When are Parents eligible for Legal Aid in Children Act cases?

In recent months, many parents have found themselves in a position where they have been denied legal aid.

In the recent case of D (A Child) [2014] EWFC 39, Sir James Munby, the President of the Family Division said that there are only certain proceedings where parents can be entitled to non-means tested legal aid. He highlighted that even if a parent has severe learning difficulties and needs a higher standard of legal representation, such as a “litigation friend” they would not be eligible for legal aid.

Non-Means tested legal aid is when the Legal Aid Agency does not take into account the monthly disposable income or disposable capital income, such as savings, valuable items and the value of a home, if it is owned.  Means tested legal aid is when the legal Aid Agency takes into account the disposable monthly income and any disposable capital income. The Legal Aid Agency have set a capital limit, meaning that if  a person has savings more than £8,000 they will not be eligible for legal aid, or if the disposable monthly income is over £733, then they will not be eligible for legal aid either.

Sir James Munby said that parents can be entitled to non-means tested legal aid only when the Local Authority issue care proceedings for a child/children to be placed under a Emergency Protection Order, Care Order or a Supervision Order.

A Care Order is an Order where the Local Authority share Parental Responsibility with the parents and the Local Authority can make decisions as to where the child lives and who they have contact with.

A Supervision Order, is an Order where the Local Authority do not share Parental Responsibility with the parents, so they cannot make decisions about a child. However, the Local Authority acts as a supervisor in checking that the needs of the child are being met and safe guarded by the parents/carers.

An Emergency Protection Order is an Order which can be obtained by the Local Authority for immediate removal of the child for the short term to ensure the child’s safety, and the Local Authority will be granted Parental Responsibility under this Order.

However, if the parents apply for the discharge of a Care Order or a  Supervision Order, or if the Local Authority make an application for a Placement Order(an order which authorises the Local Authority to place a child for adoption after the parents’ consent has been dispensed with) or a Recovery Order (an order which authorises the removal of the child by the Police/Local Authority if for example the person/parent who is caring for the child refuses to comply with court order made), some parents are finding themselves in a position where they are not eligible for legal aid  because legal aid for these applications are means tested.

In the case of D(A Child), the parents to D (the child) had severe learning difficulties. The father’s learning difficulties were so severe so that he was seen as a “protected party”, and for him to have a fair trial, he could not take part in the ongoing legal proceedings about his child without a “litigation friend”. A litigation friend is someone who acts for an individual because they have no other suitable person willing or able to act on their behalf and also because they lack capacity within meaning of the Mental Capacity Act 2005 to represent themselves in legal proceedings.  Sir James Munby found it a “disturbing fact” and “unthinkable” that these parents were denied legal aid even though they had learning difficulties and the father required a litigation friend.

In this case, the parents had their 2 year old son living with them under a Care Order. The Local Authority shared Parental Responsibility with the parents throughout this time; however in March 2014 the Local Authority changed their mind about where the child should live and who should care for the child. The Local Authority had to give the parents 7 days notice before they removed the child from their care. The parents made an application to discharge the existing Care Order as well as making an application for an Injunction (an order stopping the Local Authority from removing the child from them), but both of these applications were refused.  The child was removed from the parents’ care at the end of April 2014, after another Judge made a Recovery Order. Throughout this ordeal, the parents were not granted legal aid, as their income was above the limit to qualify for legal aid.

The case went to Sir James Munby  at the Royal Courts of Justice and he said that the parents were placed in an “impossible predicament” because they were refused legal aid and did not have the money to fund their legal representation. He went on to say that if he let these proceedings regarding their child continue without the parents being granted some funds towards their legal representation it would be  “a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.” Article 6 of the Human Rights Act 1998, is a right to a fair trial, and Article 8 is a right to respect for private and family life.

This case was deemed especially serious by Sir James Munby, felt so strongly about this case not only because a  child was being permanently removed from his parents care and placed for adoption but also the parents had learning difficulties, therefore they should have had a higher standard of legal representation. There was a glimmer of hope for the father in this case, when the Official Solicitor agreed to act as his litigation friend only because the father’s solicitor and barrister agreed to represent him pro bono (free of charge).

In his judgement, Sir James Munby ordered that at the next hearing he wanted the legal aid issues to be resolved.  If it was still an outstanding issue then he would decide whether or not the parents legal fees would be paid by either the Local Authority as they issued the adoption application, the Legal Aid Agency or Her Majesty’s Court and Tribunals Service on the basis the court has to take into account the parent’s Human Rights.

After the judgement, the Legal Aid Agency reassessed the father’s income and he was given legal aid, however it was limited to only cover the cost of court hearings and the father was required to pay a contribution towards his legal aid costs. Sir James Munby has stated that he is still “concerned” that the issue of legal aid has not been “resolved”. The next hearing has been listed for the 13th November 2014.

If the Local Authority have made an application for any of the Orders mentioned above or if you want to seek advice on discharging an existing Care/Supervision Order then please contact a member of our care department who will be able to assist you on 0116 255 4855.