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Legal aid for section 51 applications – contact post adoption

Forgive me for this, because it is going to be dryer than eating a packet of Jacob’s Cream Crackers in the Gobi desert, but it is potentially important, and might save someone else an hour of slogging through law to find the answer.

 

“Can you, or your clients,  get legal aid to help you make an application for post adoption contact, when the section 51 provisions come into force?”

 

 

If you haven’t read the preceding blog, none of this s51 stuff will make any sense, so you might want to do that first.

 

There’s a bit tucked away in the Children and Families Act 2014, that specifies that there are some changes to the Legal Aid, Sentencing and Punishment of Offenders Act  2012  (LASPO).

 

Why does that matter? Well, because LASPO is what decides whether a person can get legal aid to make their application 

 

[It also probably has the unique distinction of being a piece of legislation that every English lawyer can agree about hating. Usually, even if an Act comes in that is stupid and frustrating, say the “Hairdryers – Prohibition against making them out of Ice Act 2009”  you can find a couple of lawyers who made some money out of training on it, or suing someone for breaching the Act, or defending someone accused of breaching it.  This one, everyone hates. And you can’t even think – well, I’m diametrically opposed to everything that LASPO stands for, but I can still admire it as a beautifully crafted and mechanically sound piece of drafting. It isn’t that, either]

 

This is what s9 (12) of Children and Families Act 2014 says:-

 

 

(12) In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (civil legal services)—

(a) in paragraph 12(9) (victims of domestic violence and family matters), in

the definition of “family enactment” after paragraph (o) insert—

“(p) section 51A of the Adoption and Children Act

2002 (post-adoption contact orders).”, and

(b) in paragraph 13(1) (protection of children and family matters) after

paragraph (f) insert—

“(g) orders under section 51A of the Adoption and Children Act 2002 (post-adoption contact).”

 

[The Children and Families Act 2014 is no Mona Lisa of the drafting world, either, to be frank]

 

Which brings the potential that section 51 applications MIGHT be eligible for legal aid.

 

Under LASPO, there are two distinct categories

 

1)     Cases which are within scope, and will be funded if there is means and merits to the application, but are the SORT of cases that in principle that legal aid can be given for  (those are ones that are contained in Part 1 of Schedule 1 of LASPO, so you can see that there is POTENTIAL for s51 applications

 

2)     Cases that are not within scope, but MIGHT be funded if the Legal Aid agree that there are exceptional circumstances that justify it  (in practice, no chance)

 

 

You find that explicitly in LASPO, though written in oblique language

 

9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

 

10 Exceptional cases

(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

(2)This subsection is satisfied where the Director—

(a)has made an exceptional case determination in relation to the individual and the services, and

(b)has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

 

[What section 10 means in practice is “we were obliged to say that this Act was compatible with the Human Rights Act, so we stuck in this exceptional provision for legal aid to be granted in cases where NOT granting it would be a breach of Human Rights, but actually dishing it out to real people, for real cases? I should cocoa”    *]

 

 

*I wish people said “I should cocoa” more often

 

 

Anyway, the addition of s51 applications to Part 1 Schedule 1 means that the applications MIGHT fall within scope for legal aid (and thus be applications which might get legal aid after a means and merit test is applied)

 

However, it is not as simple as that (sorry) because where s51 gets placed in Part 1 Schedule 1 of LASPO means that these applications are only in scope in narrow circumstances, and for all others you are stuck with exceptional (remember, when I say exceptional here, the statutory definition of whether that will actually occur is  “as likely to happen as a comet made of solid gold landing in your back garden and striking oil where it lands”      –    The Let’s Pretend Something is Available when it really isn’t Act  2014 section 1(1) )

 

 

 

So, in Part 1, Schedule 1 of LASPO  (as amended by Children and Families Act 2014),  applications under s51 come in two possible categories where the application can qualify for public funding

 

 

Paragraph 12

 

Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

 

So, if you can persuade the Legal Aid Agency that the reason you are applying for an order for post-adoption contact is that you are the victim of domestic violence or are at risk of domestic violence and that the application is in some way a remedy for that, you might get legal aid.

 

[Is it just me, or does that seem inherently unlikely? I mean, I have a creative brain and love thinking up crazy scenarios, but I’m struggling to come up with a set of circumstances that would fit that]

 

I suppose, racking my brain, that given that s51 allows for the Court to make an order that there shall be no contact, there MIGHT, just MIGHT be a conceivable circumstance in which the post-adoption contact order application might be to stop the perpetrator of domestic violence having contact and that would in some way alleviate the risk to the applicant. 

 

 [It is also possible, and perhaps more likely,  that this is referring to the adopters themselves as applicants for an order for NO contact to an individual, though the amount of adopters who would pass the means element of the Legal Aid test is microscopic, I suspect]

 

 

The other category is

 

Paragraph 13

 

Protection of children and family matters

13(1)Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child who is or would be the subject of the order is at risk of abuse from an individual other than A

 

 

So the applicant would need to persuade the Legal Aid Agency that the purpose of the application for post-adoption contact is to protect the child from risk of abuse from a named individual  (that individual has to be someone other than the applicant)

 

If you are the biological mother, you MIGHT be able to persuade the Legal Aid Agency that the risk of abuse comes from the child’s father and not yourself, or vice versa.  But I’m struggling to see how you persuade the Legal Aid Agency that the right way to protect the child from the risk of abuse is that you have some post adoption contact.

 

I again think that this is probably aimed more at financially impoverished adopters who meet the means test for Legal Aid, and are saying that contact poses a risk of abuse to the child from the parents.

 

 

I’m afraid that all of that was very long, because it is complicated, but how it ends up, it seems to me, is that section 51 applications aren’t going to be backed by Legal Aid UNLESS the LAA agree that there are exceptional circumstances   [solid gold comet strikes oil – you are now so rich you don’t need Legal Aid]

 

You could argue that if Parliament genuinely intended section 51 applications to be made, and for deserving cases to result in section 51 orders, they could have placed such applications squarely in Part 1 Schedule 1 of LASPO without the bizarre qualifications.  The gatekeeping provision could have been that the Legal Aid Agency would have to determine whether the application had sufficient merits to justify the funding being awarded.

Unless and until either the English Courts or the ECHR give a decision saying that failure to provide funding for such an application is in breach of human rights, it looks as though any parent making such an application would be doing so as a litigant in person.  Good job the legislation is written in such plain English.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

22 responses

  1. Not to be rude but, how would it help children to be placed with impoverished adopters who would probably be unable to provide a brighter future? If they can hardly provide for themselves how are they expected to provide for adopted children, I suppose the answer is that the tax payer will pay for everything.

    • I don’t think that there really are impoverished adopters, or at least not at the time they are approved as adopters or the order is made. People’s circumstances do change though. I have to admit, I’m struggling to understand why LASPO was amended in this way – it seems such a narrow band of people that would be able to benefit from it.

  2. i am going to court with my daughter for the final hearing.about my grandson.who is getting adopted.without my daughters concent can i stop it.please help

    • Hello Linda, hopefully your daughter has got a solicitor, and that solicitor will be the best person to ask. I’m afraid that I can’t advise you on a specific case. What I can tell you, in general terms is that the Court should not make orders that sanction adoption unless it is the very last resort, that if there is someone within the family who could care for the child instead that this should have been looked at and if you haven’t been asked about this, you could ask to be assessed now, and that there is a reasonable chance that if you go and see your daughter’s solicitor with her that you will be able to file a statement saying what help and support you can offer your daughter and why this would make her care ‘good enough’.

  3. Pingback: Legal aid for section 51 applications – c...

  4. Ashamed to be British

    Surely this would help the many parents who have had their children adopted, only to be have been found right about lies, or a medical condition in their child later on? Obviously it’s too late as the child is irreversibly adopted, but they could use this argument for contact?

    • A very good point (although there won’t be free legal advice for even those cases), but people like the Websters (children removed and adopted, later kept a subsequent baby, had the factual basis for the adoption – non accidental injury overturned and replaced with a finding about scurvy caused by formula milk, tried to revoke the adoptions, and couldn’t) might well be looking at this. (I can say their name because it was published in judgments and authorised by the Courts)

      • Ashamed to be British

        I agree M & N should jump all over this, along with a few others in a certain Panorama program (I want my baby back!)

        Your previous blog regarding punishment without crime, plus this one combined might give toni aka as Stella and Ms Freeman some hope that an adoption might not be such a good idea after all, things are certainly on the turn

      • Ashamed to be British

        Nor would I, in fact my money would be on the Websters – I find it incredibly distasteful that this change of tide is far too late for so many parents

    • It might also be an avenue for a parent who makes changes later in life, keeps later children, and wants the children to have some face to face contact with their brother or sister.

      • Ashamed to be British

        It might also be the avenue to reversing adoption decisions – we can hope

      • I was going to say that the decision of the Court of Appeal in Webster probably makes it hard if not impossible for a revocation of an adoption order; but that river was crossed by the President in Re W (when he revoked an admittedly fresh adoption order in order to rehear the leave to oppose application).

        Would today’s Court of Appeal decide a case like Webster in the same way? They’d have to take account of the previous law, obviously, but there has been quite a sea change in the make-up and disposition of the Court of Appeal in even those few years. I would not put money on a case like Webster being turned down now.

  5. Ashamed to be British

    Rar! Will have to put it here …

    Nor would I, in fact my money would be on the Websters – I find it incredibly distasteful that this change of tide is far too late for so many parents

  6. Here is an interesting one:
    How would this impact on a SGO? Parents and G’s all want the ‘contact contract’ amended; LA pay for annual face to face. LA have written to all parties saying they oppose any changes to the ‘contract’.

    Ideas?

    • Hmmm.Can’t really get into specifics, but in broad terms

      1. If there’s an agreement about contact, but no order, the SGs have the power to allow more contact than was agreed. No need to go back to Court.
      2. If there’s a contact order, then that is a section 8 contact order (as the child is with SGs not in care) and any s8 contact order can be varied by the agreement of all of the parties, no need to go back to court.
      3. If in either situation, the parents and SGs WANTED to go back to Court to either obtain a contact order for the revised situation or to vary the existing one, the LA would not ordinarily be parties or respondents to that application, they would have to make an application.
      4. Slightly different if what is being agreed between the parents and SG is that the LA will SUPERVISE more contact than they have agreed to, or fund more sessions (travel or such). You probably would need them to agree to that.
      5. Also slightly different if what the LA are saying is that the new arrangements place the child at risk (for example a move to unsupervised contact), since they MIGHT depending on circumstances, make the decision that if the contact changes without their blessing they might no longer support the placement and issue care proceedings [If that’s a possibility, you would want to be really, really careful about rocking the boat]

      • The LA made the parties agree that in order for funding of ‘face to face’ contact to provided from them, that contact would be at a set level of days per year and that ‘indirect’ contact (eg SKYPE) was set at X amount per fortnight/monthly. (The child is not primarily in the UK.) The LA are meant to hold a review every year of all the arrangements. This has not happened for 4 years.
        Child is now significantly older (obviously) and wants all types of contact to be increased. As previously stated, all parties with PR are in agreement with the child’s wishes.

        There is no Section 8; there is mention of Sect 11(7).

        What the LA are not aware of is that the ‘strict contact’ arrangements have been ‘ignored’ for almost two years. (If they have not bothered to call a meeting when the G’s and child have been in the UK for the past 4 years, the opportunity to inform has not been possible.)

        The child is Gillick Competent; LA say this no longer applies; it is Frazer Competency that counts. (?Interesting for a male child?)

        *Note the jurisdiction the child primarily resides in refuses to be co-operative with the UK authorities in any way shape or form. (In the words of their DFCS ‘We wouldn’t even do a home visit over this.’)

        This is clearly a complex case and obviously covers non EU borders.

        The problem is none of the parties with PR are in a financial position to pay for extensive legal advice.

        *Finally, how would a UK LA issue proceedings for a child not in the UK and who doesn’t hold a UK or EU passport?

  7. Okay, so is the issue :-

    1. Whether the LA have to agree to the change? (see my first answer, the level of contact can be increased if the people with PR agree, LA can’t veto that and your jurisdiction point clears up that the LA can’t play hardball and threaten removal/ care proceedings)

    or
    2. Making the LA cough up for travel costs for the extra contact (in which case they either agree, or you start asking for notes of their decision-making process and using the magic words ‘Wednesbury unreasonable’ to describe their decision)

    Gillick competence and Frazer competence both arise from the same case, and you are utterly and totally right, the Frazer part of the test specifically relates to the prescription of contraceptive pills, so Gillick competence is the bit that relates to sufficient maturity and understanding.

    http://www.nspcc.org.uk/Inform/research/briefings/gillick_wda101615.html

    • And on the original theme of the blog – see also Lucy Reed’s analysis of the meagre level of cases where the Legal Aid Agency has granted funding under s10 LASPO (the ‘exceptional’ cases that would cover these s51A applications)

      http://pinktape.co.uk/courts/more-laspo-gloom/

      Only 3% of all such applications were approved, and that overwhelmingly for inquests. For applications made in relation to family cases, 0.7% were approved. Not encouraging

    • Personal Note: you are a STAR! I knew I was right. (There is an old phrase; Do you want to be right or do you want to be happy? I apparently gave a ‘bad’ answer; ‘Being right makes me happy.’ But I am that rare commodity; an INTJ woman; Try and imagine Sheldon Cooper with PMT. BUT in my job, it is a necessity.)

      The link you posted I have already sent….plus more….and they refuse to answer me now. Do you really want me to post what I sent the LA in response to their ‘Fraser Competence’ email…..It might give people a giggle.

      I do so love your references to Wednesbury Unreasonable’ and ‘decision making process’. I would like to use them. (Any conflict of interest?)

      My child is completely understanding of what is implied by him primarily staying with me; he also understands what the concerns were when he was ‘underage’ it has been pointed to me that this may be in breach of UN and EU ‘Conventions’
      Thanks again
      TC

      • Ashamed to be British

        I want you to post what you sent! There may be some stuff there that’ll help other parents.
        I want you to know, I have used Wednesbury Unreasonableness and decision making processes ( among other rules, guidance and laws) with my own grandchild, although the LA got to pre PLO, they simply could not get past me, happily, after 3 years of trying to get into court for care proceedings (and believe me they fought hard, I just fought harder) the legal team told them to close the file, it simply wasn’t going to go anywhere

        Be aware of the government guidelines to child protection and also the rules of natural justice, they can get you out of more shit than a field full of cows can throw at you

      • Ashamed…post any of my comments with my blessings. I have nothing to hide and nothing to fear.(They also say-which is morally problematic for me- Might makes Right’. )

        What I find the most frustrating is the general Incompentency!

        Here is what I sent the LA (for your fun and amusement on a Friday morning. Note: will take no personal responsibility for people spewing coffee on keyboards,)
        Mrs. Fr

        The Frazer Competency/Guidelines are very clear. Unless my son has undergone a sex change without my knowledge, I very much doubt that he would be asking a Doctor for the contraceptive pill under the age of 16!
        TC

        http://www.nspcc.org.uk/Inform/research/briefings/gillick_wda101615.html

        http://www.bmj.com/content/332/7545/807

      • Well, any LA who makes a reasonable decision has nothing to fear from judicial review, but it is peculiar how many I managed to get to reconsider their decision when they got letters with those judicial review phrases in them. I have worked on the other side of the fence too.

        As to the Frazer / Gillick thing, I have encountered that blurring, and professionals do seem to miss that Frazer competence is really only of use in that narrow situation of being a GP and being asked to prescribe contraceptives. Gillick is the thing we’re actually interested in 98% of the time.

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