This is a decision by a Circuit Judge, so informative rather than binding.
Re R (translation of documents in proceedings) 2015
You may be thinking, as I initially did – “but the President has already ruled on that!”
Indeed he did, and ruled that it was deeply unfair for a parent who doesn’t speak English not to have the documents translated into their own language, but not all of the documents, and not every bit of the documents. In fact, the parent in the President’s case got the generous amount of 51 pages translated (from a bundle of 591 pages) – thus less than 10%, and it was one of the President’s many rages about 350 page bundles, so even assuming a 350 page bundle, he’d have been getting about 15% of the documents.
So why is this even a case?
Well, because in the Presidents case Re L 2015
There was no dispute about WHO would pay for the translation, everyone agreed that it would be the parent’s legal aid certificate, but rather about how much should be translated. The estimate was £38 per page, so translating everything would have been £23,000.
In this case, there was a dispute about whether the legal aid agency would, or should, pay at all, or whether someone else should pay. I don’t know why the LAA didn’t raise that as an issue before the President (or rather, I do, it is because they knew they’d lose) but it wasn’t settled by Re L.
And of course, there’s absolutely no clarity in the LAA guidance, and no consistency around the country. So this issue is going to crop up over and over.
Her Honour Judge Roberts dealt with it in this way, which I think is very sensible
1. The LA are responsible for translating the pre-proceedings documents, and the initial statement and care plan, since at that point, the parties don’t have lawyers who have a public funding certificate.
2. After that point, the Legal Aid Agency are responsible for the costs of translating other documents, and it is the decision of the parent’s solicitors which documents they feel the parents need to have translated.
Very pragmatically, if you were making the Local Authority pay for the translation in category 2, that would involve them in a decision about which documents the parents needed to see, and that just doesn’t feel right at all.
I’m afraid that this is only binding in Suffolk courts (or until the Legal Aid Agency persuade the Minister to give them a get out of jail card in the form of some new regulations about it), but it might be helpful when the issue arises.
Without being all Nigel Farage about it, this is a real issue. When I started in family law, a case with a foreign parent happened once or twice per year, now it is about a third of my case load. Translation costs are considerable, and it is of course vital that a parent properly understands the allegations that are being made against them and sees the proper detail that they need to fight the case.
If you think that the title of the piece was just a cheap excuse for me to crowbar in a picture of Scarlet Johansson then, how right you are.
If Ms Johansson ever does get offered an acting role as a family lawyer and wants to shadow anyone for the role, I am available. *
*On consultation with my wife, it turns out that I’m not.
Ex parte Mossbound
In Court 7 David Jones (A) is telling a district judge that in 2007/8 he wanted completely to rebuild and re-plant his back garden, which suffered from subsidence. He contracted with Rolling Stone Speedibild (B) to do teh work. A has not paid B. B have sued A. Both parties – ‘very sensibly’, says the judge – have agreed that Mossbound Borough Council (C) should pay.
‘No one is here from the council to say why the rate-payers shouldn’t pay; though I’ve seen an email which says that, absent rules, they have no power to pay. I disagree. I shall be robust. I’m sure they’ll find a good reason to pay. It’s an excellent idea. B can’t be expected to pay these bills. He is outwith much in his bank account. So, let’s see: £38,755 with costs of £13,346 and interest at 11.75% from the date of the bill (7 years ago). Mossbound BC will therefore pay £93,040, payable in 28 days after the town clerk of Mossbound receives this order.’
I’m not at all sure the law works like that The translators are in the same position as A. The non-English speaking parents are clear, for – in contract terms – their solicitors are B. They will have to pay, and in most moderate to large solicitors’ firms they’ll probably scrape together the cash. Legal Aid Agency (‘LAA’) is C. Does anyone think Mossbound can be liable in law? If no, then why does LAA have to pay on HHJ Lynne Roberts’s order?
And the right answer is not that they must pay because a judge says so. If the order has no foundation, then – as for most of us who try to walk on water – it sinks. For some thought on the question and a little on legal aid law, see http://www.familylaw.co.uk/news_and_comment/care-proceedings-bundles-a-duty-to-pay#.VdxhTPmqqko. If I were acting for the parents lawyers,and LAA don’t pay, I could not – in honnesty, advise the parents’ solicitor to issue a civil claim against LAA for their short-fall. The LAA defence to teh claim is easy to predict (starting with LASPOA 2012, which – with its supporting regs – did not trouble the judge).
Yes, this judgment only really works if the LAA are agreeing to be bound by it. I would hope that if they object, they would do the decent thing and appeal, rather than allow the solicitors to incur the costs and then simply refuse to pay. [I think the remedy if a Court makes an order and you think it has no jurisdiction is to appeal, rather than just drop the solicitors in it from a great height. But I’m not sure I’d rely on the LAA doing the decent thing if I happened to be those solicitors]
It certainly isn’t an appeal-proof judgment at all* – I’d read it more that everyone asked the Judge to give a ruling on who ought to pay on the basis that they’d be bound by her views.
(*but neither was Re L, so I wouldn’t criticise a CJ for not being able to tie it all up when the President couldn’t)
I have a gut wrenching issue here, why is it when we read judgments like these do I feel we are travelling further back in time, back to the days of the illegible faxes that used to govern family proceedings, which was actually not that long ago.
The “Argument” is about translation of the bundle papers from English into Polish, okay, on paper that doesn’t seem too controversial, there are some fantastic translation software programs available to all to use, I am lost why the L.A upon writing their case papers/ applications [for the parents] simply did not just use a translation program, costs saved would be massive.
What I find here is that the L.A who’s application is before the court should have envisaged this issue, the L.A brought in the proceedings, applications and all, so here we have parents who would have the process server or other serve the application(s) on to the parents, no doubts all written in English, with little or no knowledge of what they actually mean.
Surely it doesn’t only end at the bundle stages, what documents pre-proceedings were written in Polish, some of the documents are crucial in letting parents have a better understanding of the issues afoot, I feel that there could be a grater possibility that the parents may not have fully understood the concerns and issues from the L.A
In a round about way I feel that because the L.A are the applicants then they should personally foot the bill, or invest in the translation software themselves, thus avoiding unnecessary delay and applications like above having to be determined, accumulating into saving substantial costs.
Jerry, firstly those translation programmes don’t have the accuracy required (you can ask regular commentator Andrew about how inaccurate my use of one to translate things like “Open a can of judicial whoop-ass” into Latin was)
Secondly, I would at the moment need to buy a Polish one, a Slovenian one, a Slovak one, a Latvian one, a Lithuanian one, a Ghanian one, a Tunisian one…. I could go on. Thirdly, whilst I think it is fair for the LA to translate the initial statement, threshold and care plan, why should I pay for translation of documents that I DON’T rely on – say an expert instructed by the parents, or the statement of the mother, or an aunt or uncle? Why should I pay for translation of the Guardian’s final report?
Fourthly, if the LA’s are going to pay for this, then some areas (Croydon and Kent spring to mind, as does London) who have a heavy mix of ethnicity, are going to disproportionately incur costs compared to somewhere like Lincolnshire or Norfolk where there’s not so much of an ethnic mix. And none of us have the money to pay the sort of costs that are talked about here.
The State has a duty to comply with article 6, it is the Legal Aid Agency that is the statutory provision of services to comply with article 6.
“why should I pay for translation of documents that I DON’T rely on”
Indeed so, I saw this to be what Munby was getting at in the previous case, I do see your point entirely with the diversity of the parents, from all walks of life, I think another most probable case to reflect on as well was the Blind and Deaf case from I think it was in 2013 – its not just a language barrier that could cause these problems.
What I was trying to point too was making sure these issues are dealt with prior to going to court, I feel that when a Judgment is made like this one the peripherals are missed, how long does it take these days to get anything in writing from the L.A.A or play the chasing game, all the while the parents and child/ren are left in limbo while the specifics are dealt with, surely there is another pragmatical way to deal with these things, we all know the issues courts often face with Capita Translation Services, is this matter one for L.A.A to regulate on or do we need a PD with teeth, I just don’t know, like you say in the initial blog post your seeing more parents from wide and diverse backgrounds which will only increase if Cafcass figures are to go by.
I’d completely agree that under the current Regime, we seem to have moved further and further away from Children and People as individual humans with needs and wants and dreams and yes flaws, and just got more and more absorbed in Process. It simply does not feel the way that it used to, when you are in Court. The Process is so overwhelming that you can easily forget what is really involved. Which, cynically, I suspect is partly the point.
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Why can’t the LA/accuser/cause of the court case pay for it, with the court appointing the translator (to avoid conflict of interest) with an order not to leave anything out.
At £38 a page I offer my services *waves.
And I’m sorry about Scarlet, even if it did make me lol