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Q v Q – an impasse

 

You may not be aware (it depends if you spend too much time online), that on the internet QQ in effect means stop whining, or crying about something (the Q’s looking like a pair of eyes with tears coming out of them)   – if you say that someone is QQ-ing, it means that they are whining like a child about something.    [ it comes up a lot]

 

In Q v Q 2014, the President tackles what’s been a long-standing problem in family law proceedings, particularly family law. And brings tears to the eyes of the Legal Aid Agency, Her Majesty’s Court Service and our beloved minister Chris Grayling. QQ indeed.

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/7.html

 

For many years now, the Legal Aid Agency, under its various guises, has had a policy that they will withdraw public funding from someone who has legal aid (free legal representation) if there is an independent report which is heavily against them. Back when I was doing private law, this quite often used to be the CAFCASS report, and you’d end up in a position where your client’s legal aid would be pulled two days before a final hearing because the CAFCASS report was very damning.

 

Of course, the report is at that point untested evidence – for the Legal Aid Agency to presume that just because on paper the CAFCASS officer is against your client, there would be no prospect of getting them to change their mind or getting the Court to disagree with their conclusions is presumptuous in the extreme. If all the Court did was agree with what the CAFCASS report said on paper, then we wouldn’t need Judges at all, and CAFCASS could be the investigators and arbiters of final outcomes.   [Indeed, on a few such cases I recommended my client for free, and got a favourable decision for them]

 

That’s not a new thing, but in this case, the father was publicly funded and an expert was instructed (it was his expert) and the expert was heavily against him. His funding was pulled.

 

The father was therefore appearing in person, and requiring an interpreter. He wanted to be represented and he wanted to challenge the expert report. The mother, who was represented, invited the Court to dismiss his application and make a section 91(14) order prohibiting him from making further applications without leave of the Court.

 

The Court were unhappy about the impact of proceeding without representation for the father on his article 6 and article 8 rights, and mooted a series of possible solutions, before adjourning the case and inviting the Legal Aid Agency and Ministry to intervene to discuss those possible solutions.

 

 

In the circumstances, what I propose to do is this: I propose to adjourn this matter for, I emphasise, a short time, inviting the Ministry of Justice – or it may be the Secretary of State for Justice or it might be the Minister for the Courts and Legal Aid – to intervene in the proceedings to make such submissions as are appropriate in relation, in particular, to the argument that in a situation such as this the expenditure which is not available from the Legal Aid Agency but which, in the view of the court, if it be the view of the court, is necessary to be incurred to ensure proceedings which are just and fair, can be met either from the Legal Aid Agency by route of the other certificate, the mother’s certificate, or directly at the expense of the court.

 

 

I appreciate that this is a case in which, as Miss Spooner points out, there have already been too many adjournments of supposedly final hearings. I appreciate it is a case which has been going on for the best part of four years, which is depressing to say the least. And I am very conscious of the fact that the mere existence of the proceedings, and they must seem to the mother and her son to drag on interminably, is having a significant impact both on the mother and also on the parties’ son. Factoring that in as I do, it does seem to me that some further, but limited, delay is inescapable if I am to do justice not merely to the father but, as I have emphasised, also to the parents’ son.

 

 

I shall accordingly, in terms which I will draft, adjourn this matter so that the relevant ministry can intervene if it wishes to and on the basis that if it does not I will have to decide the issues I have canvassed without that assistance. I will reserve the matter to myself. I will direct that the hearing takes place as soon as it possibly can after the forthcoming short vacation. I would hope that the hearing can take place in front of me in June.

 

 

This is about nine years too late for the general principle, and a year late for the LASPO position which left almost all parents in private law cases unrepresented (I suspect that the father’s rights movements would also say that as a result of relative incomes, there were a huge number of cases in which fathers had to represent themselves because they had slightly too much money for legal aid representation but not nearly enough to pay privately, and I have some sympathy with that position)

 

It is welcome anyway, even if it is late.

 

The President helpfully gives people a valuable little crib-sheet in case they WERE asking the Legal Aid Agency to grant legal aid in the s10 LASPO exceptional circumstances

 

Putting it in the language of FPR 2010 1.1, the court is required to deal with this matter “justly” and by ensuring “so far as is practicable” that the case is dealt with “fairly” and also “that the parties are on an equal footing.” That is the obligation of the court under domestic law. It is also the obligation of the court under Articles 6 and 8 of the European Convention. Despite what Miss Spooner says, I am left with the strong feeling that I cannot deal with the matter today justly and fairly by acceding to her submission.

 

As I have said, the domestic obligation on the court is to act justly and fairly and, to the extent that it is practicable, ensure that the parties are on an equal footing. In the well-known case of Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, the European Court of Human Rights held as long ago as 1979 that there could be circumstances in which, without the assistance of a legally qualified representative, a litigant might be denied her Article 6 right to be able to present her case properly and satisfactorily. In that particular case, the court held that Ireland was in breach of Mrs. Airey’s Article 6 rights because it was not realistic in the court’s opinion to suppose that, in litigation of the type in which she was involved, she could effectively conduct her own case, despite the assistance which the judge affords to parties acting in person.

 

 

Mantovanelli v France (Application no 21497/93) (1997) 24 EHRR 370, a judgment given by the court in March 1997, indicates the significance of the right to an adversarial hearing guaranteed by Article 6 specifically in the context of an expert’s report which was “likely to have a preponderant influence on the assessment of the facts by [the] court.”

 

 

I mention those cases merely as illustrative of the kind of issues which arise in this kind of situation. I emphasise I do so without expressing any view at all as to whether, in the circumstances I am faced with, unless there is some resolution of the present financial impasse, there would be a breach of either Article 6 or Article 8.

 

 

 

You may have noticed that I haven’t come on to the facts of the case yet, which is not my usual approach. You may be wondering what the facts of this case are that led to the President being so troubled about the father’s human rights (especially given that there was no such intervention on the D v K case where a father was accused of rape by the mother in private law proceedings and not given legal aid, leaving him in the position of facing those very serious allegations without a lawyer and the mother in the position of being cross-examined by the father directly, something which would be illegal if it happened in a criminal trial http://www.bailii.org/ew/cases/EWHC/Fam/2014/700.html   So it must be something worse than that?)

 

 

Well, this, I’m afraid is one that the Daily Mail would exhaust the entireity of the “Outrage” section of Roget’s Thesaurus

 

The father is a convicted sex offender, having convictions for sexual offences with young male children, the second of which was committed during the currency of these proceedings.

 

 

That’s right – the man who the President has gone to the wall for, to defend his human rights, to single out and say “This is the case where I must defend the father’s rights” is a convicted paedophile seeking to have contact with his seven year old son.

 

[That, sadly, is the point of human rights, that they are universal and apply to the most deserving and those who the general public might regard as undeserving and beyond the pale. It isn’t great PR for those who support human rights – including myself, when it is cases like this that stir our courts into upholding rights. It does seem from time to time that the more unsavoury you appear to be, the more thought the Court give to your rights. I hope it only seems that way.

 

If you were to hold a national referendum on whether this man, a convicted paedophile, should get to see his seven year old son, I don’t imagine that it would be a finely balanced result. I don’t think bookmakers would be giving very good odds on “No” ]

 

 

 

 

Back to the legal debate, the President felt that just because the report was against the father that would not determine the matter

 

Tempting though it is to think that the father’s case is totally lacking in merit, it does seem to me, despite everything Miss Spooner has said, and recognising the constraints which may be imposed on cross-examination by the fact that, in part, challenge on behalf of the father would be to his own expert, I am unpersuaded that there are not matters in these reports which could properly be challenged, probed, by someone representing the father.

 

 

For example, a perfectly proper line of cross-examination of JD might be along these lines, “In part at least, your analysis of the risks that the father poses to his son, as opposed to other children, is based upon the account you have had from the mother of what went on in the family home.” It would seem, bearing in mind the language of JD’s report, that the answer could only be, “Yes.” The next question then might be, “Suppose for the sake of argument that the true picture at home was not what the mother says but a very different picture presented by the father. Just suppose that. Would that affect your opinion?” I use that only by way of illustration of a wider point that could be made in relation to these reports. That seems to me to be a proper and appropriate line of cross-examination.

 

 

My problem and ultimately Miss Spooner’s problem is that it is completely a matter of speculation as to what JD’s answer would be to the last question I formulated. The answer might be, “It does not make the slightest difference at all because of X, Y, Z”, in which case the father’s case might evaporate. It might be, “Well, yes, that might make a difference.” The point is we simply do not know

 

 

 

[If you are thinking at this point – well all of that seems like it could apply to ANY witness who was against you, and thus ANY case –mmmmm, yes, I agree. This could be a very critical case for the Government and LASPO. If they don’t take it seriously, it could put a serious hole in their policy about legal aid]

 

 

What were the Court’s possible options to resolve this unthinkable impasse?

 

Assuming that public funding in the form of legal aid is not going to be available to the father, because his public funding has been withdrawn and an appeal against that withdrawal has been dismissed, and on the footing that, although the father has recently gained employment, his income is not such as to enable him to fund the litigation, there is a pressing need to explore whether there is any other way in which the two problems I have identified can be overcome, the first problem being the funding of the attendance of the experts, the second being the funding of the father’s representation

 

 

There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public fundsThere may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case – I emphasise the word “necessary” – in order to ensure a just and fair hearing. In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds.

It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.

 

 

May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated in justice not merely to the father but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here. I emphasise the interests of the son because, under our procedure in private law case like this where the child is not independently represented, fairness to the child can only be achieved if there is fairness to those who are litigating. There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child

 

 

 

 

If you have ever watched a submarine movie (and if you haven’t, you have wasted your life to date), you will be familiar with the sequence where disaster strikes, water breaches the hull and red lights go on and a siren blasts “Arooogah Aroogah” for the next twenty minutes of the film, where men in crewneck jumpers and/or bellbottoms use wrenches on pipes and doors burst open and water pours in.

 

That submarine disaster sequence is  pretty much what the scene at Her Majesty’s Court Service would be like when they read this line from the President

 

 

. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters

 

 

What the President is saying there is, if a situation arises in which a party’s human rights would be breached by having to conduct litigation without a lawyer and the Legal Aid Agency won’t pay, it might have to come out of the Court’s budget, otherwise the Court would be breaching the party’s human rights.

 

Aroogah! Aroogah!

 

 

In private law, if someone is going to have to pay for legal representation to prevent a breach of article 6 and article 8, the options are basically limited to the Legal Aid Agency or the Court (either way, it is coming out of Mr Grayling’s budget)

 

Aroogah! Aroogah!

 

Luckily, we know from Mr Grayling’s comments about the completely opaque terrorism trial of AB and CD that “We must trust the Judges” and on that basis, I’m sure that Mr Grayling will stand by that, and not bring a Silk along to talk the President out of it, or appeal any decision that the President might make.

 

And also note that the President drags the poor old Local Authority into this, despite being a private law case that they aren’t involved in.

 

In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay

 

 

It is wrong, and probably a contempt of Court for me to refer to the President of the Family Division as Dude – so let’s for a moment imagine that I am talking about someone entirely different  (which I am, I am addressing a friend of mine who has just made this very suggestion, in coincidentally the same words that the President used), but

 

Dude !

 

Are you saying that if a child has a fractured skull, and the suspects are mother and mother’s boyfriend, and mother’s boyfriend can’t get legal aid, the Local Authority should pay for the boyfriend’s lawyers to fight the case against them? That it would be fine for those lawyers to be paid by the applicant in the proceedings, who is running a case directly in opposition to their client?

 

Dude!

 

 

[I think in the light of Re T, we’d see what the Supreme Court thought about that. The answer it seems to me, is that we need our Courts to unlock s10 LASPO exceptions by saying that these cases would be an article 6 breach in accordance with the spirit of Airey v Ireland, and it would be Wednesbury unreasonable for the Legal Aid Agency to decide otherwise once a judge has ruled that there would be an article 6 breach. IF that is the path that the President goes down, it seems to me to have the potential to punch a big hole in the hull of HMS LASPO - it is lucky that Mr Grayling trusts the Judges]

 

 

 

Getting an expert report in private law proceedings

 

The Court of Appeal (almost a year after the High Court ruled otherwise) have decided in JG v the Lord Chancellor and Others 2014, that a Court can lawfully decide that the costs of an expert report be bourne by one party (the one who is receiving public funding) rather than split between everyone.

 

I wrote about the original decision here http://suesspiciousminds.com/2013/04/11/not-with-a-bang-but-a-whimper/  with quite a bit of disappointment in my heart, so I am pleased that the Court of Appeal have taken a different view.

 

Quick bit of context first – up until LASPO  (Legal Aid, Sentencing and Prosecution of Offenders Act) came into force, most private law proceedings (i.e mum and dad arguing about where a child should live, or how much time the child should spend with each parent) had at least one of the parents, sometimes both, receiving legal aid (free legal advice). That legal aid could be used to pay for expert reports  – for example, if there was a dispute over paternity, a DNA test, if one person alleged the other had an alcohol or drug problem, testing, if the child was displaying unusual behaviour an expert to help understand that.

After LASPO, people now only get legal aid in exceptional circumstances  – it doesn’t matter if they are on benefits, or have learning difficulties, they won’t get legal aid unless they fit some very narrow prescribed criteria.

Next bit of context – in particularly tricky cases, the Court appoint a Guardian (which we call a Rule 16.4 Guardian, after the bit in the Family Procedure Rules that governs it) to assist the Court in reaching decisions. The Rule 16.4 Guardian GETS legal aid.

That led to a situation in which if an expert report was needed and the parents could not afford it, the Court would order that the costs be met entirely by the Rule 16.4 Guardian (and hence legal aid).  The Legal Aid Agency cottoned on to that, and started refusing to pay (even after the expert had done the report and the Guardian’s lawyers had written the expert the cheque, leaving the lawyers out of pocket and thus reluctant to take on such cases in the future).   One such refusal was judicially reviewed, and Ryder J (as he then was, he is now Ryder LJ) refused the judicial review and said that the Legal Aid Agency was entitled to take a position that any expert costs should be divided equally between all of the parties and that the costs should not all be loaded on to the Guardian’s public funding.   [It is a little like three people going out to dinner, and putting the bill on the person who has an Expense Account, if that makes sense, and then the firm paying the Expense Account saying  "Hey, we don't mind paying for YOUR dinner, but not for the other two"]

Ryder J did say that in an exceptional case where the parent could not possibly pay anything towards the cost of the report, and the Court considered it was vital, things might have to be looked at differently.

So, the Court of Appeal disagreed with Ryder J’s decision – but not in a way that gives carte blanche for all reports to be loaded on to the Guardian’s public funding certificate (actually the Child’s) and the parents to pay nothing. It is a bit more nuanced than that.

http://www.familylaw.co.uk/articles/jg-v-the-lord-chancellor-and-others-2014-ewca-civ-656

 

There were basically two sides to this (because it had now become an issue about principle, rather than the parents own case) – the Law Society, arguing that the Court should have the power to decide how costs should be apportioned and particularly where failure to have the report would breach article 6 (right to fair trial) or article 8 (right to family life),  and the Lord Chancellor – arguing that this should only be in a situation where the Legal Aid Agency deemed itself that it was appropriate. It’s a fundamental question of who is in charge, the Court or the Legal Aid Agency.

 

Law Society to throw first

a) The appellant’s and the Law Society’s case on the general question
67. The appellant adopted the Law Society’s submissions on the general question. The Law Society submitted that where expert evidence was necessary in the circumstances set out in the question, the court should direct the child, through her guardian, to obtain the evidence and give the child permission to adduce it, although in instructing the expert, the guardian should normally seek to agree with the other parties, if possible, which expert is to be instructed and the instructions to be given to him. The court’s direction should be subject to any prior authorisation or increase in costs limitation that may be required for the purpose. The Law Society submitted that those responsible for administering legal aid could not refuse to give such approval as refusal would be incompatible with articles 6 and 8 of the ECHR and would deprive the court of the assistance it needs to enable it to determine what the welfare of the child requires, thus being “incompatible with the object and purpose of the legislation for the protection of children involved in private law family proceedings”. There is no point, submitted the Law Society, in funding the representation necessary to protect a child’s interests in the private law proceedings yet denying the funding required to enable the evidence to be provided that is necessary to establish what the child’s welfare requires.
68. It was submitted that a requirement, such as that favoured by Ryder J (see §§75 et seq of the judgment), for a “robust scrutiny of … means” with reference to a party’s financial eligibility for legal aid prior to the instruction of the expert would present the courts with a task for which, unlike the Legal Aid Agency, they are not equipped and which would import harmful delay whilst investigations were carried out. The Law Society’s proposal was therefore said to be a better alternative because the expert could be instructed without delay on the basis that the cost of the report could be met as a disbursement on the child’s certificate, leaving the parties’ respective liability for the fees to be dealt with by means of a costs order, if appropriate.

 

Lord Chancellor, you require forty  (sorry, to go next)

b) The Lord Chancellor’s case
69. The Lord Chancellor accepted that “if there were a case in which a report was genuinely sought by the publicly funded party alone, for reasons affecting that party, and the other parties did not agree with or seek to make use of the report, then the court might direct that the cost[s] were borne by that party alone and it would be legitimate for the legally aided party to bear the full costs of that report” (§61 of the Lord Chancellor’s skeleton argument). In those circumstances, he said, the legally aided party would have to formulate the instructions without the involvement of the other parties. That set of circumstances was not what he was addressing in his main submissions.
70. In cases where expert evidence was necessary but the report was not genuinely sought by the publicly funded party alone, the Lord Chancellor submitted that the judge’s solution, which had of course largely been put forward by him, was correct. Only in “very exceptional cases” could the court depart from the norm of a single joint expert whose fees would be apportioned equally between the parties, it was submitted. Two conditions had to be satisfied:
i) “a party’s means, assessed following a robust process, are such that he or she cannot afford to pay for his or her share of the report”
and
ii) “an order for equal apportionment would involve a breach of a party’s Convention rights in the family proceedings because it would prevent an expert report which the court considered necessary to the proper resolution of the case from being adduced”.
If the two conditions were satisfied, the Lord Chancellor’s case was that the court should still order a single joint expert but could visit a greater share of the costs on the legally aided party than normal, although whether the legally aided party would have to pay all the costs would depend on the circumstances.

 

The Court of Appeal then distil the arguments down to common ground and areas of difference

c) Points in common and points of difference
71. It can be seen that all parties agreed that there may be situations in which an order can be made which does not apportion the cost of an expert equally between the parties in a case. It was common ground that where this was a departure from the apportionment that would normally have been ordered, the justification for this would be that otherwise there would be a breach of a party’s Convention rights. It was also common ground that in these circumstances, section 22(4) would not present an obstacle to the order being made. The absolutist position which I think was adopted by the LSC in front of Ryder J, namely that there were no circumstances in which the LSC could be ordered to pay experts’ fees “beyond a proportion that represents the proportion of legally aided parties” (see §79 of Ryder J’s judgment), was not advanced before us.
72. Underlying matters of detail were not agreed. There was debate as to whether it was necessary to impose a requirement of exceptionality, as to when and how a party’s inability to pay should be established and, an allied question, as to whether the proper way in which to regulate the parties’ share of the fees was by regulating their contractual liability to the expert or by means of conventional costs orders. Another major difference between the parties was that the Lord Chancellor was wedded to the idea of a single joint expert (and utilised that as a significant part of the foundation for his arguments) whereas the other parties contemplated that the expert could be instructed by the child/guardian alone, albeit with input from the other parties to the instructions.

 

 

A major part of the argument was whether the report being commissioned was really one being commissioned solely on behalf of the Child, or whether it was really one for the benefit of all parties and just pretending to be a sole instruction to get the free funding   (To go back to the dinner analogy – was this really a business meeting that the Expense account could pay for legitimately, or were two people getting a free lunch?)

The Court of Appeal consider some hypothetical situations but eventually come down to this

 

84. Doing the best I can to forecast the sort of situations that may arise, it seems to me that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child, as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert’s instruction. Section 22(4) will then present no obstacle to the cost of the expert being met by the child’s public funding.

 

But going on to say that even if it is really a joint report, and the parents can’t pay, the Court still have to consider what is right and fair

 

When the expert is not solely the child’s expert
85. If the expert is not in fact the child’s expert but is a single joint expert, and the other parties are unable to contribute to the cost of the expert, it is necessary to consider in what circumstances public funds can be required to meet the whole cost. Once again, I will confine myself in this discussion to the current provisions of the 2010 Rules.

 

The Court then looked, in a lot of detail, about whether there was a presumption in law that any report would have the costs split equally –  there is a provision in the Family Procedure Rules that says that this is what will happen in the absence of the Court saying otherwise.  Does that mean that the Court have to have reasons for deviating from an equal split, or does it just mean that if the Court is silent, that’s what happens?

92. This provision received quite a lot of attention in argument in front of us. It is perhaps rather an odd provision to find in procedural rules, appearing to concern itself with the contractual relationship between the parties and the expert. It needs to be read with Rule 25.12(4)(a) which provides that the court may give directions about the expert’s fees and expenses. It is quite clear from that, and from its own terms, that Rule 25.12(6) is not intended to be prescriptive and merely establishes a default position as to liability to the expert in the event that the court does not direct otherwise. I do not see it as setting up a “normal rule” that the cost is to be apportioned equally, any more than the Calderdale case did.
93. None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to “the principles on which the discretion of [the] court is normally exercised” in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor’s submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of section 22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the cost of the expert. In such circumstances, section 22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.

 

That’s quite dense, but basically, what the Court of Appeal say there is that there may be circumstances (even if there is no issue over the parties ABILITY to pay) where the costs of the report might be met by one party exclusively or where one party may make a larger share, and the Court has the legitimate power to do that.

[That, to make it explicit, is the Lord Chancellor losing an argument]

 

Next – what about a situation where the Court thinks that it is FAIR to split the costs equally, but one or more parties has resource issues (impecuniosity – or in layman’s terms, they are skint)

95. In the light of what I have said in the preceding section, I would reformulate the Lord Chancellor’s submission so that, rather than focussing upon whether the court can depart from equal apportionment of the expert’s fees, it focusses upon whether the court can depart from the order that it would have made but for the resources problem (to which I will refer in shorthand as “the normal order”). The Lord Chancellor sought to impose what, for the purposes of the discussion that follows, I will treat as three conditions for such a departure from the normal order although I accept that he may well not have intended the third one to be a condition as such. The three “conditions” are that it must be established that the other party could not pay his share of the cost; the normal order would involve a breach of a party’s Convention rights; and the case must be a “very exceptional” one.

 

Condition 1  (remember these are the conditions proposed by the Lord Chancellor) – an equal split would involve a breach of the party’s convention rights  – there’s a lot of this, so I have skipped to the conclusion

108. The Lord Chancellor’s argument seems to me to risk prejudicing the child in order to prevent a parent who is not otherwise entitled to legal aid deriving a benefit from a report which has been paid for by public funding. I have already emphasised that FPR 2010 acknowledge that a party may benefit from a report produced by another party’s expert without that expert becoming a joint expert. Anyone who has ever conducted or watched a successful cross-examination of an expert knows this perfectly well. The fact that a party who is not publicly funded will or may benefit from the expert’s input is likely to be a material factor in the court’s discretion as to the cost of the expert but it is not a reason to conclude, as I think is the conclusion to which the Lord Chancellor’s submissions would logically lead, that even though the child’s Convention rights would be violated by the inability to obtain the expert advice that the court had concluded was necessary to assist it, the expert could not be paid for on the child’s public funding certificate because that would benefit one or both of the parents as well.
109. It is as well to remember that cases in which the child is joined as a party are far from commonplace, as can be seen from the various provisions which I outlined earlier in this judgment starting at §39. They will be cases in which there are particular challenges in determining what is in the best interests of the child or in actually achieving the right solution in practice. The role of the child’s guardian is directed very firmly at achieving a resolution that is in the best interests of the child. His or her duties are defined and circumscribed as I have described earlier. His or her decisions must be made for the benefit of the child and he or she must make such investigations as are necessary to carry out his or her duties including obtaining such professional assistance as he or she thinks appropriate. By the time the guardian has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.

 

It will be necessary for the parties to persuade the Court that an equal split (if that means the report can’t be obtained) would result in an article 6 or article 8 breach, but that’s not as much of an uphill struggle as the Lord Chancellor would have hoped – the parties start partway up that hill.

I reckon the Lord Chancellor   (apologies for not continually putting that title in quotation marks, since he isn’t a Lord Chancellor in the way that any lawyer or historian would recognise the role) lost that one as well

 

b) A very exceptional case
110. It is understandable that the Lord Chancellor should seek to confine the cases in which the cost of the expert would be apportioned unequally to avoid a breach of Convention rights by stressing that this could apply only in “very exceptional cases”. This approach ties in with the language of section 10 of LASPO 2012. However, whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.

 

That’s an indisputable loss for the Lord Chancellor.

 

c) Impecuniosity
111. It was common ground that the court would not be considering departing from the normal order unless the parties who would normally have to share the cost of the expert were unable to do so. There was debate, however, as to when and how impecuniosity would be determined.

 

There’s a risk of course, that the Court spends so long gathering information about whether or not someone is genuinely impecunious (as opposed to not keen on paying £2000 for a share of a report, which would apply to pretty much everyone) that the child’s welfare is prejudiced by delay.  There’s a difficult balance to be struck here.

112. Ryder J held, accepting the Lord Chancellor’s submissions, that “a robust scrutiny” was required of the party’s means, and said that what was a robust scrutiny would depend on the circumstances of the case but “an important consideration …. should be the party’s eligibility for legal aid where that still exists” (§76). He considered that if the party would not qualify for legal aid on the basis of their means, that was a factor that should point very strongly in favour of that party having to pay their full share of the cost of an expert’s report whereas, in contrast, if the party would qualify for legal aid, it may suggest that they should pay less than a full share, although paying nothing at all should be exceptional, bearing in mind that legally aided parties often have to pay a contribution (§77).
113. A particular concern of the Law Society was that the assessment of impecuniosity should not delay the proceedings. They were right to be concerned about that. Section 1(2) CA 1989 (see above) requires the court to have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the child’s welfare. Furthermore, delay in resolving matters is capable, itself, of giving rise to breaches of Convention rights. What has happened in this case amply demonstrates that wrangles over the extent to which an expert’s costs should be met from public funds can introduce huge delay. The proceedings relating to this child were commenced in 2006, the guardian first sought a report in 2008 and the question of the payment of the expert remained unresolved in 2012 when we can see that the debate was impeding a final hearing of the case. It is quite possible that there were other problems as well as the expert’s fees but this is quite an indictment of the system. It leads me to the view that whatever system is operated must be one which is practical and not over technical and which avoids delay wherever possible.
114. The Law Society’s proposal that the child should be directed to obtain the expert evidence in the first instance with the ultimate liability for the expert’s fees being distributed between the parties by means of a costs order later in the proceedings therefore has considerable appeal.
115. The Lord Chancellor challenged it on a number of bases. Some of the arguments raised against the proposal amalgamated the issues of a breach of Convention rights and impecuniosity whereas I have dealt with these separately. Some covered the ground which I have examined when considering whether or not an expert is properly the child’s sole expert. I only reach the question of impecuniosity on the basis that the Lord Chancellor’s condition that the normal order would involve a breach of a party’s Convention rights is satisfied and, as I have explained, in my view there is no third condition of “exceptionality”
116. I sensed that an understandable concern of the Lord Chancellor was that joining the child as a party and using the child’s public funding to pay for an expert would become a widely used device – a back door to public funding for parents who would not otherwise have it – and I think he saw the Law Society’s proposed scheme as a way in which to have all the benefits of a single joint expert without the non-legally aided parties having to bear the cost. He did not, however, go so far as to suggest that only those who would in fact satisfy the financial criteria for legal aid should be treated as impecunious for the present purposes but submitted that eligibility might be a useful starting point and yardstick.
117. Ryder J also saw financial eligibility for legal aid as a relevant factor and I do not disagree. In my view, the Lord Chancellor was right not to argue that satisfying the financial eligibility criteria is a necessary qualification, not least because it may well place the family courts in considerable difficulty if they had to carry out the sort of detailed and technical assessment that the LSC would use to determine financial eligibility. The challenges facing the courts in private law cases in the new post-legal aid regime are evident and they are also working hard to process care cases with expedition. It is difficult to envisage them having the resources to assess a party’s eligibility for legal aid as the LSC would do, without seriously holding up the individual case or prejudicing the rest of their work or both. But in so far as financial eligibility can be ascertained, it must be relevant. If the party in question would not qualify for legal aid, that may count heavily against an argument that they could not pay their full share of the cost of the report whereas, conversely, if they would qualify, then that may suggest that they cannot pay a full share. As Ryder J rightly pointed out, it is not all or nothing. It may be that a party could not pay a full share but could pay something towards the expert’s costs, just as they could be required to pay a contribution towards their legal aid.
118. It is difficult to forecast what financial information will be available to the court and at what stage in the proceedings. There may be cases in which a party has already been assessed for financial eligibility for legal aid and no doubt it would be appropriate to have regard to the outcome of such an assessment in those cases. In some cases, as in the present case, financial information is available because there are or have been ancillary relief proceedings. In other cases, directions will have to be given to secure the necessary information from the parties.
119. The stage at which the court can reach a final determination as to whether a departure from the normal order is required for Convention reasons is likely therefore to vary, depending on the facts. There may be cases in which the decision can be taken before the expert is even instructed, with the parties’ shares of the cost being settled from the outset. There may be others in which that would or may import harmful delay into the proceedings and in which there is no option but to adopt the Law Society’s solution of requiring the guardian to instruct the expert in the first instance, but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. The court would, not, of course, embark on that route without some cogent evidence that the other parties would not be able to pay their way in the instruction.

 

I wouldn’t call that an outright victory for either side – it seems that before a Court decides that a party is impecunious (and thus couldn’t pay an equal share, and thus the report wouldn’t be obtained) it has to decide what information about finances is reasonable to inspect – if they can be obtained swiftly then it would be considered before the expert report is comissioned, if not, then the Court may make an order that the report be paid out of the Child’s public funding, and then remedy that with a later order once the financial information is available.

 

In the individual case, the Court of Appeal decided that it was right that the costs should have been met through the Child’s public funding /legal aid, and that they differed from Ryder J’s decision.

 

For broader cases, the Court of Appeal say this

 

132. I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out.

 

[All of this boils down to a Britney Spears type exhortation -  You want an expert? You want a 16.4 guardian? You want the costs of the expert to be paid by the child's legal aid? You want the court to say you're impecunious?   You better work bitch]

 

 

 

 

 

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.

Equality of arms – D v K and B 2014

 

One of the principles of article 6 of the Human Rights Act (the right to fair trial) is the ‘equality of arms’ – in essence that there should be a level playing field. Of course, there isn’t always – in a big money divorce, the person who has the assets might well be paying for the better lawyer,  sometimes one party will go and get a QC and the other can’t afford it.  Equality of arms was something that concerned a lot of people when the legal aid reforms came in and established that a person making very grave allegations would have the opportunity to get free representation, whereas the person defending themselves against what might be false allegations was very unlikely to get the same treatment.

D v K and B 2014 brings that into sharp focus

http://www.familylawweek.co.uk/site.aspx?i=ed128264

1. An issue arises in private law proceedings concerning B who is three years old. A fact finding hearing has to take place. One of the many serious allegations made by the mother is that she was raped by the father in 2010. The allegation of rape would be central to the fact finding hearing and so a court conducting that hearing would have to decide whether the alleged rape took place. The Father denies that it did. That allegation is not the subject of criminal proceedings.

2. The mother has the benefit of legal aid. The father does not. His application for legal aid has been rejected. This judgment was given on 27th January 2014 with the intention that it should be referred to the Legal Aid Agency. I invited them to reconsider the father’s application for legal aid as a matter of urgency. At the most recent hearing on 12th March I was told that the application had been reconsidered and had been rejected again.

 

This does seem, to me, to be a case where there should be equality of arms – father’s case is not rejected because he is wealthy and can afford to pay, but because of the principle that the person defending the allegations is unlikely to get funding (you need the Legal Aid Agency to decide that it is exceptional and justified)

The Judge outlined why he considered that this was an exceptional case and why public funding would be justified

6. If ever there was exceptional private law litigation then this must be it. I say that for these reasons:

i) The seriousness of the allegations involved.

ii) The fact that if these issues were before a criminal court the Father would be prohibited by statute from cross examining the Mother in person. That is as a result of s34 of the Youth Justice and Criminal Evidence Act 1999.

ii) The allegation of rape is one of a number of serious allegations that are made. Any analysis of that allegation would have to be placed in context. I find it very difficult indeed to envisage how a judge asking questions on behalf of Father would be able to do so in a way that he felt was sufficient.

iv) Fourthly and notwithstanding the provisions of Schedule 10 of the Crime and Courts Act 2013 (which I have considered, although they are not yet in force) taking into account the point that I have made in iii) above and the fact that the judge could not take instructions, I have difficulty in seeing how that statutory provision in Schedule 10 would be perceived as sufficiently meeting the justice of the case.

v) Where allegations of this seriousness arise it is very important that the respondent to the allegation is given advice. That advice cannot be given to him by the judge and could not be given to him by the representative of the guardian.

vi) The issue that arises is of very real importance to the two adults but also to this child. If the Mother’s allegations are substantiated there is a very real prospect that they may prove to be definitive of the relationship between this child and her Father.

vii) In fact finding cases of complexity a judge is expected to give himself full and correct legal directions. It is vital that those legal directions are correct and take account of the positions of both of the parties immediately involved.

viii) Although enquiry might be made of the Bar Pro Bono Unit or indeed of the Attorney General to see whether arrangements might be made for D to have free representation or the Attorney General to act as amicus curiae neither of those solutions presents itself as likely to be available and neither is anywhere near as satisfactory as D having his own representation. I regard it as highly unlikely that either avenue of enquiry would produce representation in any event.  In March this issue was being investigated further.

ix) As to the position of the Guardian’s representative everything that I have said about the position of the judge applies in at least equal measure to the guardian’s solicitor if not more so. The guardian’s statutory role is to promote the welfare of the child. It is no part of the roles of the Guardian or of the children’s solicitor to adopt the case of one party in cross examination or argument. After the fact finding case is resolved it is essential that both parties retain confidence in the guardian and in the institution of CAFCASS. I therefore cannot see that the Guardian or the child’s solicitor could be expected to conduct cross examination on behalf of this Father.

The final point is saying, in very careful terms, that in order for the truth to be determined about these allegations, mother and father would both have to give evidence. Father would be cross-examined by a barrister – a trained professional not emotionally connected to the case (and in this case, I note, a very good and skilful one, who sadly won’t be able to comment on this case).  Mother, however, would be cross-examined by father – leaving him at a disadvantage because there’s not equality of arms, but also making it much more of an ordeal for both of them.

You simply can’t cross-examine on an allegation like this without putting to the mother that her allegations aren’t true, that she has made them up, that they are malicious. You can’t do it without going into some detail. You can do that as gently and sensitively as you can – it is still not a nice experience. If the person asking the questions is the subject of the allegations, then it is ghastly for everyone.  This is why in crime, it isn’t possible to represent yourself on some criminal charges (such as sexual offences)

s34 Youth Justice and Criminal Evidence Act 1999

34 Complainants in proceedings for sexual offences.

No person charged with a sexual offence may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

(a)in connection with that offence, or

(b)in connection with any other offence (of whatever nature) with which that person is charged in the proceedings.

There were damn good reasons for that – and I’d suggest that the same good reasons mean that you want to avoid it if at all possible in family cases too.

Obviously it can’t be that the lawyer brought in to represent the child can do this on father’s behalf – the father isn’t his client. That’s not someone frankly and fearlessly fighting his case for him.

Could the Judge do it? That made the Judge uneasy, and rightly so.

7. I am now going to quote from H v L & R. A similar issue arose in H v L & R [2006] EWHC 3099 (Fam) and Wood J said this at paragraph 24 about the prospect of a Judge conducting questioning of the complainant in a case where there was sexual allegations. “…for my part I feel a profound unease at the thought of conducting such an exercise in the family jurisdiction, whilst not regarding it as impossible. If it falls to a judge to conduct the exercise it should do so only in exceptional circumstances.”

8. I respectfully agree with Wood J and therefore, in January, asked the Legal Aid Agency to think again. As matters now stand, it seems highly unlikely that legal aid will be granted.

Sadly, you may detect from the final sentence that the Judge is not optimistic that this will work. Legal Aid Agency and ‘see reason’ aren’t concepts that go hand in hand.

Legal Aid Agency wasteful and inefficient (also important news about the Pope’s religion of choice)

Re R (Children : Temporary Leave to Remain) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

This was a private law case that really hinged on the fact that parents who were involved in difficult litigation could not agree about the mother taking the children to India on a holiday. The father was concerned that there was a risk that mother would not return from India with the children, and that India not being a Hague Convention country, that would mean a very costly and time consuming process to start litigation in India.

The Court, whilst feeling that mother’s RISK of doing that was relatively low, considered that nontheless there was a risk and the consequences could be very devastating. Within the proceedings therefore, an expert report was ordered by the High Court, determining that it was necessary to resolve the dispute justly and inform the Court. Part of that report was to examine the Indian law to see whether anything could be put in place.  The costs were to be divided equally between the mother and the Guardian’s public funding certificate.

The LAA refused to pay for this, and six months of bureacratic conversation and form-filling took place.

In an attempt to cut through all of this, King J set out in detail in an order why the report was necessary and why the costs were split in that way (rather than 3 ways – mum, dad, Guardian)

    1. I declined to proceed with the hearing as a contested hearing. I listed the application for directions before Mrs Justice Eleanor King as Family Division Liaison Judge for the Midland Circuit. The application came on before Eleanor King J for directions on 28th November. The preamble to her order contains the following:

 

‘And Upon the Court observing that:

a. the expert’s report directed at paragraph 1 of this order is absolutely necessary for the proper determination of this case; this is both the view of the learned Judge and represents settled authority from the Court of Appeal; the case cannot be fairly decided without the expert;

b. the report is appropriately the instruction of the mother and the Children’s guardian; it is not properly the instruction of the father who has already filed evidence in relation to the disputed international legal issue; the proposed report does not, accordingly, ‘support’ the father’s case; rather it is obtained by the mother to meet the case brought by the father, and is necessary for the Children’s Guardian, in order that she can advise the court from a position of informed neutrality.

c. the assertions at (b) above are determinative of the question of whether instruction is shared by the father and would be so whether or not he were publicly funded; as such s.22(4) of the Access to Justice Act 1999 is not activated;

d. any further delay in obtaining the expert report is likely to jeopardise the current hearing dates, engender further costs (including publicly funded costs) and prejudice the interests of the children.’

    1. Eleanor King J went on to order that the mother and the guardian have permission to instruct Professor Martin Lau to provide an expert opinion in relation to the relevant law obtaining in India. She approved his hourly rate (£175 per hour) and capped his fees at £2,100 plus VAT. She directed that the final hearing should take place before me.

 

  1. The Legal Aid Agency again refused to grant authority for the instruction of an expert. There has been no alternative but to determine this application without having the benefit of expert evidence. That is an issue to which I return at the end of this judgment.

 

That didn’t do the trick – as indicated, the Court actually had to determine the case without the expert report that they had already ruled was “necessary” to properly resolve the case.

This is an issue that the Court of Appeal had looked at in another case called Re R

    1. In Re R (A Child) [2013] EWCA Civ 1115 Patten LJ, giving the judgment of the court, repeated a point made in previous cases:

 

’23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.’

 

That’s pretty compelling authority for the use of experts in that scenario – one can’t expect a UK lawyer, or a UK Judge to understand the intricacies of family law in each and every non-Hague Convention country, and it is vital to know what those safeguards might be.

The final paragraph of the Court of Appeal decision in Re R anticipates the problems of funding such expert evidence

’28. Before leaving this case we wish to draw attention to a real difficulty that seems likely to be a feature of future cases where application is made to remove a child temporarily to a non-Hague Convention state. We have already restated the importance of the court having access to clear and reliable expert evidence before being in a position to determine the application. Both parties in the present case are legally aided but counsel have confirmed that, following recent changes to the provision of Legal Aid, public funding will no longer be available to parents in these applications (save where there has been domestic violence). The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person). The questions of how and to whom particular cases are allocated to individual judges are a matter for the President of the Family Division. Our present purpose is not to trespass upon the President’s responsibility but simply to flag up this new potential complication for cases which are already at the most difficult end of the spectrum. In doing so we would simply wish to repeat Thorpe LJ’s exhortation for these cases ordinarily to be dealt with by the judges of the Division.’

 

As can be seen from this case, the Court of Appeal were prescient.

Bellamy J concludes his judgment with a coruscating evaluation of the Legal Aid Agency’s failings in this case, which meant that they in effect defied the orders of High Court Judges. There’s loads of it, and if you’ve ever had to wrestle with the LAA, it warms the cockles of your heart to see them take a kicking.

The Judge opens with this

I return finally to my concerns about the negative, costly and unhelpful impact the Legal Aid Agency (‘LAA’) has had in this case. If this case is at all illustrative of the way the LAA normally discharges its responsibilities then that is deeply troubling. My concern that it might be illustrative of a wider malaise arises not only from anecdotal evidence given to me by solicitors in my role as a Designated Family Judge but also from the observations recently made by Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam).

and then goes on to consider the labyrinthine process

    1. As a result of my order of 18th July giving leave to instruct an expert in Indian law and limiting his fees to £2,500 plus VAT, the mother’s solicitor sent the LAA an application for prior authority in LAA Form APP8. Form APP8, be it noted, is a lengthy (11 page) complex form which needs to be completed with care. Failure to complete it properly is almost certain to lead to the application being refused. Completion of this form is, of itself, a time consuming task.

 

    1. On 13th August the LAA wrote to the mother’s solicitor refusing to grant prior authority. The letter is clearly a standard letter. It sets out five reasons for refusal. In summary, these are, (i) the estimate of the expert’s fees is excessive, (ii) no alternative quotes have been obtained, (iii) there is insufficient breakdown of the costs to be incurred, (iv) the expert’s costs should be borne by or shared with the other party, (v) the application does not appear to fall within the regulations. The letter ends by saying, ‘since the introduction of the 2010 Standard Civil contract and the 2012 Family Contract there is no right of appeal’.

 

    1. On 2nd September I was asked to reconsider my decision that the cost of the expert should be borne solely by the mother. I declined. The mother’s solicitor made a second application to the LAA, again in Form APP8. That application was again refused. There followed an exchange of e-mails between the solicitor and the LAA which were discouraging.

 

    1. I have seen the APP8s that were submitted. They appear to me to have been properly and adequately completed and to have been supported by relevant documentation.

 

  1. As I noted earlier, on 28th November there was a hearing before Mrs Justice Eleanor King in which she gave new directions for the instruction of an expert. She ordered that the expert’s costs should be borne by the mother and the children’s guardian, and explained why s.22(4) Access to Justice Act 1999 did not apply. She also had a telephone conversation and an e-mail exchange with Michael Rimer, Head of Litigation Team and Senior Legal Adviser with the LAA. Mr Rimer is the agreed point of contact between the judiciary and the LAA in cases where there are funding difficulties. If that dialogue led to quiet confidence that progress could be made, that confidence was misplaced.

 

(I particularly like that last line)

and finally wraps up with this  (having recounted some spectacular missing the point emails from various workers at the LAA

    1. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.

 

    1. There is a further point which follows on from that last point. On 28th November Mrs Justice Eleanor King gave clear, detailed case management directions in respect of expert evidence and even went so far as to set out her reasons for not ordering the father to pay a proportionate share of the expert’s fees. Her case management directions on this issue have effectively been overridden by the LAA. That is simply unacceptable.

 

  1. In light of my criticisms of the LAA I direct that the solicitor for the Children’s Guardian shall forthwith forward a copy of this judgment to the Chief Executive of the LAA and order that he shall respond to it in writing within 28 days.

 

 

I expressed some doubt via Twitter that the response in writing would (a) ever be received and (b) ever be published, but I am reassured on both points. Once it is published in anonymised form, I will gladly report on it.

There are some “costs against third party” decisions from Courts, and it is clear that expenditure did get incurred both for the parties and the Court – it seems to me that it is legally possible to make an order for costs against the LAA.  It does raise the obvious issue with the parties that if they are being paid by legal aid, then the LAA are ALREADY paying their costs, so a costs order there does nothing at all. But it might be possible to calculate the time wasted by the High Court judges (who are not a free, or inexpensive resource) and decide that the LAA should recompense HMCS for that waste of time. If the father was paying privately for the litigation (and I simply don’t know the answer to that) then I would imagine that the wasted costs bill for that would make the £2,100 the LAA were quibbling about pale in comparison.

 

There’s Norway you are serious about a costs order

 

The Court of Appeal in Re S (Children) 2014 set aside another Care Order and Placement Order and sent the case back for re-hearing because the judgment was not sufficiently rigorous and “B-S compliant”. No great surprise there – it is something of a novelty these days when the Court of Appeal uphold a judge who makes these orders. What is a bit peculiar is making an order that the LA pay the appellants legal costs, nearly fourteen thousand pounds.

http://www.bailii.org/ew/cases/EWCA/Civ/2014/135.html

You may recall that the Supreme Court in Re T *dealt with the temptation to make Local Authorities pay costs to parties who won their case but had to pay for their own legal advice, rather than getting it for free, and were very plain that in the absence of bad conduct by the Local Authority, Courts should not make costs orders against Local Authorities just because they have money and the other side had bills.

 

* http://suesspiciousminds.com/2012/08/07/when-they-begin-to-intervene/   is the Re T blog

Why is this one, which involves a series of complex international issues and the father moving to Norway to live permanently during the hearing, different to Re T? Well, I can’t work out why not, reading the judgment.

There was an appeal recently  (Re C 2014 http://www.bailii.org/ew/cases/EWCA/Civ/2014/70.html ) where a Local Authority got stung for costs, but in that one it was chiefly as a result of the LA counsel having a series of peculiar email exchanges with the judge at first instance, not being properly frank with the High Court judge during their own appeal and not having properly accepted that the evidence at first instance had sunk their case. That, in the view of the Court of Appeal had amounted to bad conduct, and thus a costs order could legitimately be made

http://suesspiciousminds.com/2014/02/06/a-word-in-your-shell-like/

 

In this one though, the judge at first instance is criticised for not giving full enough reasons for refusing further assessment of the father and for not robustly tackling the Re B-S issues in the judgment. That’s not the fault of the Local Authority, that’s due to the Judge.

    1. The father has funded this appeal privately and seeks his costs in the sum of £13,787.70. He does not aver that the local authority have engaged in reprehensible behaviour or took an unreasonable stance in the hearing at first instance to justify a departure from the normal rule that costs are not awarded in children’s cases. However, Mr Bainham argues that the judgment in Re T (Children) [2012] UKSC 36 to this effect is directed at first instance hearings where public policy considerations militate against any possible financial deterrent to an authority taxed with the responsibility of protecting children from pursuing proceedings. Likewise, in the case of an appeal neither should a parent be deterred from challenging decisions which impact upon the most crucial of human relationships. Ms Markham argues the case is not so restricted and resists the application.

 

    1. I consider the question of costs in the appeal to be of a discrete category and the discretion of the Court broad. Re T is distinguishable for the reasons argued by Mr Bainham.

 

  1. In this case, Ms Markham has been forced to recognise the deficiencies of the judgment of the lower court but nevertheless has resisted the appeal. In the circumstances of the father’s limited means, already decreased by his travel from Norway to the United Kingdom to exercise contact, I would grant his application and order costs in the sum of £13,787.70.

 

It is that difficult sum which means that the costs of taking this case to the Supreme Court to correct that decision (which I respectfully suggest is wrong)  dwarf the amount ordered, so the decision will only be appealed if the LA involved decide that there’s an issue of principle involved.  As a long-standing advisor to Local Authorities, I know well that whilst someone at the coalface will say “It’s not the money, it’s the principle of the thing, let’s appeal”, someone higher up the chain of command who makes that decision will say “It’s not the principle, it’s the money, let it go”.   I can see why the Court of Appeal made that decision – the father had won his appeal and yet was out of pocket, Local Authorities (in the eyes of the Courts) have bottomless pockets – job done; but I think it flies in the face of Re T.

I hope they do appeal, and I think they would win; but I suspect pragmatism will win out over the principle of the thing.

If father incurs costs as a result of a flawed judgment, why aren’t his costs paid for by the Court service?  Don’t ever see the Court of Appeal deciding that…

 

The other unusual element here is the Court of Appeal suggestion that the Lucas direction (just because a person lies about X, doesn’t mean that they are lying about the major issue in the case) ought to be expanded

It has become de rigueur for a trial judge expressly to articulate their self direction in accordance with R v Lucas [1981] QB 720 in fact finding hearings. That is, the significance that may or may not attach to the lies told by a party in relation to the injury/ behaviour in question. There is none such in this judgment which deals with outcome. A specific reference to the same is unnecessary but I do consider that it was unrealistic for the judge, and the professionals not to have appraised the same exercise in the context of the non disclosure and/or deceit in question. The fact of a parent’s non disclosure or deceit is not necessarily determinative of parenting capacity or, depending on the circumstances, an ability to co-operate with the authorities.

You have been warned.

[The list of things that need to go into a final judgment now to make it bullet-proof is swelling - good news for those transcription firms that are charging by the page]

Can one simultaneously be baffled and pleased?

It appears so. The MoJ have published a consultation on Court fees. Long time readers of this blog will know my rather low opinion of consultations  (they are a way of breaking bad news to people whilst pretending that “your view can make a difference”)

 

And any consultation on Court fees normally means one thing – they’re going up, stand still whilst the MoJ mugs you. It is so tiresome for the MOJ if you wriggle about whilst they go through your pockets and wallet.

 

This one, it appears not

 

https://consult.justice.gov.uk/digital-communications/court-fees-proposals-for-reform

 

 

Please send your response by 21/01/14 to:

Graeme Cummings Ministry of Justice Law and Access to Justice Group Post Point 4.38 102 Petty France London SW1H 9AJ

Tel: (020) 3334 4938

Fax: (020) 3334 2233

Email: mojfeespolicy@justice.gsi.gov.uk

 

[Might actually be worth doing that, this time]

 

 

Here are some good news items from it  (good news, from an MoJ consultation on fee changes, you can see why I am baffled)

 

Removing the fee from Non-molestation or Occupation order applications (currently £75).  Given what a palaver getting the fee-exemption was, many people ended up just paying the fee, and it always seemed wrong to me that people should have to pay a fee to get protection from domestic violence.

 

The fee for any application in Children Act cases (other than s31) is now just £215, same across the board. No more looking up in a chart to try to work out just what the bloody fee is for those applications that you hardly ever make. It’s just a standard fee across the board. That’s gone up a bit (£35) for most of the applications.

 

And here’s the odd one  – you may recall that the fee for issuing care proceedings went up several thousand per cent – from about £175 to over £5,000, and went up again in April.

The lie / spin at the time was that this was completely cost-neutral and would be covered by central government funding and that it was not an attempt to artificially depress care proceedings or provide a financial incentive for Local Authorities not to place cases before the Court.  You may recall a judicial review that didn’t succeed, and then all the various reports saying “these fees should be abolished”.   If the fees ever were cost-neutral, which almost anyone in local government would dispute, they certainly aren’t now, as central funding has been salami sliced over many years. Those court fees represent a significant drain on public authorities limited resources.   

 

The current arrangement is that the LA pay the court a fee of £3,320 up front, and then a further fee of £2,155 if there’s a final hearing.

 

Well, I immediately look for that section, to see how much care proceeding court fees are going to go up by, and see the proposals are :-

 

Flat fee on issue to change from £3,320 to £2,000   (yes, that’s actually gone DOWN)

 

Fee for final hearing to change from £2,155 to £0   (yes, that’s actually nothing)

 

This is something of a climb-down – I mean, it’s not the recommendation of the Laming report, the Plowden report or the Family Justice Review (all of which the Government said in advance they would implement in full) that the fees be scrapped entirely, but it’s a START.

 I couldn’t find anything within the consultation document that was a rationale for this reduction, so I went to the public attitude survey here

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/262917/public-attitudes-civil-family-court-fees.pdf

 in which people were surveyed about court fees and given some hypothetical examples to set fees for. (There are some interesting things, more useful for private law, about public attitudes towards fairness of the court system)

 

[I did this exercise  because if I see a gift horse, the first thing I DO is look in its mouth. It is nonsensical advice to say “Don’t look a gift horse in the mouth”  - the story comes from the Trojan War, and OF COURSE the Trojans should have been wary about the gift horse…]

 

Anyway, there’s nothing in that either.  In any event, thank you MoJ for a consultation document that made me happy rather than miserable. Let’s see if it translates into action.

 

(That’s potentially a lot of money that can be spent on services to help and support troubled families, so it is not just good news for Local Authorities, but for real people too)

Death by a thousand cuts – expert fees take another hit

 

You might remember some time back that there was a consultation on a proposal to reduce expert fees further from the drastic cuts brought into play in October 2011   (I say consultation, what I mean of course is, breaking the news to experts that this was definitely going to happen and giving them a few months notice whilst pretending that no decisions had yet been made)

 

As ever with a Government agency, finding the document that actually publishes the new rates is a forensic ferreting exercise all of its own, but this is it, below

 

http://www.justice.gov.uk/downloads/legal-aid/funding-code/remuneration-of-expert-witnesses-guidance.PDF

 

These rates now come in to all cases with a start date after December 2013   (so it is worth knowing that an expert who is INSTRUCTED in January 2014, might get paid at the old rates if the CASE itself started before December 2013. If you’re an expert, that might well be a question worth asking)

 

 

Picking out the ones most common in care proceedings  (these are non-London rates, some of the London ones are slightly different)

 

[When I say 2011 rate, that was the rate from Oct 2011 until April 2013, when there was an interim cut]

 

Child psychiatrist now £108 per hour  [the rate in 2011 was £135]

 

Child psychologist £100.80 per hour [the rate in 2011 was £126]

 

DNA testing  £252 for the sample and testing, £72 for the report  [2011 was £315 and £90]

 

Interpreter £28 per hour   [2011 was £32]

 

Neurologist £122.40 per hour [2011 was £153]

 

Paediatrician £108 per hour            [2011 was £135]

 

Psychiatrist £108 per hour               [2011 was £135]

 

Psychologist £93.60 per hour          [2011 was £117]

 

Risk assessment expert £50.40 per hour [2011 was £63]

 

 

 

If you imagine a ballpark of the costs having been cut by 33% in two years (having already been cut down extensively in the 2011 changes) you’d be about right.

 

The new guidance is silent on social work costs, which have historically been at £30 per hour.  Let’s take that to mean that ISWs can still be paid at £30 an hour, which is good news, because applying the 33% cut given to other experts would mean ISWs working at £20 an hour, and there really would be none left at that rate.

“Hope your child enjoyed their stay, now if you could just settle your bill, please”

 

Or, on an Alan Partridge vibe “Cashback!”  (Have been hitting the Partridge in readiness for the film, apologies)

The legal implications of the mooted proposals from Worcestershire to charge parents for voluntary foster care.

 

Worcestershire are of course, only consulting on the scheme at the moment, and haven’t made any decisions; but the idea in a nutshell is that where a parent can’t look after a child and the child goes into voluntary foster care, the parent would be charged by Worcestershire to recover the costs of this (subject to the parents means)

 

http://www.communitycare.co.uk/articles/14/08/2013/119417/council-defends-controversial-plans-to-charge-parents-whose-children-go-into-care.htm

 

 

and here

 

http://www.theguardian.com/society/2013/aug/13/children-charged-social-care-worchestershire?INTCMP=SRCH

 

 

There are, as we know, two distinct categories of services that a Local Authority provides for children in need

 

  1. Section 17 services to meet their needs
  2. Section 20 accommodation of children who have to live away from their families for whatever reason.

 

Most lawyers are dimly aware that the Children Act has in it tucked away the POWER to make charges for section 20 placements, but the Act actually goes further than that.

 

Surprisingly, despite all the vitriol that Worcestershire’s mooted policy has caused them, they are actually just complying with the Children Act 1989

 

 

     Schedule 2 para   21. —(1) Where a local authority are looking after a child(other than in the cases mentioned in sub-paragraph(7)) they shall consider whether they should recover contributions towards the child’s maintenance from any person liable to contribute(“a contributor”)

See that word ‘shall’ there? That means it is a mandatory duty. The Local Authority are legally obliged to consider whether to recover financial contributions from a parent where the child is in voluntary foster care.  (para 21 (7) prohibits doing so where the child is in compulsory foster care i.e an interim care order, for obvious reasons). They HAVE to consider whether they should try to recover the costs from the parent.

 

What Worcestershire’s maligned policy goes on to say is that such charges wouldn’t be imposed on any parent in receipt of benefits  (which the Act already says in Schedule 2 para 21(4) ) and that they would only ever recover those financial contributions where it is reasonable to do so (which the Act already says in Schedule 2 para 21 (2))

 

So Worcestershire could simply have told everyone that their intention was to comply with their duties under the Children Act 1989.  Job done.

 

Of course, although those duties exist, they are one that most authorities overlook, just as (cough cough) many of the OTHER duties in Schedule 2 get overlooked from time to time.

 

This is really more of a corporate decision that where a parent is working and has financial means, that the Local Authority would genuinely look at the issue of charging them for accommodating their children  i.e they would ACTUALLY give it consideration under Schedule 2 para 21;  whereas most Local Authorities, if they have thought about para 21 at all, it is that they would not ever try to recover such contributions.

 

One can see why, as soon as one looks at para 22’s provisions as to how such charges would actually come about

 

 

      22. —(1) Contributions towards a child’s maintenance may only be recovered if the local authority have served a notice(“a contribution notice”) on the contributor specifying—

 (a)  the weekly sum which they consider that he should contribute; and

 (b)  arrangements for payment.

(2)  The contribution notice must be in writing and dated.

(3)  Arrangements for payment shall, in particular, include—

 (a)  the date on which liability to contribute begins(which must not be earlier than the date of the notice);

 (b)  the date on which liability under the notice will end(if the child has not before that date ceased to be looked after by the authority); and

 (c)  the date on which the first payment is to be made.

 

 

Para 22 also caps the contributions to be no more than the actual cost of foster care.  That of course, prevents the Local Authority blessed with affluent parents with stroppy teenagers from propping up their budgets by charging Mr and Mrs Moneybags £10,000 a week to look after young Tony Moneybags.

 

 

Okay, well having :-

 

(a)  Found a parent who has some means and isn’t on benefits, whose child is voluntarily accommodated

(b)  Decided whether it is reasonable to ask them for a contribution

(c)  Set that amount at what it is reasonable for them to pay – that being no more than the foster care allowance

(d)  Drawn up a Contribution Notice

 

 

What happens when the parent doesn’t pay the money?

 

Well, para 23 kicks in

 

23. —(1) Where a contributor has been served with a contribution notice and has—

 (a)  failed to reach any agreement with the local authority as mentioned in paragraph 22(7) within the period of one month beginning with the day on which the contribution notice was served; or

 (b)  served a notice under paragraph 22(8) withdrawing his agreement,

the authority may apply to the court for an order under this paragraph.

(2)  On such an application the court may make an order(“a contribution order”) requiring the contributor to contribute a weekly sum towards the child’s maintenance in accordance with arrangements for payment specified by the court.

(3)  A contribution order—

 (a)  shall not specify a weekly sum greater than that specified in the contribution notice; and

 (b)  shall be made with due regard to the contributor’s means.

(4)  A contribution order shall not—

 (a)  take effect before the date specified in the contribution notice; or

 (b)  have effect while the contributor is not liable to contribute(by virtue of paragraph 21); or

(c)     remain in force after the child has ceased to be looked after by the authority who obtained the order.

 

 

See that last little paragraph that I’ve underlined? That means that the order that the Court can make (but won’t) doesn’t have any effect once the child stops being looked after.

 

So what, you say?

 

Well, once you realise that the Local Authority HAVE to stop accommodating a child voluntarily once the parent objects (s20(7) , but that they HAVE to provide accommodation for any child who meets the criteria in s20(1), which includes “the person who has been caring for him being prevented (whether or not permanently or for whatever reason) from providing him with suitable accommodation”

 

(Lightbulb)

 

It is pretty clear that the wealthy parent, served with a contribution notice, who ignores it, and is then taken to court, can simply declare as soon as the Contribution Order is made that they object to the child being accommodated.

 

That ends the accommodation and the Contribution Order.  The parent can then notify the LA that the child needs to be voluntarily accommodated all over again.

 

And note that the Contribution Order doesn’t compel any payments HIGHER than the original weekly amount in the contribution notice, so it doesn’t provide for recovery of the previous weeks missed. (that’s the net effect of reg 23(3) (a) )

 

In those circumstances, the Contribution Order will net the Local Authority not one shiny penny, and will lose them all the legal fees and costs in the meantime. 

 

 

So, just running things through in my own mind :-

 

  • A policy of charging middle to high income parents for voluntarily accommodating children would be politically unpopular

 

  • It would garner very negative publicity (as we have seen, just saying that you are considering it makes things get ugly)

 

  • Probably only covers a small proportion of the children who are voluntarily looked after in any event 
  • Has the possibility of discouraging parents who are not coping temporarily and need a break from seeking that help

 

  • It almost certainly inhibits the working relationship between the Local Authority and the parent aimed at fixing the problems so that the child could go home.

 

  • It would be administratively expensive – someone has to do financial assessments (and how do you get a parent to tell you their income anyway? What’s in it for the wealthy parent to tell you?), someone has to draw up Contribution Notices, someone has to collect the money and keep track of it

 

  • Any attempt to enforce it would be incredibly vulnerable to a side-step using the interplay of s20(7) and para 24 (4) (c), as outlined above

 

  • It would be unlikely to actually recoup any income

 

 

 So, ending with Alan Partridge again, I’m not sure that this policy is “back of the net” material

 

Of course, all Worcestershire have done so far is remind themselves that they have a statutory duty to CONSIDER this and all that they have done is complied with their duties under the Children Act 1989.

“Man of Straw and costs”

Making a costs order in private law proceedings against a man with no ability to pay – the Court of Appeal decision in Re G (Children) 2013

http://familylawhub.co.uk/default.aspx?i=ce3352

Although the appeal was from a decision made by a Court local to me, I have had no involvement of any kind in the case.

The proceedings related to long-running private law proceedings, and the Court findings in relation to father’s conduct were pretty scathing

Within the proceedings he had made very serious but utterly groundless allegations against the mother, which obviously took time to resolve and were unpleasant.  He raised an entirely false allegation of racism against the NYAS worker who prepared a report in the case (raising this only after the report was received and unfavourable to him) , had effectively been using the court proceedings to harass and intimidate the mother, had made groundless complaints about her to the police

in short she considered that the length of the proceedings, and the fact they had been driven to consider matters of detail at every turn, had been caused by the father’s actions and that he was engaged in a course of action designed to manipulate and harass the mother by using the proceedings as his weapon of choice.

 

It is not altogether unsurprising in that context that the father lost his case, and was made subject to a section 91(14) order exercising judicial control over his ability to make further applications.

The Court of Appeal were entirely satisfied that all of this was justified by the findings that the Court had made, having heard the evidence.

The next issue was however, the Judge having made a costs order against the father. The mother was publicly funded, the father acting as a litigant in person, and having no income.

This was the portion of the original judgment dealing with that application.

  • “I am dealing with an application for costs. It is made by the mother against the father for the costs which she has incurred with the benefit of public funding in this protracted litigation which began life in October 2009. Mr Bergin has stressed that this is not an application made with any pleasure by the mother. It is not therefore a vindictive application. But Mr Bergin properly has to be mindful of the public purse, and the Legal Services Commission in funding the mother’s litigation has been put to enormous expense. So I look at what was behind all of this.

73. The father says he should not have to pay anything. He tells me that notwithstanding the judgment, which has come down heavily against him in terms of being untruthful, he maintains that he has told the truth all the way through and has simply wanted to do right by his children and see his children, and he feels that he had not alternative but to bring the application. I reject the father’s submissions about what prompted the litigation. It is almost unbelievable that in August 2009 this father had an order by consent that guaranteed him regular contact with his children. He says he had to apply in October 2009 because had had lost his job and did not have any money. In my judgment, it was not necessary to launch these proceedings. But beyond that the father has used these proceedings as a vehicle for getting at the mother. At every step of the way he has criticized her and has made allegations about her and he has completely disregarded the interests of the children.

74. I am conscious that the father says he is of limited means. He lives in rented accommodation and he is in receipt of statutory benefits. So it may be that any order for costs could never be enforced. But the question of enforceability is separate. I am satisfied that the case brought by the father had absolutely had no merit. The application followed on a compendious order that gave the father everything he wanted bar calling it a shared residence order. In the three years since his application the father has gone out of his way to make spurious allegations which the court and others have had to investigate and he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable. I am satisfied that, unusual though it is, an order for costs is entirely appropriate and the order will be that the father shall pay the costs of the mother throughout this application from the date of issue. Those costs are to be subject to a detailed assessment and the question of enforcement of costs will be determined separately.”

And this is what the Court of Appeal say about the judicial determination that a costs order was appropriate

  • 15. It is apparent to me, in reading those paragraphs, that the judge had three basic reasons in mind in making the costs order that she did. First of all, towards the end of paragraph 73, she finds that it was “not necessary to launch these proceedings”. Secondly, she finds that the father has “used these proceedings as a vehicle for getting at the mother.” In the same context, later in paragraph 74, she finds that “he has abused the court process by using it as a vehicle to make the mother feel insecure and vulnerable.” Thirdly, she finds that there was “absolutely no merit” in the case brought by the father. So despite noting, as she does, that he has limited means, lives in rented accommodation, and is in receipt of statutory benefits, and it may be that the order for costs could never be enforced, she nevertheless goes on to make the order that is now the subject of this appeal. Although the judge does not refer to the case-law that I have just made reference to, my reading of her judgment is that it sits plainly within the jurisdiction that Hale LJ described, and which has been endorsed by courts subsequently. This was a finding by the judge that the father had acted unreasonably both in starting the proceedings, but more importantly, in the way he had conducted himself throughout the proceedings. It therefore is plain to me that she, as a matter of law, was justified in considering an order for costs, and I can see no error in her exercise of discretion in deciding to deploy that jurisdiction and make an order in this case.

The issue on which the father appealed was fundamentally the principle of making a costs order against a party with no ability to pay.  Of course, the conclusions that the Judge made at paragraph 74 were that the costs were to be the subject of detailed assessment, and that the issue of enforcement of any costs order was an entirely separate matter to the principle of a costs order being made.  (The fact that the costs order was made did not mean that the Legal Aid Agency would be trying to get the father to make payments out of his benefits, and a consideration of his means would be done at any later stage where the LAA did wish to enforce the order)

The Court of Appeal entirely agreed with the judicial approach

  • 17. Against that background, despite hearing what the father says about the particular incidents, in my view the father cannot succeed in his appeal on the first limb, which is that the judge should not have made an order for costs against him in any event. The second limb in the appeal is that the judge failed to take account of his means and failed to take account of the level of costs that he would be expected to pay. He says, and I readily again accept what he says, that no costs schedule was produced by the lawyers acting for the mother for him to see what it was that he was being asked to pay and for the judge to see what it was he was being asked to pay. He is right to raise that matter with us. He also points out the burden that this costs order would have upon him were it ever to be enforced against him. Given his current means, it would be devastating for him, and he says that he could never get his life back on track if he had to face a bill of this sort. He says that would not only have an impact on him but also, either indirectly or directly, adversely affect his ability to support the children and in other ways that relate to the children’s welfare.

18. Insofar as the absence of a costs schedule is concerned, the judge provided for that circumstance, because her order is plain that there has to be “a detailed assessment of her costs” before the costs order becomes a reality. It therefore is the case that there has to be a process of what in the old days would be called “taxation” of the mother’s costs, adjudicated upon it if necessary, to decide what the reasonable level of costs should be. So the only question is whether we should in some way accept the steer given by Thorpe LJ in granting permission to appeal in requiring the judge’s order to include some phrase such as “not to be enforced without leave”. I am not attracted by that course. The detailed assessment provisions will protect the father from facing a bill which is unreasonable in terms of the elements of the costs schedule itself. The question of enforcement will be for any subsequent court to deal with, on the facts as they then are, as would be the case in any ordinary civil litigation. I therefore do not agree with the view that Thorpe LJ had apparently formed at the permission stage that the judge was in error in not putting in a phrase about enforcement.

19. For the reasons that I have therefore variously given, I consider that the father’s appeal should be dismissed.

So, be warned, egregiously bad litigation conduct which results in hearings and legal costs for the other side can still result in a costs order being made, even where the party is a ‘man of straw’ with no means.  Having no means does not enable the party to engage in bad litigation conduct with impunity.

Whether the order will ever be enforced is another matter, but of course, if the father’s financial circumstances change so that he has means with which to pay the order  (a job, an inheritance, a lottery win or such) the costs order could be legitimately enforced.

So whether you are in the process of advising a person who is carrying on this way that there are risks associated with it, or advising a person on the receiving end of it about the possibility of obtaining a costs order, the case is an important one to be aware of.

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