Defining Legal Aid in Adoption
What is Legal Aid in Adoption?
Legal aid can be defined as the provision of assistance in a legal matter, especially in a case involving criminal proceedings, which permit expenses to be met out of public funds and for which there is no private means of recovery. In the case of adoption, legal aid should be provided to the adoptive parent as a matter of course.
The personal support from a solicitor during the adoption process can reassure and empower the adopters about the decision and process to come. In this context, legal aid can be an extremely useful tool for prospective parents – more so than what might be available through their local social services department. It may indeed be true that your Adoption Officer is an expert, but it is unlikely that they will have experience or be adequately trained to deal with matters such as redaction of documents , race issues, or finding the correct local registry office – or the many pitfalls that may arise when a case is heard in front of a judge.
There are two ways that legal aid can be sought for the adoption process.
The first is a non-means tested option, where the government provides legal advice for free, no matter how much the applicant earns. This is called the Legal Help Scheme. Adoptive parents can use this scheme to get help at any time before their placement order is granted. This can also be useful if there is a dispute regarding contact with the birth parents or someone else.
The second is a means tested option – requiring a contribution to be paid upfront, and receipt of a refund once the case is resolved. This can be done under the Legal Representation Scheme, and is available to those who qualify based on their income and assets.
Who Qualifies for Legal Aid in Adoption?
Securing legal aid for an adoption case depends on whether the court considers it appropriate to give you public funding. There are two tests that an applicant needs to meet before being eligible for legal aid.
The first is the financial test, where the amount of disposable income and savings you have are tested. Disposable income is the income you have left over each month after you’ve paid your essential bills. The amount varies for different family sizes, but the relevant government table sets out examples. You’re not eligible if you have more than the amount stated in that bracket.
The savings test looks at the liquid capital or savings you have. If you’re under 16, your parents’ income and capital will be assessed, as well as your own. Liquid capital is cash and other forms of money that are easily accessed, but it doesn’t include the home or other assets that can’t be immediately used to pay legal fees, such as cars, boats, shares and property. The amount you’re allowed depends on what it will cost for you to prove or defend your case.
In addition to the financial eligibility tests, the Court also considers what are the circumstances of the case, the question of whether it is in the public interest to award costs.
If you meet both criteria then you may be able to get legal aid for your case, but you must also consider the merits or the chances of succeeding before you move on.
The Different Forms of Adoption Legal Aid Services
It is important to note that legal aid provisions are not guaranteed in cases of adoption. The services available differ from one jurisdiction to another, and from one case to another, depending on the severity of the need. However, there are a few common forms of adoption legal aid services available that are designed to help those who may otherwise be unable to afford some or all of the legal representation they will need before, during, and after an adoption.
Retained Legal Services
If a prospective adoptive couple has the finances to do so, retained legal services are the most common form of legal aid during the adoption process. The most obvious benefit of this service is the fact that with retained legal counsel, the family can get the most comprehensive and personalized legal representation for the sake of the adoption.
Pro Bono Services
Pro bono legal aid is a common term when referring to the free legal counsel that is available in certain circumstances. In some cases, a family may slip through the cracks when it comes to income, suffering from a particular financial burden that only a low-income family would usually suffer from. Thus, the needs of a particular family may be covered by pro bono services to assist those in cases that fall into the "grey area" between low-income and middle class.
Low Income Services
While pro bono services apply to lower class families, low-income services are designed for families with a slightly higher income level. This also helps cases where the need does not fall into the usual categories of legal aid, while still leaving the family with excess fees that could indeed create a financial strain. Costs that are more than one thousand dollars more than the fees for a typical adoption may qualify for low-income services.
Legal Aid Consultation Services
Legal aid consultation services apply to those cases in which there is a great need, but the prospective legal counsel has too many cases to take on or if the specific case needs different types of skills or services outside of the usual legal representation. The best way to find out about these services is to consult with local Auxiliary Circuit Judges, or organizations such as the American Academy of Adoption Attorneys or the American Academy of Adoption Circuit Judges.
How to Apply for Adoption Legal Aid Services
If you believe that your case qualifies for legal aid, the process for making an application does not have to be overly complicated. The first requirement is that you fill in a form SFI, which helps you assess whether you meet the income criteria to qualify for legal aid. This will include gathering evidence of all of your household income and a copy of your Bank or Building Society Statements to see how much you have in savings or investments. The information required to make this determination is contained within the Legal Aid Agency’s leaflet Not Sure if You Qualify for Legal Aid? A Quick Guide.
If you fall above the limit for income, then you will not be entitled to legal aid, although the Government proposes that there will still be some help available to assist with the legal process of obtaining an adoption order. If you do fall within the financial limits to qualify for legal aid, then the next stage of the process is for your solicitor to complete a legal services form and a means assessment for you. Depending on your results from this, the Legal Aid Agency will issue a legal aid certificate giving you permission to seek legal advice.
Not all solicitors are registered for legal aid, so you may need to obtain a list of registered firms from your local Law Society office. Legal aid covers the costs of the legal advice and the representation at Court.
The Advantages of Legal Aid for Adoptions
One of the most significant benefits of legal aid for adoption is that it typically enables individuals and families to save a lot of money on administrative work. For various reasons, adoption of all kinds, including infant, international, foster care, or an adult child, is usually associated with significant amounts of money. This is the case due to lengthy filings and processing with various state offices and agencies as well as, in the case of international adoption, legal fees, medical care, translation services, and other stressors and extra expenses. Using a service like legal aid ensures that you will spend less time working on the paperwork of adoption and more time embracing your new family member .
In addition to cutting down on time spent handling all the paperwork that comes with adoption, legal aid provides professional assistance; many people are untrained in the legal fields. Professionals ensure that the process moves smoothly and is founded on solid legal footing. Furthermore, in the case of adoptions for educational and health-related services, parents often have to negotiate for the best possible support for their child. A lawyer allows parents to do this with a single individual rather than having to deal with multiple untrained professionals.
Drawbacks of Legal Aid to Adoptions
Despite its advantages, legal aid for adoption is not without its challenges and limitations that applicants may face when seeking this support. The scope of services varies by location. In some areas, legal aid societies offer a broad range of services, while others concentrate on specific components of the law or particular communities. When seeking legal assistance, applicants should check with local legal aid organizations to see what services are available and to whom. As with most programs, funding is limited to a certain number of clients. Additionally, some legal aid organizations simply do not assist with some family law matters, including adoption. In this case, applicants must pay for a family law attorney entirely out of pocket because even partial financial aid for adoption may not be available. Some legal aid services may also be based on the availability of volunteer attorneys, who often represent a much lower number of clients each month than paid attorneys. If an applicant is deemed eligible, there may still be a waiting period for a volunteer attorney to be assigned to the case.
Successful Adoptions: The Role of Legal Aid
Many prospective adoptive parents have pointed back to their access to free legal advice through Legal Aid as the factor which made their adoptions possible. Clemens and Clare are just one example.
"Both Clare and I were lucky enough to take part in the adoption program run through Legal Aid here in Victoria. The legal advice and counsel we received was great and more importantly gave us the confidence to forge ahead with an adoption. The agency we chose and who facilitated the adoption was helpful and knowledgeable too. It was so great to have free legal advice at every step of the way on the legal processes and issues that we faced. Our final adoption took a little longer than expected but the agency and lawyer were always there to give us advice and help with the process. It was great to not have to worry about how much it would cost us to seek legal advice and assistance and we are so grateful for those that support Justice Connect and the work they do to make this program such a success."
Justin and Angela also took part in the program. They adopted their son Daniel, an 11-month-old boy who has cerebral palsy and is significantly disabled.
"As two same-sex couples, we were very concerned with the complexities of adoption, and the potential difficulties we might face as such. But we found working with Justices Connect was very easy and straightforward, and we feel confident that we were provided exceptional legal advice."
Daniel’s photo, provided by his parents, accompanies this page.
Adoption Legal Aid: Common Queries
There is a general misconception that the Government does not fund legal aid for adoption matters. While this was true in previous years, more recently the system has changed and the Government does fund a limited range of legal aid for adoptions. Not all adoption applications qualify for legal aid. This is because the Government priority for legal funding is issues such as domestic violence and child abuse which are viewed as urgent situations. If your adoption application cannot wait for legal funding approval then you can challenge the decision with the Legal Aid Agency. However, if you do not meet the urgent factors involved with a situation such as domestic violence or there is no significant evidence to suggest your application is absolutely urgent then you will need to wait for a legal aid budget approval. The need for legal funding to be approved before legal aid can be granted is because the Government has now introduced legal aid budgetary spending, meaning the Ministry of Justice has a pot of money it must stick to when funding legal services. The Ministry of Justice then has to allocate legal funding to each legal aid agency based on its budget . Your application to see a solicitor should be approved if it complies with criteria, such as: The LAA may call you for an assessment interview to determine your eligibility. You should hypothetically qualify for legal aid when applying for an adoption order with HM Courts and Tribunals Service. However, unless there is a specific reason, such as the child requiring an adoption sooner rather than later, you may have to wait up to three months for legal aid funding to be approved. Whilst waiting for legal aid to be approved, your adoption order case can still move forward, however, it will be classed as a "non-urgent case". As such, your legal fees will not be covered until your legal aid funding has been approved. Under no circumstances should you take out legal financing from a loan company to speed up the process of legal funding being approved. This is because if your adoption fails, you do not get your legal fees back – therefore costing you a lot of money to lose the adoption case if it does not succeed. If your adoption does succeed, you may then have to fight to get the financial costs back – all of which is stressful and time-consuming. It is advisable to only enter into expenditure once the legal aid funding has been agreed rather than spending money on unnecessary loans.