Tag Archives: legal aid agency

Passage to India (and laying the smackdown on the Legal Aid Agency)

Posted on August 5, 2014 by suesspiciousminds

There seems to be increasing amounts of litigation about children being taken on holiday to countries outside of the Hague Convention, particularly when the children are the subjects of private law dispute about contact and residence (or as I now have to call it but won’t ,  “Child Arrangements”)

 

[If you want to skip to the bit where the Judge rips the LAA a new one, I’ll understand, you can come back afterwards if you’re interested in the background. Scroll down to the bit that says “SMACKDOWN!”]

There was one about Iran recently,  Re H (a child) 2014   http://www.bailii.org/ew/cases/EWCA/Civ/2014/989.html

 

This one is about a trip to India that the mother wanted to make with the children.  Re AB (A child: Temporary Leave to Remove from the Jurisdiction : Expert Evidence) 2014   heard by His Honour Judge Bellamy sitting as a High Court judge.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/2758.html

 

Why this particular case is helpful is that the Court managed to get some expert legal advice from the Indian jurisdiction, notably on what might happen if the mother refused to return the children. This might save others in the same position hours of difficult research, so it is useful that the Court set it out here:-

 

ANSWER TO QUERIES

(i) What is the legal position in India if the Mother does not return to the United Kingdom with the child and remains instead with her in India? What impact, if any, would be made by pre-existing orders from the High Court in England making declarations of habitual residence in England and mandatory orders in relation to the return of the child by a certain date?
Answer

If the mother does not return to the United Kingdom with the Child, the father will have to bring a claim for custody in India under provisions of Hindu Minority and Guardianship Act 1956. The pre-existing orders from the High Court in England making declaration of habitual residence in England and mandatory order in relation to the return of child by a certain date will only be one of the factors to be considered and court will draw up independent judgment on merits having regard to welfare of the children.

(ii) What legal remedy would the father have, and what procedure would apply if he found himself having to take steps to effect the return of the child to the United Kingdom? What would be the likely timescale, cost and likelihood of success?
Answer

Father would have to file an application for custody of children under the provision of Hindu Minority and Guardianship Act. The proceedings may take from 1 year to 2 year and likelihood of success cannot be predicted as it will be dependent on Court’s fact finding to ascertain best interest and welfare of the children in deciding the custody rights.

(iii) As India is not a signatory to the Hague Convention, is there any other Agreement or Treaty in place with the United Kingdom which would assist in alleviating the Father’s concerns or in assisting if the child was not to be returned?
Answer

No there is no other treaty except treaty to enforce judgements passed by reciprocating courts in UK and India, however in matters of child custody, courts will not pass summary judgements and will pass independent judgement considering welfare of the children.

(iv) Is there scope for the mother obtaining a Mirror Order on her arrival in India? If so, what is the relevant procedure and what protection would such order give in ensuring the return of the child to the United Kingdom?
Answer

No, Courts in India will not pass mirror orders but will pass independent orders considering welfare of children.
 

(v) Are there other practical or legal safeguards which could be put in place before or on the Mother’s arrival in India? For Example (sic), requiring family members to take oath in relation to not assisting in the retention of the children, or lodging the children’s passport with a British Embassy or another place?
Answer

Since the foreign custody orders cannot be enforced mechanically, it is suggested that in the event of any litigation in the foreign country of habitual residence, a letter of request be obtained from the UK court in which litigation is pending for incorporating safeguards and conditions to ensure the return of the minor child to the country of normal residence.
This letter of request should be addressed by the UK court to the Registrar General of the High Court within whose jurisdiction the estranged spouse is residing with the minor child. It should also be specifically mentioned that the passports of the parent and the child should be deposited with the Registrar General of the state High Court to ensure that the child is not taken away from the jurisdiction of the [state] where he or she is confined.’

 

The answers are both technical and practical, so useful to others in the same position.

 

You might remember in the distant past, His Honour Judge Bellamy encountering much the same issues and having the ridiculous position of the Legal Aid Agency refusing to pay for the expert to answer those vital questions (presumably on the basis that English lawyers could magically find the answer to these questions in any other given national jurisdiction)   Re R (children : temporary leave to remove from the jurisdiction)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

 

So, it is impressive that the report was produced here. Let’s have a look at how.  Clue – it was not done simply, and the Legal Aid Agency showed a painful lack of knowledge of the Court of Appeal’s decision that their previous policy of insisting that they would only pay for reports if EVERYONE was paying an equal share was unlawful.

 

42. This is the second time this year that it has been necessary for me to consider the conduct of the Legal Aid Agency when dealing with an application for prior authority to incur the fees of an expert in an application for the temporary removal of a child to a non-Hague Convention state – see Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam). In that case I was critical of the LAA (see paragraphs 81 to 97). Before deciding whether further criticism is merited it is necessary to consider the history of the application for prior authority.
 

The mother’s application for prior authority

43. As I have noted, the expert proposed by the mother was Mr Ravindra Kumar. Mr Kumar is a legal associate with Singhania & Co, a firm of ‘Solicitors & Indian Advocates’ with offices in India and London. In his curriculum vitae Mr Kumar says that he is ‘a consultant in Singhania’s litigation group, concentrates his practice on handling litigations in UK and in India. He has advised clients on Indian laws and India-specific issues including family laws and matrimonial laws issues. Maintenance and Adoption Laws issue. Mr Kumar had given expert witness evidence on issues pertaining to India laws on matrimonial matters, wills and contacts issues. Affiliations: Supreme Court Bar Association [SCBA], India. Delhi High Court Bar Association [DHCBA], India’.
 

44.  I heard the mother’s application for permission to obtain expert evidence on 13th June. I was satisfied that expert evidence was necessary and that Mr Kumar was an appropriately qualified expert. I decided that the cost of the expert evidence should be borne by the mother. In an extempore judgment I said,
 

8. There can, in my judgment, be no doubt as to the need for an expert’s report in this case. The law relating to the reliance upon expert evidence in Children Act proceedings is now to be found at s.13(6) of the Children and Families Act 2014 of which reads:
‘The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.’
There is in this case absolutely no doubt that expert evidence is necessary.
9. The issue that then arises is who is to pay. The mother is publicly funded and the father is a litigant in person. The father’s means are extremely straightened. He works for [a supermarket] and has an income of £1,200 per month out of which he has mortgage repayments of £500, car insurance of £28, fuel of £300, a mobile phone contract of £42, electricity of £76, food of £178 and finally a debt management payment of £76. The father has produced evidence from a debt management company which shows that the £76 per month that he is paying is for the payment of some eight debts which together amount to around £6,500. There can be, in my judgment, not the slightest doubt of this father’s inability to be able to afford to pay.
10. If the father cannot pay, is it appropriate to require the mother to pay for the whole of the costs of this report? In my judgment it is, and for two reasons. The first reason is the obvious one that it is her application for the temporary removal of AB from the jurisdiction. It is she who wants to do something that potentially could cause the breakdown of contact between AB and his father, and could potentially leave the father in an extremely difficult position in trying to right a wrong. Therefore, it is only just, in my view, that she should bear the costs of paying for that report, and that would be the case even if she were not publicly funded. The second reason why it is appropriate for her to pay the costs is because the father simply cannot afford to pay, of that I am in no doubt.
11. The position with respect to the Legal Aid Agency funding the entirety of the costs of an expert under one party’s public funding certificate is an issue that has been considered by the court twice over the course of the last twelve months. Firstly in the decision of Ryder J (as he then was) in JG v The Lord Chancellor & Ors [2013] 2 FLR 1174 and more recently by the Court of Appeal overturning the decision of Ryder J in that same case in JG v The Lord Chancellor & Ors [2014] EWCA Civ.656. In that case it was argued on behalf of the Lord Chancellor and the Legal Aid Agency that the normal rule was one of equal apportionment of expert costs amongst all parties to proceedings. At para.86 of the judgment of Black LJ in the Court of Appeal, she said this:
‘I do not accept that there is a normal rule of equal apportionment of the costs; in my view, like so many of the issues that arise in this appeal, it all depends on the particular circumstances of the case.’
At para.90, having referred to three authorities, she said this:
‘What I draw from the three authorities to which I have just made reference is that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings and that that discretion must be exercised bearing in mind all the circumstances of the particular case.’
Then at para.93, she said this:
‘None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to “the principles on which the discretion of [the] court is normally exercised” in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor’s submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of s.22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the costs of the expert. In such circumstances, s.22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.
The reference in her Ladyship’s judgment to s.22(4) is to s.22(4) of the Access to Justice Act 1999.
12. In light of her Ladyship’s comments, I am in no doubt at all that it is right to say in this case that even leaving to one side the ability to fund the costs of an expert report, the cost of the expert report proposed in this case should be borne entirely by the mother. The fact that she is publicly funded makes no difference to that conclusion. There is, as I have already said, the subsidiary point that the father simply cannot afford to pay.
13. It is my sincere hope that the problems encountered by the court and the parents in Re R (Children: Temporary Leave to Remove from Jurisdiction) will not be visited again upon this mother in this case. I shall make the order giving permission for the expert’s report. I approve the draft letter of instruction, and the costs will be limited to £1,000. The costs will be met by the mother and I deem that to be a reasonable and proportionate expense on her public funding certificate. I direct that there be an expedited transcript of this judgment at public expense to assist the mother in obtaining prior authority.
45.The Court of Appeal’s decision in JG v The Lord Chancellor & Ors was handed down on 21st May. The mother’s application for prior authority was sent to the LAA a month later, on 20th June. The application was made in the LAA’s prescribed form APP8A and was submitted together with relevant supporting documents. Following an enquiry as to progress, the application was re-sent by e-mail on 3rd July.

 

It seems pretty obvious that following JG v Lord Chancellor, that the Legal Aid Agency would have notified their front line staff that the previous policy was not going to fly anymore, and that a stock refusal to fund assessments that the Court had deemed necessary just because there was another party who wasn’t paying an equal share would not do at all. But no

 

46. An e-mail response from the LAA on 3rd July suggests that the writer of that e-mail was unaware of the Court of Appeal’s decision in JG v The Lord Chancellor & Ors. The e-mail reads:
 

47. ‘I can confirm on the information provided we would expect the costs to be apportioned between the parties as per S22(4) AJA 1999 which expects all parties to bear an equal share in the costs of an expert. The costs were originally being shared between the parties therefore it is not considered reasonable to transfer the burden of costs onto the publically (sic) funded party. We will need to see evidence to satisfy itself that the father should share in the costs and the court will need to undertake a robust assessment of the father’s means.’
The mother’s solicitors replied on 8th July. By then they had received the transcript of my judgment of 13th June and attached it to their response. Initially, it appeared that my judgment would help to resolve the issue. On 11th July an e-mail from Ann Davies, a senior caseworker at the LAA, said,
 

48. ‘Thank you for your e-mail and confirm I have reviewed our earlier decision. An authority will be issued in this matter however, despite my search of our completed applications I have been unable to find your APP8A…Please e-mail me a copy to enable me to consider this properly…’
The mother’s solicitor had already sent the LAA an application for prior authority in form APP8A on 20th June and on 3rd July. Form APP8A was sent to the LAA for a third time, by e-mail, on 14th July.

49. The optimism generated by Ms Davies’ e-mail was misplaced

 

The LAA refused the assessment, and refused it again, and again, and a fourth time. They moved on to a whole new area to get bogged down in, which was that the expert was a qualified solicitor, and thus wasn’t an expert.  The Judge disagreed

 

Is Mr Kumar an expert?

56. In proceedings in the Family Court, the position concerning expert evidence is clear. The Family Court Practice 2014 states (p.2009) that.
 

‘The general rule is that a witness may only give evidence as to fact observed by them. That rule is overridden in the case of opinion evidence given by a person whose expertise justifies the court in receiving that opinion.’
Hershman & McFarlane Children Law and Practice states (C3057) that,

‘It is for the court to determine in each case that the witness has the necessary expertise to come within the exception to the normal rule that opinion evidence is not admissible.’
Section 3(1) of the Civil Evidence Act 1972 provides that,

‘Subject to any rules of court made in pursuance of…this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.’

57. Section 4(1) of the Civil Evidence Act 1972 is also relevant. It provides that,
 

‘It is hereby declared that that in civil proceedings a person who is suitably qualified to do so on account of his knowledge or experience is competent to give expert evidence as to the law of any country or territory outside the United Kingdom, or of any part of the United Kingdom other than England and Wales, irrespective of whether he has acted or is entitled to act as a legal practitioner there.’

58. In the circumstances of this case I am in no doubt that Mr Kumar is ‘qualified to give expert evidence’ (s.3(1) of the Civil Evidence Act 1972) and is properly to be regarded as an expert in Indian law.

 

I don’t know what the Latin for ‘stick that in your pipe and smoke it is’, but it probably should be inserted at the conclusion of this section.

 

[The joy of google – it is  Habeto eas solus, qui in vobis est, ut fumo et tibia canentium  – feel free to sprinkle that into your skeleton arguments if you feel bold ]

 

With all this in mind, those of us who read H H J Bellamy’s judgment in Re R are waiting for him to Etiam iuvat asinis  or indeed  ut in Republica, asini eorum,    [either  Apply Boots to Asses, or Get Medieval on their ass, depending on your preference]

 

I was not disappointed

 

 

SMACKDOWN  SMACKDOWN SMACKDOWN !!!!

 

Discussion and conclusions

It is a matter of concern that two months after the Court of Appeal handed down its decision in JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 a senior case worker and a Director should both reject an application for prior authority by advancing arguments based on an interpretation of s.22(4) of the Access to Justice Act 1999 which had been so roundly rejected by the Court of Appeal. That, though, is not the only concern about the approach of the LAA in this case.
 

As I noted earlier, the 2013 Standard Civil Contract does not define the word ‘expert’. That is unsurprising. The determination of whether expert evidence is necessary in order to resolve a case justly and whether a particular witness ‘is qualified to give expert evidence’ (s.3(1) of the Civil Evidence Act 1972) are issues for determination by the court not by the LAA. I am concerned that in this case the LAA should have disregarded a decision by the court that Mr Kumar is an expert. In my judgment it was not open to the LAA to disregard a judicial decision on this issue.
 

The Standard Terms of the 2013 Standard Civil Contract define the term ‘Approved Third Party’ as someone engaged by a party to the Contract ‘to undertake non-legal work ancillary to Contract Work, including experts’. The expression ‘non-legal work’ is not defined. In my judgment, it includes giving expert advice on the law of any country or territory outside the United Kingdom. Whether the ‘expert’ is an academic specialising in that area or a person who is a practitioner in that foreign state is immaterial. It is equally immaterial if such a practitioner happens to have dual qualification enabling him also to practice law in England and Wales. I reject Ms Davies’ analysis and interpretation of the 2013 Standard Civil Contract.
 

I also reject Ms Davies’ attempt to pray in aid the provisions of the Civil Legal Aid (Remuneration) Regulations 2013. The regulations do not define the word ‘expert’. Ms Davies refers to the 63 different categories of expert set out in the Table which follows paragraph 1 of Schedule 5 of the regulations. The point made appears to be that there is some significance in the fact that nowhere in this list is there ‘provision for legal work’. It is clear from Schedule 5 paragraph 3 that the list of experts in the Table is not intended to be either an exhaustive list of the categories of experts for which fees will be paid by the LAA or an indicative list of the categories of expertise in which expert evidence will be funded.
 

All of the issues I have raised so far give rise to concern about the adequacy of training for those members of LAA staff responsible for determining applications for prior authority.
 

In addition to these particular issues I also have two general concerns. Firstly, I am concerned that the mother’s solicitors had to submit their application for prior authority three times before the LAA finally acknowledged that it had received a complete set of documents. I am also concerned that to arrive at the stage at which the LAA appeared to agree in principle to fund a non-solicitor expert in Indian law took more than four weeks and in excess of 20 letters and e-mails between the solicitor and the LAA. In Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) I expressed concern about a similar state of affairs in that case. I said that,
 

’95. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.’
When considered alongside Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) the facts of this present case strongly suggest that, administratively, the LAA is disorganised. The consequences of this for litigants and their hard-pressed solicitors are matters of concern.

Secondly, I am concerned about what appears to be resistance by the LAA to the granting of prior approval for the use of an expert as to the law of a foreign state in connection with an application for temporary leave to remove a child to a non-Hague Convention country. In Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) the correspondence between the LAA and the mother’s solicitor suggested that the LAA was highly resistant to meeting the cost of such an expert The correspondence between the LAA and the solicitor for the mother in this present case gives the same impression.
 

In light of my further criticisms of the LAA I direct that the mother’s solicitor shall forthwith forward a copy of this judgment to the Chief Executive of the LAA.

 

 

I will add, simply Solum versus est, et ut ‘quia, ut dicit Bellamy saxum iudicis gelu

 

 

[For non-wrasslin’  fans or non-Latin speakers  –  “And that’s the bottom line, cos Stone Cold Judge Bellamy says so” ]

 

Can I get a "Hell yeah!" ?

Can I get a “Hell yeah!” ?

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Legal aid for section 51 applications – contact post adoption

Posted on March 17, 2014 by suesspiciousminds

Forgive me for this, because it is going to be dryer than eating a packet of Jacob’s Cream Crackers in the Gobi desert, but it is potentially important, and might save someone else an hour of slogging through law to find the answer.

 

“Can you, or your clients,  get legal aid to help you make an application for post adoption contact, when the section 51 provisions come into force?”

 

 

If you haven’t read the preceding blog, none of this s51 stuff will make any sense, so you might want to do that first.

 

There’s a bit tucked away in the Children and Families Act 2014, that specifies that there are some changes to the Legal Aid, Sentencing and Punishment of Offenders Act  2012  (LASPO).

 

Why does that matter? Well, because LASPO is what decides whether a person can get legal aid to make their application 

 

[It also probably has the unique distinction of being a piece of legislation that every English lawyer can agree about hating. Usually, even if an Act comes in that is stupid and frustrating, say the “Hairdryers – Prohibition against making them out of Ice Act 2009”  you can find a couple of lawyers who made some money out of training on it, or suing someone for breaching the Act, or defending someone accused of breaching it.  This one, everyone hates. And you can’t even think – well, I’m diametrically opposed to everything that LASPO stands for, but I can still admire it as a beautifully crafted and mechanically sound piece of drafting. It isn’t that, either]

 

This is what s9 (12) of Children and Families Act 2014 says:-

 

 

(12) In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of

Offenders Act 2012 (civil legal services)—

(a) in paragraph 12(9) (victims of domestic violence and family matters), in

the definition of “family enactment” after paragraph (o) insert—

“(p) section 51A of the Adoption and Children Act

2002 (post-adoption contact orders).”, and

(b) in paragraph 13(1) (protection of children and family matters) after

paragraph (f) insert—

“(g) orders under section 51A of the Adoption and Children Act 2002 (post-adoption contact).”

 

[The Children and Families Act 2014 is no Mona Lisa of the drafting world, either, to be frank]

 

Which brings the potential that section 51 applications MIGHT be eligible for legal aid.

 

Under LASPO, there are two distinct categories

 

1)     Cases which are within scope, and will be funded if there is means and merits to the application, but are the SORT of cases that in principle that legal aid can be given for  (those are ones that are contained in Part 1 of Schedule 1 of LASPO, so you can see that there is POTENTIAL for s51 applications

 

2)     Cases that are not within scope, but MIGHT be funded if the Legal Aid agree that there are exceptional circumstances that justify it  (in practice, no chance)

 

 

You find that explicitly in LASPO, though written in oblique language

 

9 General cases

(1)Civil legal services are to be available to an individual under this Part if—

(a)they are civil legal services described in Part 1 of Schedule 1, and

(b)the Director has determined that the individual qualifies for the services in accordance with this Part (and has not withdrawn the determination).

 

10 Exceptional cases

(1)Civil legal services other than services described in Part 1 of Schedule 1 are to be available to an individual under this Part if subsection (2) or (4) is satisfied.

(2)This subsection is satisfied where the Director—

(a)has made an exceptional case determination in relation to the individual and the services, and

(b)has determined that the individual qualifies for the services in accordance with this Part,

(and has not withdrawn either determination).

(3)For the purposes of subsection (2), an exceptional case determination is a determination—

(a)that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of—

(i)the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii)any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b)that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

 

 

[What section 10 means in practice is “we were obliged to say that this Act was compatible with the Human Rights Act, so we stuck in this exceptional provision for legal aid to be granted in cases where NOT granting it would be a breach of Human Rights, but actually dishing it out to real people, for real cases? I should cocoa”    *]

 

 

*I wish people said “I should cocoa” more often

 

 

Anyway, the addition of s51 applications to Part 1 Schedule 1 means that the applications MIGHT fall within scope for legal aid (and thus be applications which might get legal aid after a means and merit test is applied)

 

However, it is not as simple as that (sorry) because where s51 gets placed in Part 1 Schedule 1 of LASPO means that these applications are only in scope in narrow circumstances, and for all others you are stuck with exceptional (remember, when I say exceptional here, the statutory definition of whether that will actually occur is  “as likely to happen as a comet made of solid gold landing in your back garden and striking oil where it lands”      –    The Let’s Pretend Something is Available when it really isn’t Act  2014 section 1(1) )

 

 

 

So, in Part 1, Schedule 1 of LASPO  (as amended by Children and Families Act 2014),  applications under s51 come in two possible categories where the application can qualify for public funding

 

 

Paragraph 12

 

Civil legal services provided to an adult (“A”) in relation to a matter arising out of a family relationship between A and another individual (“B”) where—

(a)there has been, or is a risk of, domestic violence between A and B, and

(b)A was, or is at risk of being, the victim of that domestic violence.

 

 

So, if you can persuade the Legal Aid Agency that the reason you are applying for an order for post-adoption contact is that you are the victim of domestic violence or are at risk of domestic violence and that the application is in some way a remedy for that, you might get legal aid.

 

[Is it just me, or does that seem inherently unlikely? I mean, I have a creative brain and love thinking up crazy scenarios, but I’m struggling to come up with a set of circumstances that would fit that]

 

I suppose, racking my brain, that given that s51 allows for the Court to make an order that there shall be no contact, there MIGHT, just MIGHT be a conceivable circumstance in which the post-adoption contact order application might be to stop the perpetrator of domestic violence having contact and that would in some way alleviate the risk to the applicant. 

 

 [It is also possible, and perhaps more likely,  that this is referring to the adopters themselves as applicants for an order for NO contact to an individual, though the amount of adopters who would pass the means element of the Legal Aid test is microscopic, I suspect]

 

 

The other category is

 

Paragraph 13

 

Protection of children and family matters

13(1)Civil legal services provided to an adult (“A”) in relation to the following orders and procedures where the child who is or would be the subject of the order is at risk of abuse from an individual other than A

 

 

So the applicant would need to persuade the Legal Aid Agency that the purpose of the application for post-adoption contact is to protect the child from risk of abuse from a named individual  (that individual has to be someone other than the applicant)

 

If you are the biological mother, you MIGHT be able to persuade the Legal Aid Agency that the risk of abuse comes from the child’s father and not yourself, or vice versa.  But I’m struggling to see how you persuade the Legal Aid Agency that the right way to protect the child from the risk of abuse is that you have some post adoption contact.

 

I again think that this is probably aimed more at financially impoverished adopters who meet the means test for Legal Aid, and are saying that contact poses a risk of abuse to the child from the parents.

 

 

I’m afraid that all of that was very long, because it is complicated, but how it ends up, it seems to me, is that section 51 applications aren’t going to be backed by Legal Aid UNLESS the LAA agree that there are exceptional circumstances   [solid gold comet strikes oil – you are now so rich you don’t need Legal Aid]

 

You could argue that if Parliament genuinely intended section 51 applications to be made, and for deserving cases to result in section 51 orders, they could have placed such applications squarely in Part 1 Schedule 1 of LASPO without the bizarre qualifications.  The gatekeeping provision could have been that the Legal Aid Agency would have to determine whether the application had sufficient merits to justify the funding being awarded.

Unless and until either the English Courts or the ECHR give a decision saying that failure to provide funding for such an application is in breach of human rights, it looks as though any parent making such an application would be doing so as a litigant in person.  Good job the legislation is written in such plain English.

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Legal Aid Agency wasteful and inefficient (also important news about the Pope’s religion of choice)

Posted on March 12, 2014 by suesspiciousminds

Re R (Children : Temporary Leave to Remain) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

This was a private law case that really hinged on the fact that parents who were involved in difficult litigation could not agree about the mother taking the children to India on a holiday. The father was concerned that there was a risk that mother would not return from India with the children, and that India not being a Hague Convention country, that would mean a very costly and time consuming process to start litigation in India.

The Court, whilst feeling that mother’s RISK of doing that was relatively low, considered that nontheless there was a risk and the consequences could be very devastating. Within the proceedings therefore, an expert report was ordered by the High Court, determining that it was necessary to resolve the dispute justly and inform the Court. Part of that report was to examine the Indian law to see whether anything could be put in place.  The costs were to be divided equally between the mother and the Guardian’s public funding certificate.

The LAA refused to pay for this, and six months of bureacratic conversation and form-filling took place.

In an attempt to cut through all of this, King J set out in detail in an order why the report was necessary and why the costs were split in that way (rather than 3 ways – mum, dad, Guardian)

    1. I declined to proceed with the hearing as a contested hearing. I listed the application for directions before Mrs Justice Eleanor King as Family Division Liaison Judge for the Midland Circuit. The application came on before Eleanor King J for directions on 28th November. The preamble to her order contains the following:

 

‘And Upon the Court observing that:

a. the expert’s report directed at paragraph 1 of this order is absolutely necessary for the proper determination of this case; this is both the view of the learned Judge and represents settled authority from the Court of Appeal; the case cannot be fairly decided without the expert;

b. the report is appropriately the instruction of the mother and the Children’s guardian; it is not properly the instruction of the father who has already filed evidence in relation to the disputed international legal issue; the proposed report does not, accordingly, ‘support’ the father’s case; rather it is obtained by the mother to meet the case brought by the father, and is necessary for the Children’s Guardian, in order that she can advise the court from a position of informed neutrality.

c. the assertions at (b) above are determinative of the question of whether instruction is shared by the father and would be so whether or not he were publicly funded; as such s.22(4) of the Access to Justice Act 1999 is not activated;

d. any further delay in obtaining the expert report is likely to jeopardise the current hearing dates, engender further costs (including publicly funded costs) and prejudice the interests of the children.’

    1. Eleanor King J went on to order that the mother and the guardian have permission to instruct Professor Martin Lau to provide an expert opinion in relation to the relevant law obtaining in India. She approved his hourly rate (£175 per hour) and capped his fees at £2,100 plus VAT. She directed that the final hearing should take place before me.

 

  1. The Legal Aid Agency again refused to grant authority for the instruction of an expert. There has been no alternative but to determine this application without having the benefit of expert evidence. That is an issue to which I return at the end of this judgment.

 

That didn’t do the trick – as indicated, the Court actually had to determine the case without the expert report that they had already ruled was “necessary” to properly resolve the case.

This is an issue that the Court of Appeal had looked at in another case called Re R

    1. In Re R (A Child) [2013] EWCA Civ 1115 Patten LJ, giving the judgment of the court, repeated a point made in previous cases:

 

’23. The overriding consideration for the Court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child. Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the Court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail. This will therefore routinely involve the Court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the child’s return if that transpires. Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK-based parent. Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.’

 

That’s pretty compelling authority for the use of experts in that scenario – one can’t expect a UK lawyer, or a UK Judge to understand the intricacies of family law in each and every non-Hague Convention country, and it is vital to know what those safeguards might be.

The final paragraph of the Court of Appeal decision in Re R anticipates the problems of funding such expert evidence

’28. Before leaving this case we wish to draw attention to a real difficulty that seems likely to be a feature of future cases where application is made to remove a child temporarily to a non-Hague Convention state. We have already restated the importance of the court having access to clear and reliable expert evidence before being in a position to determine the application. Both parties in the present case are legally aided but counsel have confirmed that, following recent changes to the provision of Legal Aid, public funding will no longer be available to parents in these applications (save where there has been domestic violence). The question of how the necessary expert opinion is to be paid for is therefore likely to be a real issue in a significant number of cases. We see this as an additional difficulty facing judges and the adult parties (who may well themselves be litigants in person). The questions of how and to whom particular cases are allocated to individual judges are a matter for the President of the Family Division. Our present purpose is not to trespass upon the President’s responsibility but simply to flag up this new potential complication for cases which are already at the most difficult end of the spectrum. In doing so we would simply wish to repeat Thorpe LJ’s exhortation for these cases ordinarily to be dealt with by the judges of the Division.’

 

As can be seen from this case, the Court of Appeal were prescient.

Bellamy J concludes his judgment with a coruscating evaluation of the Legal Aid Agency’s failings in this case, which meant that they in effect defied the orders of High Court Judges. There’s loads of it, and if you’ve ever had to wrestle with the LAA, it warms the cockles of your heart to see them take a kicking.

The Judge opens with this

I return finally to my concerns about the negative, costly and unhelpful impact the Legal Aid Agency (‘LAA’) has had in this case. If this case is at all illustrative of the way the LAA normally discharges its responsibilities then that is deeply troubling. My concern that it might be illustrative of a wider malaise arises not only from anecdotal evidence given to me by solicitors in my role as a Designated Family Judge but also from the observations recently made by Holman J in Kinderis v Kineriene [2013] EWHC 4139 (Fam).

and then goes on to consider the labyrinthine process

    1. As a result of my order of 18th July giving leave to instruct an expert in Indian law and limiting his fees to £2,500 plus VAT, the mother’s solicitor sent the LAA an application for prior authority in LAA Form APP8. Form APP8, be it noted, is a lengthy (11 page) complex form which needs to be completed with care. Failure to complete it properly is almost certain to lead to the application being refused. Completion of this form is, of itself, a time consuming task.

 

    1. On 13th August the LAA wrote to the mother’s solicitor refusing to grant prior authority. The letter is clearly a standard letter. It sets out five reasons for refusal. In summary, these are, (i) the estimate of the expert’s fees is excessive, (ii) no alternative quotes have been obtained, (iii) there is insufficient breakdown of the costs to be incurred, (iv) the expert’s costs should be borne by or shared with the other party, (v) the application does not appear to fall within the regulations. The letter ends by saying, ‘since the introduction of the 2010 Standard Civil contract and the 2012 Family Contract there is no right of appeal’.

 

    1. On 2nd September I was asked to reconsider my decision that the cost of the expert should be borne solely by the mother. I declined. The mother’s solicitor made a second application to the LAA, again in Form APP8. That application was again refused. There followed an exchange of e-mails between the solicitor and the LAA which were discouraging.

 

    1. I have seen the APP8s that were submitted. They appear to me to have been properly and adequately completed and to have been supported by relevant documentation.

 

  1. As I noted earlier, on 28th November there was a hearing before Mrs Justice Eleanor King in which she gave new directions for the instruction of an expert. She ordered that the expert’s costs should be borne by the mother and the children’s guardian, and explained why s.22(4) Access to Justice Act 1999 did not apply. She also had a telephone conversation and an e-mail exchange with Michael Rimer, Head of Litigation Team and Senior Legal Adviser with the LAA. Mr Rimer is the agreed point of contact between the judiciary and the LAA in cases where there are funding difficulties. If that dialogue led to quiet confidence that progress could be made, that confidence was misplaced.

 

(I particularly like that last line)

and finally wraps up with this  (having recounted some spectacular missing the point emails from various workers at the LAA

    1. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.

 

    1. There is a further point which follows on from that last point. On 28th November Mrs Justice Eleanor King gave clear, detailed case management directions in respect of expert evidence and even went so far as to set out her reasons for not ordering the father to pay a proportionate share of the expert’s fees. Her case management directions on this issue have effectively been overridden by the LAA. That is simply unacceptable.

 

  1. In light of my criticisms of the LAA I direct that the solicitor for the Children’s Guardian shall forthwith forward a copy of this judgment to the Chief Executive of the LAA and order that he shall respond to it in writing within 28 days.

 

 

I expressed some doubt via Twitter that the response in writing would (a) ever be received and (b) ever be published, but I am reassured on both points. Once it is published in anonymised form, I will gladly report on it.

There are some “costs against third party” decisions from Courts, and it is clear that expenditure did get incurred both for the parties and the Court – it seems to me that it is legally possible to make an order for costs against the LAA.  It does raise the obvious issue with the parties that if they are being paid by legal aid, then the LAA are ALREADY paying their costs, so a costs order there does nothing at all. But it might be possible to calculate the time wasted by the High Court judges (who are not a free, or inexpensive resource) and decide that the LAA should recompense HMCS for that waste of time. If the father was paying privately for the litigation (and I simply don’t know the answer to that) then I would imagine that the wasted costs bill for that would make the £2,100 the LAA were quibbling about pale in comparison.

 

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LAA LAA land (or judicially reviewing the legal aid bods and winning)

Posted on May 2, 2013 by suesspiciousminds

Ooh, exciting.  I am grateful to M’learned friend Miss Eleanor Battie of counsel for highlighting this case to me.

T, R and Legal Aid Agency 2013

http://www.bailii.org/ew/cases/EWHC/Admin/2013/960.html

Miss Battie has done a very good summary of the case here, on the UK Human Rights blog

LAA must give reasons about funding expert assessments in care proceedings – Eleanor Battie

In essence, you may recall that the Legal Aid Agency (previously the Legal Services Commission, previously the Legal Aid Board) implemented, with the express authority of Parliament, a series of measures aimed at reducing the burgeoning costs of expert assessments.  That was a fairly laudable aim, there could be no doubt that we had reached a point where the demand for expert reports was so exceeding supply that there was almost a housing-style bubble with experts being able to name their fee if you wanted them to do the work.

Unfortunately, and in classic State grasping control of an issue style, the baby was thrown out with the bathwater.

Almost every case involving an expert became embroiled in a battle of bureaucracy  (I am reminded of A P Herbert’s beautiful expression “I have been engaged in exhaustive, if one-sided correspondence”) where solicitors got the Court to agree the expert assessment that was needed to fight for their client but then it couldn’t happen because the LAA wouldn’t agree to pay for it.

This culminated in the issue coming before the then President of the Family Division, Wall LJ, who found that his request for a representative of the LAA/LSC to attend and clarify things wasn’t complied with, and when he telephoned, was told more or less (and this isn’t really an exaggeration) Oh, we don’t attend court hearings when we’re ordered to, we get so many of those orders, we just ignore them.

But the President reluctantly concluded that the power to order assessments and order that they be paid for (arising from section 38(6), the Family Procedure Rules and the Calderdale case) had evaporated, and it was now the LSC/LAA who had the final say, not the family Court.

This was in A Local Authority v D S and Others 2012 http://www.bailii.org/ew/cases/EWHC/Fam/2012/1442.html

where the President wove a fairly cunning trap for the LSC, although told them up front that this was a trap, and they should be ready for it, that a careful judicial decision that a report was necessary, coupled with careful analysis of why and why the costs were proportionate, would probably pave the way for a judicial review of an unreasonable refusal.

And so we arrived at a mountain of preambles in every single case involving an expert, just in case anyone was going to judicially review the LSC.

We also, in the interim, had Ryder LJ determine that the LSC had the power to say no to paying the costs of an expert assessment where the Court had decided one was needed but the parents had no funding and no money to pay for it.

So, we arrive now at this case, where once again, the Judge asked the LSC to attend/communicate with her and they declined to do so.

The judgment and order directing the expert assessment was very careful and completely D S and Others compliant, yet the LSC refused the assessment.

In the judicial review, Collins J, who accepts from the outset that he is not a family Judge (and thank heavens for that, given that he actually seemed prepared to put the child first, rather than the LAA’s interest), makes it plain that the LSC /LAA have the power to refuse or partly refuse the costs of an assessment ordered by the Court, but that if they do so, they HAVE to give reasons, and the reasons have to take into account that a Judge who knows the case and all of the issues gave a careful judgment saying that the report was necessary.

 [I’m a bit saddened that Collins J, in an otherwise magnificent judgment, resisted the temptation to say “The LAA have great power, but as Spiderman could tell us, with great power, comes great responsibility”.  This is why I will never, ever be made a Judge]

The LAA plead the impossibility of this, saying effectively that they say no so often that they don’t have the resources to give reasons each time.

Collins J rolls up his sleeves, takes firm hold of the baseball bat, and knocks that one clean out of the park.

  1. While there is no statutory requirement for reasons to be given by the defendant, the law has developed to require reasons where fairness so dictates. Cases such as these where children may be removed from parental care involve Article 8 of the ECHR and the welfare of the child which is paramount. There is an obvious requirement that all proper steps are taken to enable a judge to reach an informed decision when dealing with those rights. The parties and the court are in my view clearly entitled to understand why a refusal to allow what the court has considered necessary has been made so that it can, if appropriate, be challenged speedily.
  1. The letter of 19 March 2013 gives no reasons to explain why the full sum put forward is not approved. Since the defendant appeared through its representative, Mr Michael Rimer, at the hearing of S it was clearly aware of the President’s guidance. Guidance in this field from so authorative source as the President, in a reserved judgment after hearing submissions from, amongst others the LSC, gives rise to a public law duty upon the LSC, capable of being enforced, as the President said, by judicial review. Ms Hewson has sought to rely on the real difficulties faced by the defendant in dealing with the increasing number of applications for prior approval. In the S case it had been shown that following the new funding order in October 2011 introduced as part of the legal aid reform programme designed to save costs applications for prior approval of experts increased from 216 in November 2011 to 1855 in April 2012. That increase has, I was told, continued. Ms Hewson said that 4 employees in an office in Wales now had to deal with some 100 applications each week. That I suspect was something of an exaggeration but the point she was seeking to make was that the burden on those responsible for making the decision was such that they did not have the time to enter into any discussion nor to give any substantial reasons. Attempts to save costs in one way can have an effect which increases costs in another. If as a result of the new rules introduced in October 2011 greater pressure is imposed resources must be provided to meet that pressure. In R(H) v Ashworth Hospital Authority [2003] 1 WLR 127 at paragraph 76 Dyson LJ said this:-

“I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not and the sufficiency of resources is irrelevant to that question.”

These observations apply a fortiori where there is an absence of reasons when reasons are required.

I have to say, that I am delighted with the outcome, but rather surprised that the facts of this case got it. The expert assessment was for 180 hours, and the LAA originally agreed 130.

Given that their guidance figures for assessments are FAR FAR FAR below that, and the assessment costs as a whole were over £31,000 when the usual cost of an assessment has now come down to under £5,000 , the LAA would have had, I think, a decent case (had they (a) given reasons and (b) you know, bothered to file a skeleton argument in the JR case) for saying that the costs in this case were wildly disproportionate   (those costs are rather more akin to the residential assessment that the LAA suspected this was in disguise)

 

So, if you do get a cost of an expert declined, make sure you get the reasons from the LAA, and remember that scarcity of resources to give good reasons don’t make inadequate reasons adequate…

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