Kinship carers in the courts Part II: access to justice and lessons from the case law

Andrew Bainham Emeritus Reader in Family Law and Policy University of Cambridge

In Part I the author looked at reported decisions of the courts involving prospective or current kinship carers. In Part II he considers what lessons might be learned from this case law in both public and private law children cases. It is the author’s view that access to justice for potential kinship carers in the public law is poor and that reform especially but not exclusively of legal aid is necessary. Given the unlikely award of costs in children cases and the lack of automatic legal aid for the wider family potential carers may be deterred or prevented from putting their case because of financial considerations.

In the private law it is argued that the rules on standing affecting the wider family and friends are over-technical unduly restrictive and also in need of reform. The question of the scope of the Law Commission’s project on kinship care is raised. Is it intended to confine this to situations in which children are either in care or on the edge of...