“I guess one person can make a difference… but most of the time, they probably shouldn’t” – Marge Simpson
I would be very interested to know if this is a local problem, or more widespread, but I’ve had a spate over the last five months (getting steadily worse) of cases being delayed and my email being clogged full of problems about Prior Authority. This tension seems to have arisen because the LSC appear to intepret a Court order that says “The costs of this expert be shared in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child” to actually mean “The costs be split one quarter to the LA, who have to pay up and shut up, whatever we feel like we want to pay, and the rest out of the solicitors profit costs – providing of course that we think the assessment should actually happen at all” and “the report to be filed and served by 1st April 2012” to mean “The expert report will be filed at some indeterminate time in the future, after we’ve processed prior authorities, granted one of them, rejected one of them, and refused one, then reconsidered on appeal”
If that’s sounding familiar, I have a suggested order, and a generic skeleton below, which I have been using in a concerted effort to educate the LSC that in Court proceedings, it is the Court who decide what reports take place, and who pays for them. Hint – the clue is in the wording of the initial order, and the omission of the words “Whatever we feel like we want to pay and the rest out of the solicitors profit costs”
Please let me know of problems or solutions in your area. It will all be helpful should the LSC decide to challenge the Court’s jurisdiction on costs.
The Court orders that the costs of the assessment be met in equal one quarter shares between the Local Authority and the public funding certificates of the mother, father and Child/ren, it being a reasonable and proportionate disbursement for the purposes of public funding, and the Court having determined that the report is necessary for the resolution of the case. In the event that the Legal Services Commission, who adminster the public funding certificates and payments made, seek to vary or set aside this order, such application should be made on notice to the parties, no later than (2 weeks time). If no such application has been made by that date, this order shall stand. The publicly funded parties shall serve both the sealed order, and a typed version of this order (to avoid delay in waiting for the sealed order) upon the branch of the LSC dealing with their certificate, forthwith.
IN THE COURT
IN THE MATTER OF
AND IN THE MATTER OF THE CHILDREN ACT 1989
B E T W E E N:
(by his/her/their Guardian)
Prepared by the Local Authority
Proceedings in relation to were commenced on . [Information re dates of birth of the children, who the parents are, where the children are living and under what orders]
The concerns in the case relate to as set out in the threshold document [page reference].
On [date] , the Court made the following direction relating to the instruction of an expert:-
Certain of the publicly funded parties made an application to the Legal Services Commission (hereafter LSC) for “Prior Authority” – that is, agreement in advance of receipt of the invoice from the expert that the LSC would honour that payment.
Obtaining “Prior Authority” from the LSC is not a required element of the solicitors firms contract with the LSC, but many firms, locally and nationally, take the cautious and not unreasonable view that they would wish to ensure that the LSC will pay any costs incurred, as if they do not, the firm themselves are left paying any shortfall, thus taking a financial loss on dealing with the case.
The Local Authority would emphasise that they have sympathy and understanding for the solicitors firms involved, who have to operate in a financial climate where making up the shortfall between what an expert charges and what the LSC pays towards that expert fees can mean a Mr Micawber-esque outcome :- “Annual income twenty pounds, annual expenditure nineteen nineteen six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery.”
The “Prior Authority” mechanism, whereby the solicitors firms seek reassurance from the LSC that their allotted share of the expert fees will be recouped in full, in advance of the expert incurring any fees (by commencing the work which has been directed), is sadly not flexible, fluid or swift enough for such results to be known in good time for the expert to undertake the work and hit the deadlines imposed by the Court. In many cases, the process is taking a period of months, rather than weeks, leading to significant delays in the expert commencing the work, and hence the report being available when directed. This in turn, leads to delays in the Court being able to resolve decisions for children.
The Local Authority stance is that the Court have ordered, legitimately and lawfully, that an expert report be commissioned, and ordered, legitimately and lawfully that the costs of that report be apportioned in a certain way. If the LSC now resist that legitimate and lawful order, they should seek to apply to vary or discharge it.
It is suggested that to clarify this position in future, it should be made explicit on the face of the order that if the LSC seek to vary or discharge the order as to the apportionment of costs, they do so within 14 days of the order being made, and that the publicly funded parties shall file and serve the order (or a typed note thereof) upon the branch of the LSC dealing with their particular certificate.
This then avoids the need for any application for Prior Authority, as the Court will have ordered how the costs are to be paid, and the LSC will have their opportunity to challenge that within timescales which are more suitable for the child, and the administration of justice.
Notwithstanding the legitimate desire of the LSC to manage their budget and to drive down the costs of expert assessment, the Local Authority submit that where this causes delay for the child, the system has not worked properly.
Section 38(6) of the Children Act 1989 gives the Court the power to order that assessments be conducted within care proceedings.
That this power extended to directing how the assessments were to be paid for derives from a number of authorities, notably
CALDERDALE METROPOLITAN BOROUGH COUNCIL V (1) S (2) LEGAL SERVICES COMMISSION (2004)
 EWHC 2529 (Fam)
In which the High Court determined that the Court had jurisdiction to order that the costs of obtaining an assessment be divided in whatever way it saw fit, including making provision (as in this case) that the Local Authority pay one quarter, and each of the three publicly funded parties pay their own one quarter share through their public funding certificate.
It will be noted that the LSC played an active role within that case.
The principles in Calderdale were revisited in
LAMBETH LBC v S (2005)
 EWHC 776 (Fam)
Fam Div (Ryder J) 03/05/2005
Where the High Court determined that funding of section 38(6) assessments was not outside the remit of the LSC, and importantly that the Commissions own guidance on funding was not binding on the Court.
Some extracts from that judgment which are pertinent to the issue here (and given that it was made nearly seven years ago, prescient) :-
Paragraph 43 : – “It is equally correct that the Community Legal Service Fund has fixed and limited resources but so do local authorities… the services they both provide are inextricably linked to the obligation on the Court to ensure within the Court’s process the exploration rather than the exclusion of expert assessment and opinion that might negate the State’s case for the permanent removal of a child from his parents”
Paragraph 62 : – “ There is already a healthy delegation of the Commission’s powers and duties to the parties legal advisors. That practice of delegation was very properly exercised on the facts of this case and as a matter of practice around the country great care is taken by publicly funded practitioners to abide by their duties. A paper review of a case by the Commission is in any event a poor substitute for the Court’s overall impression gained by its continuous case management”
Paragraph 63 “It is a matter for them (the LSC) to put in place guidance to deal with exceptional expense provided that any prior authority or notification systems do not cause delay”
The Court do have the power, under Rule 25.4 (4) of the Family Procedure Rules 2010 , set out below, to limit the amount of an experts fee and the expenses that may be recovered from any other party. There is nothing within that power to circumscribe HOW the Court may limit the amount, and certainly nothing to indicate that they are bound by the LSC’s own internal policy or guidance.
Court’s power to restrict expert evidence
25.4.—(1) No party may call an expert or put in evidence an expert’s report without the court’s permission.
(2) When parties apply for permission they must identify—
(a) the field in which the expert evidence is required; and
(b) where practicable, the name of the proposed expert.
(3) If permission is granted it will be in relation only to the expert named or the field identified under paragraph(2).
(4) The court may limit the amount of a party’s expert’s fees and expenses that may be recovered from any other party
The Court must consider, in any application to vary or discharge the original order :-
Section 1 (1) of the Children Act 1989 “when a Court determines any question with respect to (a) the upbringing of the child; the child’s welfare shall be the court’s paramount consideration.
And section (1) (2) of the Children Act 1989 “in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child”
The paramount consideration is the child’s welfare, and that delay is likely to be prejudicial to that welfare; rather than the financial aspects (important as they legitimately are to both the LSC and the firms involved)
It is submitted as a result of all that has preceded, that :-
(a) the Court has power to direct that an assessment take place (pace s38(6) of the Children Act 1989)
(b) the Court has power to direct that the costs of the assessment be apportioned in such way as they see fit, including directing that the parties public funding certificates bear all or some of the costs (pace Calderdale)
(c) The LSC own internal policy on funding, and the limits they will pay in relation to experts is not binding on the Court (pace Lambeth)
(d) The Court does have the power to set a cost limitation when instructing an expert, and also when considering any application to vary the original order. (pace rule 25.4 (4) of the Family Procedure Rules 2010)
(e) If the consequences of setting a cost limit and varying the existing order, mean that a fresh assessment be commissioned, or significant delay incurred, the Court cannot make that variation without considering the provisions of section 1 (1) and section 1 (2) of the Children Act 1989
(f) the interests of the child would be better served by the report which is so close to completion being completed and filed and served, as originally intended, and for the existing order to remain in place, with no cost cap being added.
The Local Authority would accept that in some cases where the LSC actively seek to become involved and make representations, that the balance might well fall another way, and that the LSC’s perfectly legitimate motivation in controlling costs and curbing what had been excesses might justify the Court setting a cap pursuant to rule 25.4 (4) of the FPR.
In this case, however, it is not. Decisions here need to be made about this child/these children, and what the appropriate arrangements for his/her/their family life should be.
In general, the Local Authority would suggest that where Prior Authority is refused, then there is a need for the case to be urgently restored for directions, to consider whether the original direction needs to be varied, and the impact on the timetable generally. The Local Authority would remark that a great deal of their time is currently spent on wrangling with decisions in relation to Prior Authority and whether expert assessments which have been directed by the Court can take place, and many of these disputes have led to delay for the children concerned.