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
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
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.