“Not with a bang, but a whimper”

Possible fallout from R (JG) v the Legal Services Commission 2013

This is the much anticipated, and long-awaited, outcome of the judicial review against the LSC (now the Legal Aid Agency, LAA) and their refusal to pay the child’s solicitors the costs of an expert fee in private law proceedings where the Court had determined (a) that they needed expert evidence to determine the case (b) that the parents who were not in receipt of public funding could not pay for it, or even pay a third share of it, and thus (c ) that the entire costs of the expert assessment should fall upon the child’s public funding certificate.

 That seemed to be the only way for the Court to obtain expert evidence when faced with parents representing themselves or who had no funds to pay for an expert; but many observers were becoming increasingly concerned that the Courts were appointing Guardians in private law cases not so much for what the Guardian could bring to the table, but so that the Court had access to the child’s public funding.

 The LSC were always going to take a stand on this at some point, and refuse to pay all of the costs of an expert report when the parents were not contributing.

 Here are some of the reasons, from a quick think, about why expert evidence might be needed in private law proceedings in order to reach a fair conclusion :-

1. The child presents as having psychiatric or psychological problems – maybe the child is self-harming, or has anorexia
2. The child has a medical condition, for example Asperger’s Syndrome, which may impact on change, or routines (and thus how contact and residence are to be managed), or the parent has a medical condition which affects their ability to care, or travel to contact
3. There are allegations of Parental Alienation Syndrome, or implacable hostility
4. There are historical concerns that require a risk assessment of future risk
5. There are allegations about substance misuse  or alcohol misuse (testing, psychiatric evidence about prognosis)
6. There is a dispute about paternity that requires DNA evidence   (unless the Court is going to start resolving paternity disputes without DNA testing)
7. There are concerns about the mental health of either parent which requires expert evidence as to diagnosis and prognosis

In our brave new world where neither parent is entitled to public funding, none of those assessments can be done unless someone is prepared to pay for them.  And the LSC have made it plain that this someone is not going to be them, where they have been parachuted into the case as a portable chequebook (sorry, Rule 16.4 Guardian)

Sadly, the judgment in JG v LSC is not yet up, and I’m sure that the Court made attempts to put a ring fence around the most serious sorts of cases and put some exceptional circumstances in place (so I will return to the topic once the judgment is up)

 But in broad terms, the child’s solicitor, and the Law Society lost, and the LSC won. Not a huge surprise. We all saw that coming.   It doesn’t seem  to me that the Courts fought the LSC on the beaches on either this one, or the prior authority case, the judgments in both may as well have been written on a white flag.

 It seems, to this jaded hack, that Abu Qatada was able to get our Courts to do more for him, than the Law Society were able to get a Court to do for children. *  I will cheerfully retract this, if when I see the judgment, it appears that a valiant but ultimately doomed  attempt was made by the Court to  preserve the interests of children as being paramount in the whole exercise. 

*{too harsh? Probably, but I am a bit crosspatch about this. For example, in the recent planning case of  Stevens v Secretary of State for Communities and Local Government 2013, the Court reminded themselves that where a persons human rights are impacted disproportionately by a decision, the Court can look at things more widely than as a pure judicial review.  Was that done in this case?

Furthermore,…….the House of Lords have held that, where the proportionality of the impact of a decision on human rights is at issue, that is a substantive question to be objectively determined by the court, and not a procedural one that requires the court to investigate the decision-making process (R (SB) v Governors of Denbigh High School [2006] UKHL 15: (“SB“) and Miss Behavin’ Ltd v Belfast City Council [2007] UKHL 19; (“Miss Behavin’“))

Thus, in SB, Lord Bingham said (at [29]):”The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated”;

and, consequently, what matters in any case is “the practical outcome, not the quality of the decision-making process” (at [31]).  

And I ask, what the practical outcome on children and families of having Courts wish to obtain expert evidence to achieve a fair result in a case but being prevented from doing so, would be?}

 The LSC relied heavily, as they would,  on section 22 (4) of the Access to Justice Act, which provides that costs should not fall on a publicly funded party that would not otherwise have fallen on the party if they were not publicly funded.  [Of course, that Act was written at a time when the sheer volume of unrepresented litigants could not be foreseen, as it was pre LASPO, and I have yet to see whether the judgment wrestled with whether s22 (4) in these circumstances led to an incompatibility with section 1 of the Children Act 1989]

 And the LSC thus argued, and were successful, that the Court would not have made an order that the father or mother pay the entire cost of the expert fee, and that the most the LSC should pay is an equal share, one third.

 Where that leaves children, when the question for the Court in all those private law cases where the parents are not both in receipt of public funding (i.e nearly all of them) and the Court consider that an experts report is necessary to determine the case, is somewhere towards the source of the Swannee.

 *( I think it would need to be both parents getting funding, since the same principles would apply to  ‘parent gets public funding as a result of say domestic violence, would still be the LSC saying that they would only pay the share matched by the other parent)

 Can a Court, in fact, order that a parent pay for the costs of a report? They are an adult, and I think the Court are in difficulties ordering an adult to incur costs, or to do anything  (short of injunctions).  The Court can merely say, if you want to run your case, then there will be consequences for your case if you don’t comply with the directions that have been made. Ordering an adult to do something, or pay for something seems to me to need some statutory basis for the Court having that jurisdiction.

 So the Court can of course say “If you want to obtain this report and rely on it, then you will have to pay half of the costs. No costs, no report.” 

 But that doesn’t help, because of course, when you have two parties to litigation, one of them has a vested interest in not obtaining such a report. They are happy not to have it done.

 And will any expert take on an instruction where the parents are paying privately?  If it were me, I would want cash up front, because how would I get the payment from a mother if my report says something she doesn’t want to hear? Even if the parent is happy with the report, once they have it in their hands, what is the incentive to pay for it? So, cash up front is the only way.

And we are back, again, to the concept that money can buy you a better service in the family Courts   (a parent on income support who wants a report on how their child’s Asperger’s Syndrome might impact on a shared residence arrangement is not going to get one, whereas a parent who is a quantity surveyor say can get the report)

 It doesn’t feel too great to me, that in private law cases (and contrary to what the Family Procedure Rules say) the key question for a Court considering the need for an expert report is not

“Is this report necessary to assist the Court to resolve the proceedings”   but

 “Who will pay for this report?”

[Also, eek, will the LSC now try to clawback all of the expert fees that they have paid out to solicitors representing rule 16.4 guardians in the past?]

[Addendum – very grateful to 11kbw who have the judgment up on their website http://www.11kbw.com/judgments/docs/PNTCJudgment.pdf

 readers can form their own impression as to whether the right of parties to a fair trial, and the issues of whether a broad principle that if parties can pay for a report it shouldn’t all fall on the LSC has been blurred with LASPO whereby a party can now be not in receipt of public funding although they have no means to pay for representation or disbursements.  For my part, I thought an awful lot of the judgment was on the “well, we won’t be having those experts anymore, and this just helps with that” side of the fence.

For example  para 67:-  

“If  the children’s guardian is of the view that the issues identified are beyond his or her skill and expertise, the Court may be minded to ask CAFCASS whether the case can be co-worked by an extended scope practitioner who if necessary can be appointed as a joint guardian”

The exceptions aren’t set out in detail , but are touched on in principle at  para 87, the LSC having argued that the Court would have no jurisdiction even in extraordinary circumstances (the report being absolutely necessary, and the Court having carefully explored whether the other parties could pay a share or a reduced share) and the Court knocked the LSC back on this, though no other point; and said that there WOULD be circumstances in which if the report was necessary and there was simply no other way, the LSC might be ordered to pay for it. 

[Although they don’t need to follow a court order, don’t need to appeal it, and there’s no legitimate expectation for a child’s solicitor that a court order ordering the LSC to pay for it will ever result in a cheque being written, so hooray!]

The overwhelming message I take away is – don’t worry too much about how you are going to fund experts, because there won’t be any.  Bearing in mind that this judgment was prepared by the Judge seized with responsibility for modernisation of family justice, that’s an important message.  But read it and decide for yourselves, it is very possible that I am being deeply unfair. ]