Updates to Legal Aid for Child Cases

On the 10^th of February 2023, the Ministry of Justice changed the law on legal aid for child cases. The changes cover looked-after children with special educational needs. The changes come as a result of a campaign from public law campaigners. The campaign was backed by the help of the Law Society. The purpose was to aid a venerable child in overcoming a hurdle in challenging the Legal Aid Agency. As a result of the changes, it is hoped that foster carers will be able to access legal aid easier.

Updates to Legal Aid for Child Cases – Removal of Means Assessed

The case involves the Legal Aid Agency refusing to grant the child legal aid. The legal aid was for her special educational needs and disability (SEND) tribunal appeal. Additionally, the infant-school-aged child was partly under the local authority. The refusal was on means grounds, stating that the finances of her prospective adoptive parents should be assessed.

During a SEND tribunal, any appeals are brought in the name of the parent or carer. Therefore, the appeals are not in the name of the child. The child argued that the prospective adopter’s role should be categorised as akin to that of a litigation friend. Therefore, this would be for legal aid purposes. Therefore, the adopter’s role would mean their means are not relevant.

The High Court granted Public Law Project permission to challenge the agency’s refusal. However, as PLP explained, getting to the High Court was difficult.

Ministry of Justice Introduces New Law

As of the 10^th of February, the PLP announced the Ministry of Justice has updated its law. Therefore, foster parents and approved prospective adopted parents bringing SEND appeals on behalf of a looked-after child will not be means assessed.

PLP said that the case was only possible thanks to the support of the Law Society. The Law Society provided indemnity against adverse costs.

Comments from Legal Specialists on the Updates to Legal Aid for Child Cases

Emma Vincent Miller, who represented the child said: “Children with special educational needs sometimes need to challenge decisions that relate to how their needs are met by their local authority and school. Such appeals are heard in the SEND Tribunal, where legal aid can only be accessed via the Exceptional Case Funding scheme.”

“These new regulations mean that the foster carers or prospective adoptive parents of children will no longer need to be means tested to access that legal aid. Unfortunately, there remains significant access to justice issues. Many parents and carers of children who do not fall into these categories will not satisfy the strict legal aid means rules but will still be unable to afford to pay for a lawyer privately.”

Oliver Persey, another representative of the child. He recently welcomed the news that more children with special educational needs will be able to access legal aid. However, finding an education solicitor in some parts of the country remains difficult.

“A lack of education solicitors means most of the country will, in practice, struggle to see a lawyer. This shortage must be addressed by the Ministry of Justice to ensure access to justice for disabled children and their families,” Persey said.

Making it Easier for Foster Carers to Access Legal Aid

Furthermore, a spokesperson for the Ministry of Justice said: “Children with special education needs deserve the right support which is why we’ve made it easier for foster carers and prospective adoptive parents to access legal aid. The Legal Aid Agency continually monitors the market to ensure services are available nationwide. Our comprehensive review of the civil legal aid system will help deliver sustainable support well into the future.”

Additionally, a Law Society spokesperson added: “This is an important addition to the strategic litigation work the Law Society has been supporting to expand legal aid and ensure people can access justice.”

“However, increasing legal aid can only be effective. This is if there are legal aid lawyers available to advise and represent those in need. The government must urgently commit to immediate investment to ensure solicitors can continue to do this vital work whilst the Civil Legal Aid Review takes place.”

How Our Solicitors Can Help

Cases involving children require a careful and considered approach to achieve the best outcome. Cartwright King’s solicitors have a wealth of experience in taking on child cases.

Call us today to discuss your case in further detail, and a member of our friendly team will put you through to one of our specialists.