The family court has recently highlighted a big challenge for grandparents who face allegations in care proceedings.
In a recent case* a 19 month old baby had suffered an unexplained head injury. The people who had care of the child in the timeframe identified by the medics were the parents and the grandmother. The court proposed to have an investigation as to how the injury was caused. Sometimes this is called a fact finding hearing. The court will hear from everyone involved and can hear from the medical experts. These hearings could have life-changing consequences for those involved in it.
In such proceedings parents are automatically entitled to legal aid funding – irrespective as to the merits of a case or their income. They will have a lawyer at the hearing who can ask questions on their behalf and challenge the evidence before the court drawing on their experience.
The same rule is not granted to grandparents, or indeed any extended family member in that situation (aunties, uncles, cousins and non-parent partners etc). So if they are on the list of possible perpetrators for an injury and wanted to apply for legal aid they would need to show merits and be financially eligible under the scheme.
If a person has savings, owns their own property and/or has a good income then this can exclude them from legal aid funding or require them to make a contribution which will impact them financially. It leaves many in the situation where they do not have the means to obtain representation due to the expense but equally are not eligible for legal aid funding.
In the case mentioned above, the grandmother clearly had a case to put but she was not financially eligible for public funding and could not get legal aid. It is clear in such circumstances that the grandmother could have been disadvantaged as the other parties were legally represented. One of the things considered was the grandmother selling her home so she could pay for legal representation.
Fortunately, the grandmother was able to secure pro bono (free) representation in this case. The judge commended the grandmother’s barrister for being willing to do such a challenging case for no fee. Having had a fair hearing there is clearly greater confidence in judge’s decision which was that on the balance of probabilities they were not persuaded that the child sustained non-accidental injuries. Absent any findings the family’s life can go back to the way it was before the court proceedings started which must have been a huge relief. Facing those proceedings must have been very daunting for the whole family particularly for the grandmother who didn’t know if she was going to be represented and how she would afford it.
Should you find yourself in a similar situation, please do not hesitate to contact us for advice as we can undertake a short legal aid assessment in the first instance to confirm whether if legal aid funding may be available and if not, we can advise you on your options for representation. At such a difficult time, it is imperative for anyone on the list of preparators to seek advice to ensure that proper representation can be put in place at what could be a life changing hearing.
* Re G (Non-Accidental Head Injuries) [2024] EWFC 172