Kinship carers do not have access to the legal advice and representation they need despite councils’ efforts to plug gaps in legal aid provision, according to a new report from the All-Party Parliamentary Group (APPG) on Kinship Care.
Kinship carers are family or friends who step in – often in an emergency – to raise children who cannot stay at home.
In a report, Lost in the Legal Labyrinth, the APPG said it had heard from kinship carers that the legal aid means test was a barrier to many carers accessing legal aid due to the Legal Aid Agency’s very low income and capital thresholds. It argued that removing the means test for (prospective) kinship carers would assist family and friends to get the legal advice they need to obtain the best outcome for the child.
The APPG added that local authorities were plugging gaps in legal aid provision from already stretched local government funding. But it said the approach taken to legal support was “inconsistent across local authorities and is insufficient to provide the advice and representation kinship carers need.
“The sums are normally so limited that many solicitor firms will not take on this work, and amongst those that do, many are either limited in the work they can undertake or top up advice on a pro bono basis in a bid to meet carers’ needs.”
The APPG later added: “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.”
Furthermore, the report found that 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.
It said: “A lack of information and understanding can be a reason that otherwise suitable prospective kinship carers receive a negative assessment by the local authority. Uninformed and unsupported carers can feel overwhelmed and drop out of the process altogether, or emerge late in the day when the likelihood of a child being removed into the care system is greater.”
The APPG’s inquiry found that some prospective kinship carers were unrepresented in key court proceedings, with almost a third of respondents to a Family Rights Group survey reporting they had represented themselves at least for some of the time.
The APPG also said:
- 82% 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%) were satisfied with their current legal arrangement for the child. 35% 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%) 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%) had paid for some or all of the costs themselves. Only 16% had received part or full payment through legal aid. 56% 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%) had to represent themselves at least for some of the time. 32% were legally represented by a solicitor or barrister throughout those proceedings and 59% had legal representation for at least some of the proceedings.
- Where kinship carers were represented by a solicitor or barrister, almost a third (28%) of respondents paid some contribution towards the cost of legal representation, including those reliant on family and friends to help. 40% indicated their costs were covered in full by the local authority and a further 6% covered in part. Only 19% qualified for legal aid for all of the costs and for a further 10% 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%) of kinship carers surveyed had made personal contributions to the costs of legal advice, court fees and legal representation. Of those carers: 47% had costs up to £1000; 27% between £1001 and £5000; 16% between £5001 and £10,000; and 9% in excess of £10,000.
- Nearly three quarters (72%) of kinship carers said that becoming a kinship carer had caused them financial hardship. Four in five carers had to either give up work (52%) or reduce their hours (29%)
The APPG made a series of recommendations including that:
- Kinship care – and the different types of arrangements the term encompasses – should be clearly defined in primary legislation.
- There should be adequate funding for not-for-profit independent legal advice, information services and advocacy services specialising in child welfare and family court law and practice.
- Following a potential kinship carer having a positive initial/viability family and friends care assessment by children’s services, non-means and non-merits tested ‘legal help’ advice should be made available to support carers through the full assessment process.
- To mirror a commitment made in respect of private law, the scope of legal aid should be extended to prospective kinship carers in public law cases where a special guardianship order is being considered. “We would also press for this to be non-means tested.” Consideration should also be given to 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.
- Where a prospective carer has received a negative initial assessment, non-means tested legal help would assist them in understanding whether they have cause to challenge an inadequate assessment process. If they do have cause, non-means but merit tested legal aid should be available.
- Consideration should be given to updating the 2011 Statutory Guidance for Local Authorities on Family and Friends Care, including making explicit the expectations on local authorities to: a) provide information and support kinship carers or potential kinship carers regarding accessing independent legal advice or representation; b) ensure they are transparent as to when the local authority funds legal advice and representation for carers who can’t access legal aid.
- 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 policies set out clearly the criteria they apply when deciding whether to fund potential kinship carers to get initial independent legal advice and any subsequent legal advice and representation or help with court costs, if they cannot access legal aid.
- Monitoring of the family justice system’s approach to kinship care, including better data collection and knowledge sharing, should be improved.