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Beware the PLO my son! the jaws that bite, the claws that catch (Is the PLO coming to Court of Protection?)

 

Having opened with Lewis Carroll, I’ll digress to Bruce Springsteen – if you practice in the Court of Protection –  “You’d better not pout, you’d better not cry, you’d better watch out, I’m telling you why – the PLO is coming to town”

 

Cases A and B (Court of Protection : Delay and Costs) 2014

http://www.bailii.org/ew/cases/EWCOP/2014/48.html

Mr Justice Peter Jackson  (I know, it is supposed to be Jackson J, but when there are two Jackson J’s, that just causes confusion) gave a judgment in two linked Court of Protection cases that had gone on an inordinate length of time and cost an inordinate amount of public money, and ended with this exhortation to the President  (who of course wears those two hats of President of the Family Division And President of the Court of Protection)

 

The purpose of this judgment is to express the view that the case management provisions in the Court of Protection Rules have proved inadequate on their own to secure the necessary changes in practice. While cases about children and cases about incapacitated adults have differences, their similarities are also obvious. There is a clear procedural analogy to be drawn between many welfare proceedings in the Court of Protection and proceedings under the Children Act. As a result of the Public Law Outline, robust case management, use of experts only where necessary, judicial continuity, and a statutory time-limit, the length of care cases has halved in two years. Yet Court of Protection proceedings can commonly start with no timetable at all for their conclusion, nor any early vision of what an acceptable outcome would look like. The young man in Case B is said to have a mental age of 8. What would we now say if it took five years – or 18 months – to decide the future of an 8-year-old?

 

I therefore believe that the time has come to introduce the same disciplines in the Court of Protection as now apply in the Family Court. Accordingly, and at his request, I am sending a copy of this judgment to the President of the Court of Protection, Sir James Munby, for his consideration.

 

Brace yourselves, Court of Protection folk, for “streamlining” and “case management” and “standardised documents” most of which will make you wish that you had taken a different career path – for example, rather than “Law” that you had decided to become a practice subject for CIA agents working on their interrogation techniques.

The Judge has a point here, we absolutely would not tolerate cases involving a vulnerable 8 year old taking 5 years* (*although see case after case of private law children cases that drag on for years and years) and costing this sort of money.

 

  1. In Case A, the proceedings lasted for 18 months. In round figures, the estimated legal costs were £140,000, of which about £60,000 fell on the local authority, £11,000 on a legally-aided family member, and £69,000 on the young man himself, paid from his damages.
  2. In Case B, the proceedings lasted for five years. In round figures, the estimated legal costs were £530,000, of which about £169,000 fell on the local authority, £110,000 on a family member (who ran out of money after three years and represented himself thereafter), and £250,000 on the young man himself, paid for out of legal aid.
  3. These figures are conservative estimates.
  4. Each case therefore generated legal costs at a rate of approximately £9,000 per month.

 

The Judge draws a comparison between taxi drivers and advocates (and not the usual “cab-rank principle” one)

  1. Just as the meter in a taxi keeps running even when not much is happening, so there is a direct correlation between delay and expense. As noted above, the great majority of the cost of these cases fell on the state. Public money is in short supply, not least in the area of legal aid, and must be focussed on where it is most needed: there are currently cases in the Family Court that cannot be fairly tried for lack of paid legal representation. Likewise, Court of Protection cases like these are of real importance and undoubtedly need proper public funding, but they are almost all capable of being decided quickly and efficiently, as the Rules require.
  2. In short, whether we are spending public or private money, the court and the parties have a duty to ensure that the costs are reasonable. That duty perhaps bites particularly sharply when we are deciding that an incapacitated person’s money should be spent on deciding his future, whether he likes it or not.

 

It is very hard to argue against that, and there can be little worse than burning through a vulnerable person’s money in order to protect them from financial or alleged financial abuse (see for example Re G, and the “94 year old woman subject to gagging order” case)

 

What drives up those costs? The Judge identified two major things – a search for a perfect solution, rather than a decent solution that carries with it some imperfections, and a tendency to deal with every concievable issue rather than to focus on what really matters.

 

A common driver of delay and expense is the search for the ideal solution, leading to decent but imperfect outcomes being rejected. People with mental capacity do not expect perfect solutions in life, and the requirement in Section 1(5) of the Mental Capacity Act 2005 that “An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.” calls for a sensible decision, not the pursuit of perfection.

Likewise, there is a developing practice in these cases of addressing every conceivable legal or factual issue, rather than concentrating on the issues that really need to be resolved. As Mrs Justice Parker said in Re PB [2014] EWCOP 14:

“All those who practice in the Court of Protection must appreciate that those who represent the vulnerable who cannot give them capacitous instructions have a particular responsibility to ensure that the arguments addressed are proportionate and relevant to the issues, to the actual facts with which they are dealing rather than the theory, and to have regard to the public purse, court resources and other court users.”

  1. There is also a tendency for professional co-operation to be dissipated in litigation. This was epitomised in Case A, where the litigation friend’s submission focussed heavily on alleged shortcomings by the local authority, even to the extent that it was accompanied by a dense document entitled “Chronology of Faults”. But despite this, the author had no alternative solution to offer. The role of the litigation friend in representing P’s interests is not merely a passive one, discharged by critiquing other peoples’ efforts. Where he considers it in his client’s interest, he is entitled to research and present any realistic alternatives.
  2. The problem of excessive costs is not confined to the Court of Protection. In his recent judgment in J v J [2014] EWHC 3654 (Fam). Mr Justice Mostyn referred to the £920,000 spent by a divorcing couple on financial proceedings as “grotesque”. In V v V [2011] EWHC 1190 (Fam), I described the sum of £925,000 spent by a couple who had not even begun their financial proceedings as “absurd”. Yet everyday experience in the High Court, Family Court and Court of Protection shows that these are by no means isolated examples: in some case the costs are even greater. There is a danger that we become habituated to what Mostyn J called “this madness”, and that we admire the problem instead of eliminating it.
  3. The main responsibility for this situation and its solution must lie with the court, which has the power to control its proceedings.

 

I hope that if there is going to be a committee or working group on solving some of the problems in the Court of Protection that they can co-opt Mr Justice Peter Jackson and District Judge Eldergill onto it – both of them are extremely sensitive and sensible Judges and the Court of Protection could do a lot worse than have its future steered by them.

Everyone really ought to read Re D

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/10/re-child-d.pdf

Please read Allan’s excellent piece here

http://celticknotblog.wordpress.com/2014/11/02/if-the-state-wants-to-take-your-child-be-prepared-to-represent-yourself/

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“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 … where one party is publicly funded … 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.”

I continued (para 19):

“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”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me – I’m not going to put the solution up online to tip off the LAA as to the loophole though]

 

LASPO and article 6 – a huge case

The President has given his judgment in Q v Q, and it is a helluva read.

If you want the “Too Long: Didn’t Read” version – in a case where the Judge concludes that it is necessary for a party to be legally represented or to have the costs of an expert paid for and that failure to do so would be a breach of article 6, and the Legal Aid Agency refuse to use their power under s10 LASPO to grant exceptional funding,  the Court would be entitled to order that Her Majesty’s Court Service pay for the legal representation.

 

The original Q v Q I wrote about here :-  http://suesspiciousminds.com/2014/06/09/q-v-q-an-impasse/

 

The facts broadly are that a father was seeking contact with his child, an expert assessment as to future risk had been obtained, he disagreed with the conclusion and wanted to challenge it by way of cross-examination, but wasn’t in a position to do that himself, it was a task that would have been beyond him.  At the end of the judgment, the President floated the idea that if the Court considered that a party’s article 6 right to a fair trial was being breached, and the Legal Aid Agency wouldn’t pay for representation, then the Court Service might well have a duty to.  He didn’t finally determine that, giving the Ministry of Justice a chance to intervene and make representations as to why not  (they didn’t take that chance, because they are not the brightest crayon in the box)

 

The President also bundled up with Q v Q two private law cases where serious sexual offences were being alleged against the father and the Legal Aid Agency’s refusal to grant exceptional funding was going to place the Court in a position where the father might have to cross-examine in person the alleged victim. One of those,  D v K and B 2014   I wrote about here http://suesspiciousminds.com/2014/03/14/equality-of-arms-d-v-k-and-b-2014/

 

The judgment in Q vQ 2014 is here

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html

 

I have not been, over the last few years, the biggest flag-waver for the President – many of my grumbles are about his performance as a reforming administrator rather than a Judge; but he delivers for justice here.  And puts a target on his head, because this won’t be a popular decision in the Ministry of Justice, who are probably in a room now with a flip chart drawing up battle-plans and watching old episodes of  Judge John Deed to try to pick up some tips for when the MOJ are at war with a ‘rogue’ Judge.

 

Let’s have a quick look at why the MOJ, when placed on notice that the President was contemplating making a decision that would in effect be – “either the LAA write a cheque or HMCS write a cheque, but a cheque’s going to get written”, decided not to get involved

I decided to invite the Secretary of State for Justice (para 20) 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.”
On 25 June 2014 I received a letter from Shailesh Vara MP, Parliamentary Under-Secretary of State for Justice in the Ministry of Justice. After an opening paragraph the letter reads as follows:
 

“I am very grateful for the opportunity to intervene but the Ministry of Justice does not propose to do so in this case.
Ministers have no right or power to intervene in individual legal aid funding decisions made by the Director of Legal Aid Casework. The independence of the Director is an important statutory measure, which ensures impartiality in decision making. From the information recorded in your judgment, it is clear that the father in this case failed to satisfy the statutory merits criteria required to access funding. The merits test is a fundamental and long established part of the legal aid system, and ensures that limited public money is focussed on sufficiently meritorious cases and is not available in cases lacking sufficient merit. It is clearly established that it is legitimate for the Government to focus limited public resources through applying a merits test.
As you record in your judgment, there is expert evidence in the case (one report plus addenda commissioned by the father and one plus addendum commissioned jointly by the mother and the father) which set out unequivocally that the son would not be safe in his father’s presence and that at the moment there should be no contact between the father and the son. There have always been litigants in person in family proceedings, whether because individuals do not qualify for legal aid or choose to represent themselves, and the Courts have been able to resolve such proceedings justly and fairly.
I agree with you that further delay should be avoided in this case and, in the absence of a mechanism for funding the appearance of the experts or representation for the father, you will have to decide this issue in the absence of the cross examination you refer to in your judgment.”

 

So, we’re not coming, and if you can’t find a lawyer to do the cross-examination for free, then you’ll just have to decide the case without any cross-examination.

 

Do you remember in 1984 how Orwell talks about the Ministries in Airstrip One being named for the opposite of what they really do? So their Ministry of Peace was really a Ministry of War and so on?   Ladies and Gentlemen, I give you the Ministry of Justice.  Bravo, bravo.

 

The President goes through the various options, looking chiefly at the cases involving an allegation of rape in private law proceedings which is challenged and where the ‘accused’ has no lawyer.  In short they are ‘pro bono’,  the Guardian conducting the cross-examination, the father doing it in person or the Judge doing it and shows why each are insufficient and flawed.

 

He then establishes that as a result of European jurisprudence, notably  Airey v Ireland, and the Human Rights Act, the Court itself is bound by article 6 and fair trial and would itself be breaching the person’s right to a fair trial if it were to conduct the trial in a way that it considers to be unjust

 

46. The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention. So far as is material for present purposes Article 6(1) provides that “In the determination of his civil rights and obligations … , everyone is entitled to a fair … hearing within a reasonable time”. Article 8, which guarantees “the right to respect for … private and family life”, also affords significant procedural safeguards in relation to the court process. As the Strasbourg court said in McMichael v UK (1995) 20 EHRR 205, para 87, “the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
 

47. It is necessary also to have regard to Article 47 of the European Charter of Fundamental Rights:
 

“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”
I do not take up time considering whether this is applicable in cases such as those before me. In any event, it is not clear that it creates any greater right than arises under Articles 6 and 8 of the Convention: see Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin), paras 36-37.

48. Article 6 guarantees the right of “practical” and “effective” access to the court. In the case of a litigant in person, the question is whether, without the assistance of a lawyer, the litigant will be “able to present her case properly and satisfactorily”: Airey v Ireland (Application no 6289/73) (1979) 2 EHRR 305, para 24. 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 would afford to parties acting in person. In DEB v Germany [2011] 2 CMLR 529, para 46, the CJEU summarised the Strasbourg jurisprudence in this way:
 

“Ruling on legal aid in the form of assistance by a lawyer, the ECtHR has held that the question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent himself effectively.”

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

 

 

The President also looked at section 31 G (6) of the  amended Matrimonial and Famly Proceedings Act 1984

 

33….section 31G(6) of the Matrimonial and Family Proceedings Act 1984, set out in Schedule 10 of the Crime and Courts Act 2013, which came into effect on 22 April 2014:
 

“Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to –
(a) ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b) put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.”

 

And in conclusion

 

75…does section 31G(6) operate to confer on a judge of the Family Court power to forbid a party who wishes to conduct his own case from examining or cross-examining a witness? Again I have heard no sustained argument, but my inclination is to think that the answer is, no it does not, for principle suggests that such an important right is only to be cut down by express words or necessary implication, and neither is very obviously to be found in section 31G(6): see again General Mediterranean Holdings SA v Patel and Another [2000] 1 WLR 272. As against that, I can see the argument that there may be cases where to expose the alleged victim to cross-examination by the alleged perpetrator might engage the alleged victim’s rights, whether under Article 8 or Article 3, in such a way as to impose on the court an obligation under the 1998 Act to prevent it, so that in such a case section 31G(6) has to be read as giving the court the appropriate power to do so.
 

76. The second thing which is unclear is this: what, in contrast to the word “put” in section 31G(6), do the words “cause to be put” mean? When section 31G(6) provides that in certain circumstances “the court is to … put” questions, that must mean questioning by the judge or magistrate. In some – probably many – cases that will be entirely unproblematic. But in cases where the issues are as grave and forensically challenging as in Re B and Re C, questioning by the judge may not be appropriate or, indeed, sufficient to ensure compliance with Articles 6 and 8. There is, in my judgment, very considerable force in what Roderic Wood J and Judge Wildblood said in the passages in their judgments (respectively, para 24 and paras 6(iii)-(v)) which I have already quoted.
 

77. The words “cause to be put” must, in contrast, contemplate questioning by someone other than the judge. Now that someone else might be an advocate whom the court has managed to persuade to act pro bono. It might be the guardian, if there is one, or the guardian’s advocate. But there are, as both Roderic Wood J and Judge Wildblood understandably pointed out, great difficulties in expecting the guardian or the guardian’s advocate to undertake this role – difficulties which were expounded also in the argument before me. I agree with what Judge Wildblood said (para 6(ix) quoted above). The point applies with equal force in the circumstances of both Re B and Re C.
 

78. What then is the court to do if the father is unable to pay for his own representation and “exceptional” legal aid is not available?
 

79. In the ultimate analysis, if the criteria in section 31G(6) are satisfied, and if the judge is satisfied that the essential requirements of a fair trial as required by FPR 1.1 and Articles 6 and 8 cannot otherwise be met, the effect of the words “cause to be put” in section 31G(6) is, in my judgment, to enable the judge to direct that appropriate representation is to be provided by – at the expense of – the court, that is, at the expense of HMCTS.

 

 

Now, some caveats  – the President is careful to say that these were cases with particular characteristics, each involving allegations of sexual offences and two involving allegations of rape, and that he had been looking at these cases in particular not s10 LASPO in general.   And also we need to bear in mind that  (a) the LAA might appeal this decision, as they are threatening to do with Gudanaviciene and others v Director of Legal Aid Casework and another [2014] EWHC 1840 (Admin),  and (b) hardly anyone at the LAA seems to have taken on board Gudanaviciene so far, as can be seen from the Smackdown judgment from HH Judge Bellamy I wrote about yesterday.     The criminal bar were all cock-a-hoop about the  Op Cotton judgment and the rug was pulled out from under them by the Court of Appeal.

 

Here are the President’s own caveats   (and if you are a Local Authority lawyer or budget-holder note the chilling implications of the LA funding intervenors or grandparents to litigate against them)

 

Three caveats

In this judgment I have been concerned only to consider the problems that may arise in private law cases. I have therefore not had occasion to consider any further the point I made in Q v Q (para 18), where I suggested that “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.” That is a matter for another day.
 

I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.
 

I emphasise also that the allegation in each case is one of sexual assault, in two of the cases an allegation of rape. It may be that a similar approach is appropriate in cases of serious non-sexual assault. It may be that it will not be appropriate in less serious cases. I express no concluded views, beyond drawing attention to the trite observation that everything will, in the final analysis, depend upon the particular facts of the specific case.
 

Concluding observations

The Ministry of Justice, the LAA and HMCTS may wish to consider the implications. That is a matter for them. For my part I would urge the early attention of both the Children and Vulnerable Witnesses Working Group and the Family Procedure Rules Committee to those aspects of the various matters I have canvassed that fall within their respective remits.

 

In both of the live cases, the Judge gave the Legal Aid Agency one last chance to see sense and grant the funding under LASPO, but gave the clearest of indications that to proceed without representation would be an article 6 breach and that the Court would have to consider its own duty to fund such representation.

 

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]

 

 

 

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]

“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.

“Tales of the Un-experted” (sorry)

CAFCASS have just published a study looking at experts – their use in proceedings, what type is being used, who asked for them, were they helpful?

 http://www.cafcass.gov.uk/media/149859/cafcass_expert_witness_research_6.2013.pdf

 It is interesting, although on their study of whether the use of the expert was beneficial, I think it would have been amazingly helpful, rather than just asking the Guardian in the case if they found them to be beneficial (which is in itself a huge leap forward, we’ve never even done that before)  the study or a subsequent one could ask the Judge

 

  1. Did you find that report helpful in reaching your conclusions?
  2. Looking at things now, after the conclusion, was the obtaining of that report worth the waiting time?  [ie, was it “value for time”]

 

 

This is what I found interesting about it though, in the Guardian’s analysis of whether the report was beneficial or not

 100% of the drug and alcohol tests obtained were found to be helpful

100% of the paediatric reports obtained were found to be helpful

But only 75% of the psychological reports obtained were found to be helpful

 Given that psychological reports are the most cash-expensive AND time-expensive, the fact that even Guardians (who in my view were being a bit generous with how useful they found reports) found only 3 in 4 of these reports to be helpful is STAGGERING

 The report also headlines that since 2009 there has been a massive drop in the instruction of independent social workers – from about 33% of cases then to about 9% now.  (That is probably a lot more to do with them being starved out of doing the job and thus not being available than any reduction in need for them, rather than, as some of the reporting I have seen of the report, that it shows how we have been busy embracing the Family Justice reforms)

 The study also shows that, so far as Guardian’s were concerned, the quality of the pre-proceedings work done by the LA, or the prior involvement of the LA had no impact on whether or not an independent expert was instructed.

 [The report goes on to cite 3 individual cases where Guardian’s had felt that poor social work had been the cause of the instruction, but of a survey of 184 cases this is statistically not significant]

 

Actually, the Court was rather more likely to instruct an expert if there had been historical social services involvement than in cases where little was previously known about the family prior to proceedings. (still scratching my head about that one)

 

The other interesting piece of information from the study (given the drive to cut down experts) was the breakdown of what discipline contributes what proportion of the assessments commissioned

 

The largest by far was psychologists, accounting for 35% of the experts instructed  (and we know now that this means that about a quarter of those were unhelpful, or nearly 9% of all expert reports commissioned by the Courts. You’re welcome)

 

The next largest group was adult psychiatrists – coming in at 20%.  I would suggest that this is going to be a difficult group to screen out of the system. One tends to go to an adult psychiatrist because there is a mental health or substance misuse issue that requires expertise over and above that that a social worker or Guardian can give. Even a talented and skilled Guardian or social worker can’t tell you what the prognosis for mother’s bi-polar disorder will be now that she has switched to different medication.

 

 

[Honestly though, I think that gathering this information has been a really useful start, and I would really really welcome a follow-up study where the Judiciary are asked on those sample cases, whether the expert report was beneficial and represented “value for time” for that child, submitted of course in an anonymised way so that we get the statistical information but that the judical feedback is kept apart from the actual case]

And in case my clunky pun has got you hankering after seeing a silhoutted woman dancing in front of a roulette wheel whilst playing cards are thrown about, and you have been singing “doo-doo-doo, noo-no0-noo doo-doo-doo” during your reading, here it is :-

http://www.youtube.com/watch?v=Oc46Gk-6qrA

 

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