RSS Feed

Category Archives: costs

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.

Making costs orders against a non-party – is that the sound of floodgates opening?

The High Court have determined in Re HB, PB and London Borough of Croydon 2013, that a Court may legitimately make an order for wasted costs against an agency who was not a party to proceedings.

 

In this case, here http://www.bailii.org/ew/cases/EWHC/Fam/2013/1956.html  the wasted costs order was against a Local Authority who had been directed to produce a section 37 report in private law proceedings.  (Section 37 reports are where the Court look at a private law case and think “Hmm, this looks risky, the LA ought to investigate this and see if this case really needs to be public law care proceedings, instead of private law proceedings”)

 

The allegations in the case were pretty unusual

 

  1. 6.       i) Over a number of years, the mother had falsely led the father (and the paternal family) to believe that she was suffering from cancer of the womb, vagina and brain, and had tumours behind her eye and neck, and that (by early 2012) she only had a number of months to live;

ii) From early in OB’s life, the mother had falsely led the father (and the paternal family) to believe that OB was suffering from a number of serious medical conditions, including untreatable stomach and bowel problems which may require removal of his bowel and the application of a colostomy pouch;

iii) From early in OB’s life, the mother had falsely led the father and the paternal family to believe that OB was lactose intolerant and allergic to over 4,000 foods; she asserted that doctors had advised that OB should not eat solid food;

iv) That the mother had led the father and the paternal grandmother and the paternal aunt to believe that OB may ultimately require a feeding tube and that the paternal grandmother had been informed that OB may die from his medical conditions.

 

If those allegations were made out, of course there would be considerable concern about the risks posed by mother to the child and her care of the child.  (I pause a moment to question how a social worker alone is supposed to identify whether those concerns are made out…)

 

The section 37 report was directed and was five weeks late. Not ideal, but not the most delayed s37 report I’ve ever seen, not by a long chalk.

 

A ‘final hearing’ took place, at which a further section 37 report was directed. That report was four weeks late.

 

The LA did not seek to commence proceedings, and the social worker was pretty much put to the sword in evidence in the second ‘final’ hearing

 

  1. At the hearing on 10 December 2012, the evidence from the social worker, Mrs. O, contained the following exchanges:

Q:… the father says that the mother told him and family members that OB was unwell/that she exaggerated his illness?

A: Yes but I was given this case to look at contact and residence, and I went on the information in the GP records.

….

Q: … if it is the case that what the father says is true … then the mother was fabricating illness in OB?

A: Yes.

Q: And that would tend to indicate a risk of harm to OB wouldn’t it?

A: But the mother said that she did not say this, and the medical notes made no reference to fabricated illness.

Q: …If what the father says is true do you agree that this puts OB at risk of significant harm.

A: If it is true.

Q: …why do you say that the threshold is not met for the LA to apply for an interim care order?

A: I don’t know, the legal team would know. At the time we did not consider that OB was at significant risk of harm.

Q: What is the threshold for an ICO

A: (long pause) I would need to take legal advice.

Q: If findings are made against the mother at the end of the hearing what would your position be?

A: I would need to discuss that with the legal team.

Q: If the Judge finds the father’s allegations to be true, do you agree that OB would be at risk of significant harm?

A: I would need to discuss this with the legal team.

Q: If the court finds the father’s allegations to be true what would your recommendation be about contact and residence?

A: I could not make a decision without consulting with members of the legal team and my manager.

Q: So there has been no discussion about this so far?

A: No.

Q: When could you discuss this?

A: Tomorrow perhaps.

Q: Did you feel uneasy about the allegations raised by the father against the mother?

A: No I did not feel uneasy but it seemed that the father’s allegations were serious and I do not know why he would have made such reports against mother if they were not true, so I was confused.

  1. The social worker further informed the court of the following:

i) that she had had no training in relation to cases of fabricated illness;

ii) that she was unaware of the DCSF 2008 Guidelines, or the ‘Incredibly Caring Programme‘;

iii) that she had not spoken to OB’s General Practitioner;

iv) she had not visited OB’s school, nor enquired of the school what was known about OB’s health (“A: That was not my role. It was not relevant at the time…“; later: “we only visit school when carrying out a section 47 investigation“);

v) that she had not spoken to extended family members (even though the mother had made complaint to them of illness in herself and the child);

vi) that she knew that the child’s attendance record at school was 69.4% in the relevant period (A: “if a child is sick, he’s sick“), indicating that this attendance record was “ok“;

vii) as indicated above, that she did not know the test for an interim care order;

and

viii) that she had no experience as a qualified practitioner in this type of case.

 

 

To be fair to this social worker, none of the workers in her team had any experience of cases in relation to fabricated illness. Whilst they are pretty common in the rarefied air of the High Court, most Local Authorities go nowhere near them anymore – they are pretty toxic cases to run, post Cannings.

 

It didn’t seem to me massively unreasonable for Croydon to take the view that the allegations were being litigated in any event, that the Court was seized of the matter and that the right time to consider whether to issue care proceedings would be after the Court concluded a finding of fact hearing. (which, I note, still hadn’t happened, some eight months after father first raised the allegations of fabricated illness). The real issue with the s37 report is whether the LA should have been in the driving seat for that finding of fact hearing by issuing care proceedings. The Court clearly wanted them to be, but they didn’t seek to.

 

 

The High Court found that the failure of the Local Authority to ensure that the social worker who was dealing with a case of allegations of fabricated illness had any training as to that sort of case, knowledge of the key guidance or to seek legal advice.

 

  1. It follows from my findings above (and the concessions made), that the Local Authority failed to follow the DCSF Guidance; this is in itself a serious failing. In this regard, I reproduce and adopt for the purposes of this judgment the comments of Macfarlane J (as he then was) in Re X (Emergency Protection Orders) [2006] 2 FLR 701, generally at §67-§89, but in particular:

“[82] Given the work that has gone into preparing authoritative national and local guidance upon cases of induced or fabricated illness, the court is entitled to expect that when a social work team manager asserts in evidence that this is a case of ‘Munchausen’s syndrome by proxy’ or ‘factitious illness syndrome’ (depending on which note of evidence is correct) the social work team has acted in accordance with the guidance and that the assertion being made is backed up by paediatric opinion.”

  1. The comments of McFarlane J are just as relevant, in my judgment, whether it is the Local Authority which is making the assertion of fabricated illness, or (as in the instant case), asserting that to the contrary there are no safeguarding concerns in a case where such allegations have been raised.

 

 

So, the Court found that the s37 report was deficient, and that the costs of the hearing that took place were at least in part a result of those deficiencies.

 

The next leap is to assert that the Court has jurisdiction to make cost orders against an agency who is not a party to those proceedings.  The High Court decided that the agency responsible for a section 37 report is “closely connected” with the proceedings, and thus the existing caselaw (from civil cases and one family case relating to experts) could justify a costs order

 

 

  1. I regard a local authority in a private law case in which a section 37 direction has been given as being sufficiently “closely connected” with the litigation to justify the order; by such a direction the court is expressly inviting consideration of the issuing of public law proceedings. It should be noted that when a section 37 order is made, the court also has the power (if the relevant ‘threshold’ is established under section 38(2)) to make an interim care order: see section 38(1)(b). Although this did not happen here, this power illustrates in my judgment the extent to which the court can, if it considers it appropriate, draw a local authority directly into private law process of this kind and underlines its ‘close connection’ with the subject matter of the proceedings.
  1. My conclusion on this aspect (§59 above) is amply justified by reference to other situations where ‘non-parties’ have been deemed to be ‘closely connected’ to the litigation, including insurers (see Palmer v (1) MIB; (2) PZ Products; (3) Royal & Sun Alliance [2008] EWCA Civ 46); directors (Secretary of State for Trade and Industry v Backhouse [2001] EWCA Civ 67 & Goodwood Recoveries Ltd v Breen: Breen v Slater [2005] EWCA Civ 414); liquidators and receivers (Metalloy Supplies Ltd (in liquidation) v MA (UK) Ltd [1997] 1 All ER 418, CA & Dolphin Quays Developments Ltd (In Administrative and Fixed Charge Receivership) v Mills [2007] EWHC 1180 (Ch)); tribunals (see Providence Capitol Trustees Ltd v Ayres [1996] 4 All ER 760, ChD), and the Legal Aid Board (now Legal Aid Agency) (see Kelly v South Manchester Health Authority [1997] All ER 274).
  1. In this respect, Mr Jarmain has drawn my specific attention to the decision of Peter Smith J in Phillips v Symes [2004] EWHC 2330 in which it was held that the court had power to make a costs order against a non-party expert witness. Peter Smith J had held that:

It seems to me that in the administration of justice, especially… it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his evidence causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court…

… The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice” [§94-§98]

  1. In my judgment Phillips v Symes survives (indeed is fortified by) consideration of similar (i.e. immunity) issues in Jones v Kaney [2011] UKSC 13.

 

 

Whilst I think Croydon were a bit unlucky in this case (effectively what had happened in reality was that the s37 request had just gone into a pile with all the other s37 requests, were allocated out and the worker did the report in the same way as any other one would have been done, rather than the LA recognising that this was a veritable hot potato and that a legal planning meeting to discuss the case should have been arranged)  I can see an argument that this was an exceptional case.

 

My concern would be Courts starting to dish out costs orders for late section 37 reports.

 

I am also interested, not least because of the time pressures that the Courts will be under, whether a rushed finding of fact hearing which won’t be able to take place because police records, or medical reports or X-rays that were directed didn’t arrive in good time, might develop this area of law that in those circumstances the police or NHS are “connected persons”

 

 

In the meantime, if you are a social worker and you’ve got a fabricated illness case, pick up the phone and have a word with your lawyer. And if you’ve got a section 37 report to write and the allegations are really difficult or unusual, you might want to do the same.

Crunchy numbers

Bob Cratchit qualifies as a solicitor, and goes to work for Tim Tiny and Co. He specialises in care proceedings. He does nothing other than representing parents in care proceedings, that’s his speciality. He doesn’t do any advocacy, he just sees parents, goes through the papers with them, listens to their problems, gives them advice, and prepares any statements for them.

One idle day, Bob wonders about his long-term future in care proceedings. He didn’t come into care law to make lots of money, but he, like most people has bills to pay and wants to be able to have some fun after the bills are paid. He is also aware that his firm is a business and that at some level, the business will be interested in whether it is making money by employing him, or losing money. If what he brings in by way of income doesn’t pay his wages, they will let him go.

So, what Bob wants to know is – to cover his wages, how many care cases does he need to have going at any one time? He realises that off the top of his head, he has no idea. Is it four? Fourteen? Forty?  

Given that the case is a fixed fee, there must be a point at which for each case, he begins losing money for each additional hour he works on it. But where is that? After twenty hours? Sixty? A hundred?

[It may sound nasty and vulgar and ugly to look at things in this way, but given that Tim Tiny and Co is ultimately a business and not a charity, they would want to have some idea of whether the work Bob is doing ultimately covers his wages. If Tim Tiny and Co were in the business of selling doughnuts, they wouldn’t do very well unless they had an idea how many doughnuts they had to sell to break even, and how much they made per doughnut after covering their costs. And if firm after firm of Tim Tiny and Co’s end up having to let their Bobs go, who will be representing parents?

 

I’m not sure that any care lawyer has ever sat down to do these sums. You will see when you read this whole thing, that care lawyers aren’t sitting around on thrones made of gold, lighting Romeo y Julietta cigars with fifty pound notes. If they were any good with numbers, they’d be doing ancillary relief with Fiona Shackleton, charging £500 per hour - allegedly]

Five key numbers or assumptions, from which the rest of this is derived.

(1)   The fixed fee cost for representing a parent in care proceedings is £2907 (it is actually less than that in the Midlands and the North – £2256 and £2193 respectively) 

 

(2)   The duration of cases post the new PLO going live will be 26 weeks

 

(3)   In order for a solicitor as an individual real person to earn £100, they need to bill at least £300   (the rule of thumb being that of every pound billed, 33p is for the wages of the solicitor, 33p for the overheads and 34 p for the partners of the firm)

 

(4)   The minimum hourly wage in the UK is £6.19  

 

(5)   The notional hours per week worked by a person in England is 37, though a lot of people work more.   [For the odd situation of a fixed fee, working more hours is actually a BAD thing, since it makes the effective hourly rate go DOWN]

If you didn’t know, we moved a few years back from a system where a solicitor representing parents billed for their work for each hour they spent at about £65 per hour (up to a certain limit) and instead to a fixed fee system, where every case, regardless of how much time is spent on it, gets billed at the same amount.    [There’s a  complication to that where if you are able to show that you spent TWICE the number of hours on a particular case than the Government predicted the average case would take, you can try to claim an additional fee, but that is high risk and beyond the scope of this article]

Deep breath, maths time. Let’s start by chopping out the bit of the fixed fee which goes to overheads and partners. The bit that is in effect left for Bob is 1/3rd.  

That makes the bit of the fixed fee that covers Bob’s wages £969 per case.   [£2907 divided by 3. He won’t necessarily get all of this, what we are doing is working out whether the firm can afford to pay him £x, given that they use at most one third of his generated income to pay his wages]

[We can do this next bit really quite simply as a rough estimate – if Bob earns just under £1000 in wages per care case, he’s going to roughly need 10 care cases a year to earn £10,000, 25 to earn £25,000 and so on. ]

 

The minimum wage of £6.19 an hour, multiplied by 37 hours, multiplied for 52 weeks, works out at £11,910 per year. That’s 12 and a bit per year, if Bob works in London or the South of England, so it needs to be 13 cases [since you can’t take on ‘a bit’ of a case].

National average salary is £26,500, so Bob needs to run 28 care cases per year  – this goes up a LOT if he doesn’t work in London.

Where is Bob and what does Bob himself get per care case

Number of care cases to earn minimum wage

Number of care cases to earn national average salary

Weekly income for Bob per care case and

Notional hourly rate per care case (on 26 week cases)

Weekly income for Bob per care case and Notional hourly rate per case case (on 40 week cases)

“Break-even point?”

London/South (£969 per case)

13

28

£37.00

£1.00

£24.05

65p

70 or less

Midlands (£752 per case)

16

36

 

£28.86

78p

£18.87

51p

55 or less

North of England (£731 per case)

17

37

£28.12

76p

£18.28

49p

53 or less

           

Break-even point is based on Bob needing to generate income out of that fixed fee to cover his hourly pay (which on national average is £13.77 per hour). The more hours he spends on the case, the less profitable he will be, but if he goes OVER those hours in the column, the work he is doing will not actually be covering his wages.  [So, in the North of England, on a 26 week case, if a lawyer spends an average of more than 2 hours per week on each care case, they aren’t covering their wages]

The notional hourly rate, if you want to check it is   (amount for Bob per case / number of weeks the case will be running (26 or 40) / 37 hours per week).  Given that you don’t get paid per hour that you work on the case, the notional hourly rate is a way of looking at what, per hour, you effectively earn from HOLDING the case, given that the fixed fee can be averaged out over the hours the case is active in Bob’s caseload).

 

Bear in mind that the notional £1 per hour per case isn’t just earned  WHILST you are working on the case, but just whilst the case is going on, it is a way of smoothing out those days when you do 4 hours on the case and other days where you don’t need to touch it at all. 

 

 [Of course, the 10% cut proposed by the Ministry of Justice in their consultation means that Bob will be only be  earning 90p per hour for each care case he holds, AND the minimum wage is going up to £6.31, so from that point he will need to hold more care cases per year to get paid minimum wage. ]

So, to pay a specialist care lawyer (who doesn’t do advocacy)  the national average salary, they need to be opening 28 care cases per year. If they can’t open 28 care cases each and every year, then either they need to change their working model to start doing advocacy (which is billed separately to the fixed fee) or Bob will be ending up out of a job. That means, given how long proceedings last, in the new regime, you’d be wanting to have 14 or more in your cabinet at any one time.

(If you are in private practice, and you have not just rolled your swivel chair back to your filing cabinet to count whether you currently have more than fourteen care proceeding files, you have nerves of steel…)

 

That’s all a bit depressing. So here’s a positive way of looking at it, says Suesspiciousminds weakly, the 26 week PLO timetable will be making you nearly 50% more profitable per case per hour, and will be making the partners 50% more profitable per case per hour too.  You can say to your partner, “look, once the PLO comes in, every care case I have will be earning me 50% more per hour”      [£1.00 v 65 p in the South, 78p v 51p in the Midlands, 76p v 49p in the North].  How often do you get the chance to improve your hourly earning figures by 50%?

“Hey boss, I’m going to be 50% more profitable per hour on care cases after August, how about a raise?”

 (If you ARE planning to use that as an argument for a 50% pay-rise, I suggest that you don’t use the earlier part of this article or let the managing partner see it. Also, if you ARE working for the MOJ, don’t use this as a basis for cutting the fixed fees down by 35% of their current level)

If you are a specialist care lawyer, either start grabbing some private family work, or start doing advocacy, as otherwise you’ll be struggling to stay afloat, is my advice.

Quick ballpark figure, if Bob did all the advocacy as well, on a new PLO case being dealt with in the Magistrates Court, say 3 ½ day hearings, 2 advocates meetings  and a 3 day final hearing, that would mean  £2425 for the firm of which one third, or  £808.50  goes into the potential pot for Bob’s wages. Which is quite a chunk compared to what Bob would get for running the case or what the firm itself would get, and one can see why family solicitors are doing more and more of their own advocacy, since it nearly doubles the income per case for the firm.

 

Working all of this out for barristers is harder, since there isn’t the 1/3 Bob, 1/3rd overheads, 1/3rd Tim Tiny and Co rule of thumb, but the figures are all there to be calculated. It would be ludicrous to imagine that a barrister could run five day hearings in the County Court every working week of the year, so that’s the ludicrous notional highest GROSS earnings per year for solely publicly funded work £557 per day x 5 days=  £2800 in a week x 48 working weeks of the year.

 

 

If Bob specialises in representing children, the table is a bit different, since the figures depend on whether it is one child or more than one – don’t represent a baby in the North of England, unless you are doing quite a bit of the advocacy yourself…

Bob works in which area, representing how many children?

How much for Bob per care case?

Number of cases to earn minimum wage

Number of cases to earn national average

On 26 weeks, the weekly income per case, and the notional hourly rate

On 40 weeks, the weekly income per case and the notional hourly rate

Break even point

South (1 child) £745.67

16

36

£28.68

78p

£18.64

50p

54 hours or less

South (more than 1 child)

£1118.33

11

 

24

£43.01

£1.16

£27.96

76p

81 hours or less

Midlands (1 child)

£649.67

19

 

41

£24.99

67p

£16.24

44p

47 hours or less

Midlands (more than one child)

£974

13

28

£37.46

£1.01

£24.35

66p

71 hours or less

North (1 child)

£532.67

23

50

£20.49

55p

£13.32

36p

39 hours or less

North (more than one child)

£798.67

15

34

£30.72

83p

£19.97

54p

58 hours or less

           

And one final bit of cheery news. If you are representing a parent, you can console yourself when in the first two weeks of care proceedings you have to:-

See the client

Read the papers

Decide what, if any additional disclosure you need

Brief counsel for the contested ICO hearing

Decide whether you want an expert

Identify expert, ask them to complete the practice direction material

Make an application for the expert

Draft a letter of instruction for the expert

See the client again and prepare a statement

Get them to sign the statement

Brief counsel for the Case Management Hearing

That you will have, in doing so, earned £200 towards your cost target.

Follow

Get every new post delivered to your Inbox.

Join 2,038 other followers