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Parents should have legal aid to fight care proceedings, says Bar Council

Chairman of Bar Council urges Minister to drop means-testing

Parents facing the prospect of having their children taken away from them should have legal aid to fight their case, the Bar Council has said.

In a letter to Shailesh Vara MP, the Parliamentary Under-Secretary of State at the Ministry of Justice with responsibility for the Courts and Legal Aid, Bar Council chairman, Nicholas Lavender QC, has called for urgent reform of the regulations which currently require parents to go through means-testing in order to secure funding to challenge local authorities who are seeking to remove their children. The Bar Council says funding should be automatic in care order proceedings when parents need to challenge the State's power to take their children away from the family home. Without this change, parents may have no choice but to represent themselves.

The Bar Council's warning comes after the President of the Family Division, Sir James Munby, in D (A Child) [2014] EWFC 39, pointed to the "stark, indeed shocking" predicament faced by two parents with learning difficulties who missed out on getting legal aid support to challenge the removal of their child from the family home because the father's disposable monthly income was £34.64 over the means-tested limit.

Nicholas Lavender QC, chairman of the Bar Council, said:

"I doubt that when the regulations were designed they were intended to deny families the chance to fight to keep their children. However, now that this worrying situation has come to light it is essential that means-testing is removed for families faced with the nightmare scenario of losing their children. Any parent should have the right to challenge such a decision and to try to keep their family together. The current risk is that a child who does not actually need to be removed from the home environment is separated from his or her parents and put into care purely because his or her parents do not qualify for legal aid and are unable to present their case effectively by themselves.

"Families being unable to challenge attempts made by a local authority or any other State agency to break up the family is not something you expect to see in a civilised society, but that is a consequence of the current rules, even if it is not what was intended. Action must be taken swiftly to prevent it happening."

Under current rules, children can remain at home under a care order where the evidence would not support permanent removal from home but raises sufficient concern to require that the local authority share parental responsibility. However, if the local authority subsequently takes the view that the child should no longer remain at home, parents can get legal aid to challenge that decision only if their gross monthly income is £2657 or less; their monthly disposable income is £733 or less and their disposable capital is £8000 or less, even though the State is seeking to remove the child.

The Bar Council has called for the speedy reform of Regulation 5 of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, SI 2013/480 to close this funding trap for families.