Extending Legal Aid to Special Guardianship Orders
A Special Guardianship Order (SGO) is an Order which provides the named person(s) to become the child’s Special Guardian in law. Normally relatives such as Grandparents, siblings, Aunts or Uncles, and family friends make such applications to the Court when the child(ren) in question are not able, or it is no longer suitable for the child(ren) to live with their birth parents. Special Guardians have full responsibility of the child(ren) until they are 18 years old which means that they will be able to make all day-to-day decisions about the child, for example schooling and medical treatment, without having to discuss such with the child(ren) birth parents. Special Guardian’s have elevated Parental Responsibility which means they can have the final say when a decision needs to be made in relation to a child to whom they are Special Guardian to.
Previously in private family proceedings, Applicant’s and Respondent’s to SGO’s were unable to apply for Legal Aid funding unless there was evidence to show that they had been a victim of domestic abuse at the hands of one of the child’s parents. This significantly limited the number of Applicant’s who qualified for legal aid which left many parents and potential Guardians to navigate the complex legal system alone without adequate legal advice.
However, since 1st May 2023, there has been some significant changes to the Civil Legal Aid rules in order that funding is more accessible. Under the new rules, both Applicant’s and Respondent’s to SGO’s will be eligible to apply for Legal Aid, subject to the means and merits assessment. The ‘All-Party Parliamentary Group on Kinship Care’ have long argued that the previous legal aid rules undermined SGO’s and their effect because of the strict requirements set. Therefore, these changes are much welcomed as it will hopefully remove the hurdle of costs and ultimately help many families and children.
Although, President Nick Emmerson of Law Society of England and Wales has already highlighted a justice gap which this change does not resolve as he states that ‘unfortunately these changes do not go far enough’. The Law Society argues that many Grandparents will not qualify for legal aid as they will fail the means assessment due to the capital they have in their home’s. The Law Society, therefore, argues that Legal Aid for Special Guardian’s should be non-means tested in order that everyone has access to justice
If you do require any further advice regarding Special Guardianship Orders and/or would like to discuss your eligibility for Legal Aid funding in relation to Special Guardianship Orders, then please contact our specialist family team on 01484 821500 or fill out an online contact form.