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Guarding Special Guardianship: the need for legal aid reform

Jessica Johnston, Legal Adviser with Family Rights Group, explains a major challenge to prospective special guardians and how it might be overcome.















Jessica Johnston, Legal Adviser, Family Rights Group

There are more than 180,000 children in the UK being raised by kinship carers – relatives or friends who have stepped in, often in an emergency. Kinship carers are often grandparents, but also aunts, uncles, brothers, sisters, and family friends. Many more children are raised in kinship care than are in the care system or adopted, yet support for kinship families is variable and often very limited. A significant number of kinship carers are, or become, special guardians, raising a child from their family or friends' network under a special guardianship order until the child reaches adulthood. While the legal order ends when a child turns 18, a special guardian's love and commitment are enduring.

One of the key difficulties that relatives and friends face when they are looking to take on the care of a child, is a lack of access to legal advice and representation. They are often being asked to care for a child against the backdrop of children's services having commenced public law care proceedings. Others have been encouraged by children's services to bring private law proceedings themselves by applying for a special guardianship order which effectively avoiding the need for children's services to begin care proceedings. In each of these scenarios, relatives and friends are being asked to step in to avoid a child from remaining in, or entering into, the care system. Yet these (potential) carers are often then left having to navigate the family justice system, understand their rights and options, and make huge decisions for their family without access to free, independent legal advice.

This article highlights the challenges prospective special guardians face when unrepresented, and how relatively small changes by government could make the world of difference to many families.

A parliamentary milestone for kinship care

From 2018, a cross-party group of parliamentarians were supported by Family Rights Group to establish the Parliamentary Taskforce on Kinship Care.  Operating between 2018 and 2021, the Taskforce aimed to raise awareness about, and support for, children in kinship care, and to highlight this option for children who cannot live with their parents. With legal and policy secretariat provided by Family Rights Group, the Taskforce's inquiry took extensive evidence from kinship carers, as well as children raised in kinship care. And in September 2020, the Taskforce published its report First Thought: Not Afterthought.

The report presented the Taskforce's key findings and set out recommendations for national government, local government, and other agencies, to deliver a vision for kinship care.  In doing so, it reflected on the legal and practice framework relevant to kinship care and presented the Taskforce's key findings. The findings included that legal aid for prospective special guardians is extremely limited post-LASPO1  with many kinship carers finding themselves having to navigate the assessment and Family Court processes without any early or ongoing legal advice and representation:

'The key point made repeatedly to the Taskforce was that had these carers had access to legal advice before the orders were made, they would have been able to weigh up the pros and cons of all types of order and related support…Without legal advice, many carers simply do not understand the legal ramifications of the order that they are entering into and so cannot make the best decision for the child and their family.'

The type of legal order that a kinship carer has will have long term ramifications for the child and the family, including the support they can access. Limited access to legal advice can have a significant, lasting impact – for example, 30 per cent of kinship care respondents to a September 2019 survey by Family Rights Group concluded the child was not subject to the right type of final legal order. Even where respondents felt the right order was in place, many had concerns about the type and level of support that they and the child were receiving under the order.

The Taskforce has been succeeded by the All-Party Parliamentary Group (APPG) on Kinship Care, set up in March 2021, which is taking forward the Taskforce recommendations. The APPG is led by Andrew Gwynne MP, himself a special guardian with experience of the emotional, practical and financial challenges of becoming a kinship carer. One of the key recommendations the APPG is now working to take forward and which is relevant to the challenges prospective special guardians without legal advice and representation is:

'That the Ministry of Justice should fulfil their pledge to extend the scope of legal aid to prospective special guardians.' 3

A promise unfulfilled

In early 2019, Legal Support: The Way Ahead was published by the Ministry of Justice. Described as an action plan to deliver better support to people experiencing legal problems, this set out ambitious aims to make changes across the legal aid system, including in relation to family law.

It included some good news for special guardianship – a proposed extension of means and merits-tested legal aid for prospective special guardians.4  The proposed reform would allow those prospective kinship carers who have been positively assessed by children's services to have legal advice and representation when seeking to secure a special guardianship order in private law proceedings. This was a significant step. But nearly three years on progress has stalled. This, and most of the other proposed legal aid changes, are yet to come into force.

As significant government focus and resource pivoted to dealing with Brexit and thereafter to responding to the Covid-19 pandemic, the need for prospective special guardians to understand their legal rights and options continues to be forgotten. And so it is that many prospective special guardians still do not have access to any free, independent legal advice when they are being asked by children's services to take on the permanent care of a child. Whilst advice can be sought from services such as Family Rights Group's advice service5 , this should not be a substitute for a legal aid regime which caters to prospective kinship carers, and enables them to be represented in court proceedings.

The need to go further

The commitment to extend legal aid in private law proceedings for prospective special guardians, though welcome, has not been matched with a recognition of the many special guardianship orders pursued and made in public law children's proceedings. The majority of special guardianship orders are made within the context of care proceedings, rather than within private law proceedings. To have real impact for kinship families, it is crucial that any changes to the legal aid regime for prospective special guardians also apply within public children law.

Private law proceedings in which applications for special guardianship orders are made are often pursued with the encouragement and support of children's services. With children's services providing the assessments, the process can feel akin to care proceedings. It is incongruous not to ensure parallel provision in terms of legal aid where the special guardianship order follows the commencement of public law proceedings. This is especially so following the case of P-S (Children) [2018] EWCA Civ 1407. In this case, the Court of Appeal made clear that when a special guardianship order is being considered within care proceedings, a formal application for that order should usually be made (see paragraph 56 of the judgment). Prospective kinship carers who have not had any access to legal advice cannot be expected to know that this should be done. The Court of Appeal recognised this, and further stressed the importance of these relatives and friends having proper access to legal advice and representation.

Children's services' provision of funding for kinship carers

At present, children's services departments will usually pay for a prospective special guardian who has been positively assessed to have legal advice. Such funding is typically limited to about two hours' work at legal aid rates6,  or up to a total of £250 plus VAT. This funding is offered to help ensure that the prospective kinship carer understands the nature of the proposed order, to advise on the proposed support plan and recommendations for contact. However, such funding is not on offer to those with a negative assessment, who may wish to challenge that assessment. As Jerry Bull, Head of Care and Publicly Funded Team at Atkins Hope solicitors explains, such limited funding does not cover what is really needed and does not plug the legal aid funding gap:

"The reality is that such fees do not really allow for sufficient time for the lawyer to assess the court documents disclosed and local authorities rely on a considerable amount of good will from solicitors in providing this advice at these rates.

In addition, children's services do not provide funding for those who are about to be assessed to ensure that they understand the purpose of the assessment and why they are being asked to be a possible long-term carer. A significant number of those assessed 'fail' the assessment because it is said that they do not understand the seriousness of the issues. If they had access to legal advice before being assessed, then it could well help prospective carers make more informed decisions about whether they can potentially offer the child a home, what support they may need to do that and for some, whether they want to be assessed at all. This would save time and money." 

Will provision of means-tested legal aid really help?

The Taskforce heard that many kinship carers struggle financially when they take on the care of a child. Older carers, including grandparents, are often on a limited income. But many will have some savings, such as a small pension. This does not of course mean that they have access to the potentially significant funds necessary to instruct a solicitor to advise and represent them on a private basis. But it may well mean that they are not eligible for legal aid. Means testing this group would therefore still leave a great many without access to legal aid.

Where proceedings are contested, legal costs can be significant.  Evidence gathered by the Taskforce identified that special guardians spend an average of £5,446 on legal fees to secure a legal order but with the range of expenditure spanning from just under £100 up to more than £50,000. Most will either represent themselves (putting themselves at a serious disadvantage to the other parties who will all be legally represented). Or more worryingly, and probably more commonly, not fight at all as they cannot face a contested court hearing on their own. This risks children not having 'all the realistic options' properly litigated and some children ending up in the care system in unrelated care, when this may not have been necessary.

Provision of non-means but merit-tested legal aid for prospective kinship carers would ensure that all carers who are assessed as a realistic option for the child would be able to receive legal aid when being asked by children's services to step in to care for the child. 

The bigger picture

Those working within the child welfare and family justice sectors know that pressure on children's services and the Family Court has never been greater. The average time for care proceedings to conclude is currently 44 weeks7  – the highest since 2012, and far beyond the 26-week time limit. Factors that may lead to justifiable extensions to the 26-week time, even pre-pandemic, include where a realistic alternative carer emerges late in the day.  If the system is looking to reduce further any unnecessary delays to care proceedings, a good place to start is by ensuring that anyone being considered as a potential special guardian has access to early legal advice to help them understand what this will entail, and what the child's needs are. If prospective carers have access to the right advice, at an early stage, the common scenario of a relative coming forward late in the day, which can often extend the length of care proceedings, is more likely to be avoided.

Law Society of England and Wales president, Stephanie Boyce, said:

"In February 2019 the government recognised that legal aid should be made available to support clients involved in cases related to Special Guardianship Orders and committed to address this.

Access to legal aid in these cases, to ensure all involved receive advice and representation, is vital for the long-term wellbeing of the children involved. It is disappointing that since then there has been no further progress on introducing legal aid in these cases.

Not only are the proposed changes necessary and overdue, but we are at a point where care proceedings are taking longer and longer.

There are considerable backlogs in the family courts. In May 2021, there were 20,886 outstanding public family law cases and 81,224 outstanding private family law cases. If kinship carers were able to access legal advice and representation, this would help to ease some of the strain and avoid the scenario of an unrepresented carer arising late in the day."

Concrete proposals, and a call for support

Together with colleagues from the Law Society, the Association of Lawyers for Children, Resolution and other key stakeholders, Family Rights Group has prepared a briefing which details specific changes to ensure prospective special guardians have adequate access to justice. This includes extending legal advice for special guardians to cover: early advice, including during the pre-proceedings stage, and equivalent access to legal aid in both public and private law proceedings concerning children.

We would encourage children lawyers to consider this briefing, and to support work to push for these necessary changes to be implemented, including supporting the APPG on Kinship Care. As expressed by Andrew Gwynne MP:

"Families shouldn't have to navigate a complex legal system alone when they are seeking to provide a safe and loving home for children. It's crucial that families can make informed decisions on what is best for the child's future. Let's not forget, they are stepping in to care for children who would likely otherwise be in the care system and we should be making that as easy and as fair as possible. We are doing kinship carers a disservice by not ensuring they have this crucial support. All kinship carers, including those looking to become special guardians, need access to legal advice and representation from the outset."

At a time when sector reviews and reports, including those from the President's Public Law Working Group, are highlighting the importance of partnership working, we surely cannot continue with a system which does not allow for potential kinship carers to be supported to make informed decisions. These are relatives and friends doing the right thing by children who they love, and in doing so save the public purse the cost of another child entering the care system with unrelated carers. But they should not do so in a vacuum of information, without knowing what challenge they can make if they are unhappy with proposed support, or without representation in what are likely to be difficult and contested Family Court proceedings.

For further information, including on how to become involved with the APPG on kinship care, please contact Jessica Johnston, Legal Adviser at Family Rights Group – jjohnston@frg.org.uk and Jordan Hall, Public Affairs Officer at Family Rights Group – jhall@frg.org.uk

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1 Under the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), virtually all private family law issues were removed from the scope of legal aid. There are limited exceptions to this, including where the applicant for legal aid has evidence of either domestic abuse, or child abuse by the person who will be the respondent in the case. This 'gateway evidence' will bring the case back into scope for legal aid. However, the applicant for legal aid still then needs to pass a means test and a merits test. Where a kinship carer or prospective kinship carer is seeking a special guardianship order in private law proceedings, they must be able to provide such gateway evidence in order to secure legal aid.

2 The highs and lows of kinship care:  analysis of a comprehensive survey of kinship carers 2019

3 See page 81 - 'First Thought Not Afterthought First Thought Not Afterthought: Report of the Parliamentary Taskforce on Kinship Care'

4 Within a means test, the legal aid applicant's capital and income must be below a certain threshold. The merits test assesses the strengths and weaknesses of the legal aid applicant's case, and considers whether a reasonable person who could afford to pay their own legal fees would use their own money to pay for the case.

5 Family Rights Group runs a free, independent and confidential advice service, which includes:

For more information, click here.

6 The legal aid hourly rate for this type of work is £52.57 for solicitors based outside of London and £55.24 within London

7 Family Court Statistics Quarterly: April to June 2021