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The scope of family legal aid is increasing

The scope of family legal aid is being extended to include special guardianship orders for both those with parental responsibilities and prospective guardians.

The Ministry of Justice has announced £6 million of support for up to 2,000 people applying for the court-imposed order.

These changes came into effect from 1st May 2023 and will see the extension of financial support to some of those undertaking private family law cases.

What is a special guardianship order? Who does it concern?

A special guardianship order is a court-imposed order, effective until the child in question turns 18.

Typically, it is pursued by grandparents to ensure that care proceedings do not isolate the child or prohibit contact, in cases where the parents are deemed unsuitable.

It may, however, be submitted by any member of the extended family, as well as friends, or foster parents. If granted, the individual then assumes parental responsibility for the child, and is required to provide a stable and secure placement for them.

How has it changed?

Legal aid was previously available for cases where the local authority was involved, seeking to remove a child by applying to the court.

Special guardians were not entitled to this and had to cover legal costs independently. With this new development, applicants can now access legal aid funding for advice and representation and, likewise, parents opposing such an order are also entitled to legal representation, free of charge.

What does this mean?

Those who are eligible under the new provisions, are granted free representation, thus meaning that special guardianship orders become more accessible.

This may reduce the number of children that are placed in care and instead offer to them, a longer-term solution with an individual they are close to. In addition to providing support for those who wish to assume responsibility for a child, the scope of legal aid is also extended to parents, providing them with an opportunity to oppose such an order, which they may not have been able to do otherwise. This is, however, subject to eligibility.

The ’justice gap’ and its impact

The threshold for legal aid is calculated on a means-tested basis and as such, not everyone applying for a special guardianship order will be eligible for waived legal fees. This is due to the nature of means-testing which considers all financial circumstances, including assets.

The Law Society have expressed concern regarding grandparents, who may be excluded from this extension due to capital from their home, which may overshadow a lower pension income.

Grandparents are therefore likely to fall victim to this ‘justice gap’ as their current circumstances may be overlooked by the system, meaning that funding such proceedings may still need to be from their own pockets.

This may, understandably, cause confusion or difficulties for those seeking to pursue a special guardianship order.

Do you still need a solicitor?

If you have any uncertainties or queries relating to these new changes, you should always seek legal advice and support for clarity. These are often challenging and emotive proceedings and should be resolved with correct advice and guidance to ensure the best possible outcome.

If you would like to discuss your personal situation and how these changes could affect you, please do get in touch with our expert and friendly Family & Children team here at Fosters Solicitors on 01603 620508 or by email.

For more information about the full range of services our Family Law team can provide, please visit our service pages.