see the Law Commission examine the private vs public route distinction and the impact this has on the experiences and resultant support and outcomes for kinship families in its welcome forthcoming review of the legal framework for kinship care.