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Kinship care undermined by failure of support in family justice system, finds APPG report

The All-Party Parliamentary Group (APPG) on Kinship Care has published a new report – 'Lost in the Legal Labyrinth' – which has found that the family justice system fails to support kinship care sufficiently and instead undermines the principle of the state working in partnership with children and their families.

The inquiry received evidence from hundreds of kinship carers across England and Wales, including at an oral evidence session and in a national survey carried out by Family Rights Group, the APPG's secretariat. The APPG also considered an analysis of calls from kinship carers to Family Rights Group's advice line, and heard from legal practitioners and legal organisations working in children and family law.

Kinship carers told the inquiry:

• 82 per cent of kinship carers surveyed did not feel they knew enough about their legal options to make an informed decision about the best options for their kinship child.

• Fewer than half of respondents (48 per cent) were satisfied with their current legal arrangement for the child. 35 per cent said they were not satisfied and this mostly related to the support they were able to access under the current arrangements.

• Nearly 4 in 10 (38 per cent) of the kinship carers surveyed had not received any legal advice about their rights and options for their kinship child.

• Where carers had received legal advice, a quarter (25 per cent) had paid for some or all of the costs themselves. Only 16 per cent had received part or full payment through legal aid. 56 per cent had received part or full payment by the local authority but the scope of such provision is limited.

• For those who had experience of court proceedings in relation to their kinship children, almost a third (30 per cent) had to represent themselves at least for some of the time. 32 per cent were legally represented by a solicitor or barrister throughout those proceedings and 59 per cent had legal representation for at least some of the proceedings.

• Where kinship carers were represented by a solicitor or barrister, almost a third (28 per cent) of respondents paid some contribution towards the cost of legal representation, including those reliant on family and friends to help. 40 per cent indicated their costs were covered in full by the local authority and a further 6 per cent covered in part. Only 19 per cent qualified for legal aid for all of the costs and for a further 10 per cent legal aid only covered part of the costs.

• Many carers indicated they were not party to proceedings which meant they were side-lined in the important decisions being made by the court about the children they had stepped forward to raise. It also means they did not qualify for legal aid in care proceedings.

• Over a third (37 per cent) of kinship carers surveyed had made personal contributions to the costs of legal advice, court fees and legal representation. Of those carers: 47 per cent had costs up to £1000; 27 per cent between £1001 and £5000; 16 per cent between £5001 and £10,000; and 9 per cent in excess of £10,000.

• Nearly three quarters (72 per cent) of kinship carers said that becoming a kinship carer had caused them financial hardship. 4 in 5 carers had to either give up work (52 per cent) or reduce their hours (29 per cent).

The inquiry found:

A broken system: The child welfare and family justice system does not sufficiently support relatives and friends to step in to prevent children needing to enter the care system and be cared for by strangers. In doing so, the principle of the state working in partnership with children and their families is undermined.

Un-informed decisions: Without legal advice, many kinship carers are not in a position to make informed decisions regarding the best kinship care arrangement for them and the child they are/will be raising.

Barriers to legal advice and representation: Kinship carers face significant challenges in accessing publicly funded legal advice and representation. Some of these challenges stem from the strict parameters of the legal aid regime including the means test. Others result from practical barriers, such as kinship carers not being made a party to care proceedings or the availability of solicitors who are willing and able to take on their case because of the limited funding available.

Importance of early advice: The inquiry heard the importance to kinship carers of being clearly informed from the outset, for them to be able to understand the situation facing the family including the severity of the concerns and to be able to make a more informed decision about whether to step forward to offer to care for the child.

Means testing: The inquiry heard that the legal aid means test is a barrier to many carers accessing legal aid due to the Legal Aid Agency's very low income and capital thresholds. Many carers with far from comfortable living standards, including those living below the Joseph Rowntree Minimum Income Standards, are excluded.

Local authority provision: Local authorities are plugging gaps in legal aid provision from already stretched local government funding. However, the approach taken to legal support is inconsistent across local authorities and is insufficient to provide the advice and representation kinship carers need.

Family Rights Group's advice service: This service has a crucial role to play for families right along the child welfare continuum, but specifically at the early stages of state involvement children and families. In supporting prospective carers to understand their rights and options and to effectively participate in decision making, it helps secure the right outcome for the child and leads to savings for the taxpayer from the costlier interventions avoided. Yet, the advice service which is part-funded through a contract with the Department for Education, is overwhelmed with calls.

Support packages: While entitlement to support for the child and the carer is largely dependent on the type of kinship arrangement the carer has, the extent of support and access to discretionary help from the local authority is significantly influenced by the negotiations that take place.

Assessments: Kinship carers can struggle to gain a clear understanding of local authority assessment processes or know what is being asked of them or what they should be able to expect from children's services and the family court. A lack of information and understanding can be a reason that otherwise suitable prospective kinship carers receive a negative assessment by the local authority.

Recommendations to improve the provision of kinship care include:

• For kinship care and the different types of arrangement the term encompasses to be clearly defined in primary legislation. It is time to define kinship care

• Adequate funding for not-for-profit independent legal advice, information services and advocacy services specialising in child welfare and family court law and practice

• Non-means tested early advice should be available under legal help to kinship carers and prospective kinship carers

• For the Ministry of Justice to fulfil their commitment to expand the scope of legal aid for prospective special guardians in private law and to mirror the provision in public law, and for legal aid to be non-means tested

• For the Ministry to consider extending this further to include all kinship carers who are considering taking on (or who have taken on) the care of a child where there is court, local authority or practitioner evidence which has determined that the child cannot live with their parents

• Non-means but merit tested legal aid for kinship carers who have a case to challenge inadequate assessments

• Local authorities should review their family and friends care policies to: signpost where kinship carers or potential carers can get free specialist independent legal advice; and ensure they set out clearly local criteria for funding legal support (including legal advice, court fees and representation).

For the full report, click here.

22/5/22