R (JG) v LSC  EWHC 804 (Admin),  MHLO 76
Payment for expert evidence.
Transcript (Crown Copyright)
R (on the application of JG (a child) (by her children's guardian)) v Legal Services Commission  EWHC 804 (Admin) QBD, ADMINISTRATIVE COURT Mr Justice Ryder 9 April 2013 JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS) MR JUSTICE RYDER: Background 1. JG is a 10 year old girl who brings a claim for judicial review of the decision of the Legal Services Commission [the LSC] not to fund in full an expert report ordered in proceedings under the Children Act 1989 [the 1989 Act] concerning herself. Her litigation friend is the children's guardian appointed to represent her in the Children Act proceedings. Her parents are separated and she lives with her mother, KG. Her father, SG, made an application to the County Court for residence and/or contact with her under section 8 of the 1989 Act on 17 March 2006. 2. The LSC agreed to fund one third of the costs of the expert report on the basis that there were three parties to the proceedings, mother, father and child, but only the child was in receipt of public funding i.e. the LSC agreed to fund the proportion of the costs of the expert which represented the proportion of the parties for whom public funding was provided. The child's case is that the LSC acted unlawfully by not funding the report in full. 3. The Law Society and the Secretary of State for Justice have intervened in the judicial review proceedings. The court is most grateful to them and to leading and junior counsel for all parties for the quality of the written and oral submissions it has received. Cafcass (the Children and Family Court Advisory and Support Service) were invited to intervene but decided not to do so on the basis that no identified interest was incapable of pursuit by those parties accepting the invitation. 4. The court is seised of the question of permission generally and if permission is granted the substantive claim, although permission has already been granted specifically on the illegality limb. In addition, a question of general importance was formulated by the Law Society who submit that in the circumstances identified, the court should direct the children's guardian to instruct an expert to produce the report and give permission to the child to adduce it in evidence. The Law Society submits that this would not be a joint report but a report prepared on behalf of the child and accordingly that is should be funded in full by the LSC. However, perhaps recognising that the report might have limited value in the absence of participation by the other parties, the Law Society proposes that the children's guardian would be obliged to seek to agree with the other parties the identity of the expert and the instructions to be put. 5. On 26 July 2012 the question of general importance was identified by the parties and the court in the following terms: “what the court and the Legal Services Commission may do when a child, who is a party to private law proceedings under the Children Act 1989, has the benefit of services funded for her as part of the Community Legal Service and the court considers (a) that it is necessary that it should receive expert evidence on a particular issue in order to assist it to determine what the welfare of the child requires, but (b) that the other parties, who do not have the benefit of such funding, are then unable to pay that expert's fees and expenses” 6. The question of general importance was framed to reflect rule and practice direction changes to the test in Part 25 of the Family Procedure Rules 2010 [FPR 2010] for the instruction of an expert which took effect at the end of January 2013. It is acknowledged that the court must be astute not to assume that the case management decisions which led to the instruction of an expert in these proceedings would be made either at all or in the same terms under the proposed new rules. 7. In the Children Act proceedings, neither parent is in receipt of Community Legal Service funding for their representation i.e. they have at all material times been litigants in person or self representing parties. I shall use the term litigants in person in this judgment as that is a recognised term used in legislative materials. As a consequence of being joined as a party to those proceedings JG was granted a public funding certificate by the LSC which took effect on 24 October 2008. She is represented by solicitors in accordance with rule 16.4 FPR 2010 and a children's guardian was appointed for her. 8. Whatever the reason for the lack of public funding in the Children Act proceedings in this case, the situation whereby parents will make and pursue private law applications in the family courts as litigants in person will become very common after 1 April 2013. On that date, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force and civil legal aid will now only be available to an adult in very limited circumstances, including for example, to an adult who was or is at risk of being the victim of domestic violence and to an adult where the child who is (or would be) the subject of an order is at risk of physical or mental abuse by another individual (see section 9 of and schedule 1 to the 2012 Act). In none of these circumstances will civil legal aid be generally available to the adult who is alleged to be the perpetrator. 9. A child who is automatically a party or who is made a party to Children Act proceedings in accordance with the Rules retains his or her entitlement to civil legal aid. 10. In practice, as was observed in the recent report 'Judicial proposals for the modernisation of family justice' (July 2012, Judicial Office) at : “the most pressing issue [in private children proceedings] which requires a solution is a mechanism to obtain expert analysis for the court where neither party can afford to pay for an expert and there is no public funding”. 11. The papers in these proceedings disclose the following: 12. When first issued, the child's public funding certificate was limited to a maximum of £5,000 including such disbursements as expert's fees. The limit was subsequently increased in stages over time to £25,000. 13. It appears from the evidence filed within these proceedings that shortly after JG became an assisted person, the children's guardian suggested to her solicitors that it may be appropriate for there to be a psychological assessment which analysed family relations and functioning and the impact of the on-going dispute upon her. One of the contexts for this is that within the Children Act proceedings allegations of domestic abuse had been made by the child's mother and a fact finding hearing took place within which some but not all findings were made. 14. It is appropriate to note that a children's guardian has a duty to safeguard the interests of a child on the hearing of any application and must also provide the court with such other assistance as it may require in accordance with rule 16 FPR 2010 and PD 16A (at the time of the appointment of the guardian in this case the duties were contained in rule 9). PD 16A provides at paragraph [6.1] (formerly [4.11(2)]) that the children's guardian must make such investigations as are necessary to carry out the children's guardian's duties and must in particular: “obtain such professional assistance as is available which the children's guardian thinks appropriate or which the court directs be obtained” 15. That obligation has been the most elusive component of this case, encapsulating as it does something which the children's guardian almost certainly intended in the suggestion made to the child's solicitors: a suggestion which was not carried through into the case management decisions of the court. Had a rigorous analysis occurred of the reason for the request for the expert i.e. its purpose and who wanted it and who might benefit from it, the order in the case would have reflected not what eventually appeared, namely that the child's father in this case would be hampered in the presentation of his case without the expert's report but, that the report was necessary to enable the children's guardian to perform her duties. Alas, the papers do not provide a clear answer to the question why the children's guardian could not advise the court from a social work perspective about family relations and functioning or the impact on the child as one would expect if a guardian was saying 'I need assistance to do my job'. There is no reasoning on the face of the orders of the court or in any record of its proceedings which provides an analysis of what the report was for and hence whether it should have been a report commissioned and funded by one party or a single joint expert report commissioned by all. 16. It is, however, right to comment that the need for an expert psychologist to undertake work within private children's proceedings ought to be very limited and usually confined either to aspects of the needs and behaviours of the child or an alleged parental capability gap relevant to the child's needs where the key issue to be addressed is a risk analysis that is outside the normal social work skill and expertise of a children's guardian. 17. To return to the chronology, an expert was identified by the child's solicitors (Dr D) and draft instructions to the expert were completed by the child's solicitors which were served on the parents with the expert's CV on 13 October 2008. At a hearing on 15 October 2008 the district judge to whom the proceedings had been allocated considered the proposal and the evidence is that he “agreed that in the circumstances such an assessment would be beneficial”. That was no doubt intended to amount to permission which would have been required to adduce expert evidence in private children's proceedings in accordance with the rules then in force. 18. On 22 April 2009 the proceedings again came before the court. There had been no positive activity since October the previous year and the district judge gave directions for the assessment by Dr D which included that the instruction was to be a single joint instruction, that the child's representatives were to take the lead in instructing the expert and that “the cost of the report (was) to be funded by the child, the court considering it to be a reasonable disbursement to be incurred under the terms of her public funding certificates”. The costs direction made by the judge is in what was then and until recently a standard form of order. The limited evidence is that the judge wanted to move things on and one can only sympathise with that intention. 19. There was no consideration at that hearing of the parties' financial means and the child's solicitors did not seek prior authority from the LSC in respect of the expert's fees. They were not obliged to apply for prior authority although had they done so then providing any such application came within the criteria for its grant, the costs incurred within the terms of a prior authority would have been recoverable without deduction. 20. Dr D produced a report dated 9 April 2010 for which an invoice in the sum of £12,000 was received by the child's solicitors (a sum significantly in excess of the expert's initial estimate of £7,540). Although the child's public funding certificate came to be managed as a 'very high costs case' once the costs had reached £25,000, the child's solicitors quite properly made a claim to the LSC for the experts fees already incurred. 21. On 16 May 2011 Dr D gave evidence within the proceedings and recommended that an addendum report be undertaken to include a further assessment of the child's father in the context that he lived with his own parents. On 17 May 2011 an order was made to that effect. Dr D refused to undertake that work until his outstanding fees had been paid and the child's solicitor understandably felt unable to pay those fees and take the risk that they would be unable to recover them. 22. On 21 October 2011 the court recorded on an order that no progress had been made with the assessment of the father or his parents due to funding problems. The recital continued: “Because he will be handicapped in the presentation of his case without it, [the father] wants there to be a further attempt to unlock funding for it. He cannot afford such funding himself” 23. On 23 November 2011 the court made a further order by which it required the LSC to explain its position regarding payment of the expert's fees. The LSC responded by a letter dated 7 December 2011 setting out its position that the order of 22 April 2009 was unlawful because it involved a breach of s 22(4) of the Access to Justice Act 1999. 24. On 8 December 2011 the district judge having read the letter from the LSC purported to amend the order which had been made on 22 April 2009 to read as follows: “The cost of the expert to be funded by the child the court considering them to be a reasonable and necessary disbursement under her certificate and the purpose of the report is solely to establish what arrangements are in her best interests. Furthermore, the court has carried out a means assessment of both parents and found that they are unable to afford any part of these fees…” 25. On 8 June 2012 the LSC made its decision to fund only one third of the expert's fees on the basis that to do otherwise was unlawful in breach of section 22(4) of the Access to Justice Act 1999. In anticipation of that decision, the LSC had written on 9 May 2012 to a circuit judge to whom the proceedings had been transferred as follows: “The LSC view is that it this is a private law dispute between two individuals (as opposed to a case brought by the local authority). [Father] has applied for contact so it follows that he should pay for the reports in support of the application, or the costs of the reports to be apportioned equally between the parties. It cannot be right for the Legal Aid fund to be expected to pay for the entire costs of reports in order to subsidise a private law dispute where neither parent is prepared to pay their share” 26. Had that been the LSC's only submission, it too would have been a questionable analysis of the circumstance in which the expert had come to be appointed. Whatever else it might have been, this was not simply an adversarial dispute between two adults who might or might not have had the resources to fund the same. By the time this letter was written, the child was a party and, in any event, private children proceedings in the family courts are quasi-inquisitorial in nature and the court has an obligation to make a decision in the best interests of the child. That sometimes has to be done without much if any assistance from the parents who are in dispute. The question is how the court should do that in circumstances where the adult parties are unfunded and without means or are simply unco-operative. 27. On 30 June and 6 July 2012 Theis J considered the Children Act proceedings in the context of the intended judicial review claim and directed that the question of permission should be considered on notice on 26 July 2012. Father withdrew his application for a residence order and an addendum report from Dr D is no longer considered necessary. 28. On 26 July 2012 this court granted permission for the child to apply for judicial review on the ground that the proportionate funding decision was allegedly unlawful. The question of whether permission should be granted on any other ground of challenge was directed to be considered at a rolled up hearing alongside the question of general importance. 29. The claimant challenges the LSC's decision not to fund the expert's report in full on three grounds: a) The LSC acted unlawfully in refusing to pay for the report in full; b) the LSC should have appealed the district judge's order; and c) the child's solicitor had a legitimate expectation that the LSC would pay for the report in full 30. The LSC's case is that it did not act unlawfully in refusing to fund in full the expert report in JG's case. The report was produced for the benefit of all of the parties in the case. The normal order for costs in that situation would be that all parties who benefit should share the costs jointly. There was no reason to depart from that approach in this case. The judge ordered that the LSC pay for the report in full because the parents asserted that they could not make any contribution. In those circumstances the requirement that the LSC bear all the costs contravened s 22(4) of the Access to Justice Act 1999 and the LSC therefore acted lawfully in declining to pay all the costs. 31. In answer to the question of general importance the Law Society's proposal is that the child should be ordered to produce the report and adduce it in evidence alone i.e. the report should not be that of a single joint expert. The LSC says that the court should ordinarily require all parties to make an equal contribution to the costs of an expert report i.e. such a report should ordinarily be a jointly instructed expert report. The LSC submit that the Law Society's proposal should be rejected for two reasons: First, it is impractical because the resulting report, being the product of one party's instructions, would be unlikely to command the support of the other parties. The Law Society seeks to address this by imposing a requirement that the guardian consult the other parties. However, the effect of that requirement would mean that the report is produced on a joint instruction and therefore the costs should be borne equally. Second, an order of the kind suggested is contrary to s 22(4) and so could not lawfully be made. The sole reason why, on the approach suggested by the Law Society, the court would direct the children's guardian to produce the report is that the child is in receipt of legal aid and so can afford to pay for it. Such a basis for an order is impermissible in the light of s 22(4). 32. The LSC submits that the parties' Convention rights do not require that the costs of the report be payable other than on an equally shared basis. The effect of the Law Society's proposals is to require the LSC to grant legal aid to the other parties to the extent of requiring the LSC to pay for their share of the costs of the expert report. The Convention does not require that approach. 33. The effect of the Law Society's proposal would also be that in all cases where the child is a party and entitled to public funding and where the court accepted that the non-funded parties could not contribute to the costs of the report, the full cost of preparing the report would be borne by the LSC. This would be so even though the report would in fact benefit other parties as well as the child and those other parties would, in accordance with the Law Society's proposals, participate in giving instructions to the expert. Moreover, this would be the case whether or not the unfunded parties would have met the financial eligibility or merits requirements for the grant of legal aid. Legal background (a) Use of expert evidence in private law family proceedings under the 1989 Act 34. The Family Procedure Rules 2010 (FPR) concerning the use of expert evidence in proceedings under the 1989 Act apply without distinction between private and public children proceedings. The court's permission is required to instruct an expert, to medically examine or otherwise assess a child for the purposes of expert evidence and to call an expert or put in evidence an expert's report (FPR 25.4(1)). 35. In the form that was applicable to these proceedings, rule 25.1 of the FPR placed a duty on the Court to restrict expert evidence to that which is “reasonably required to resolve the proceedings”. The new rule 25.1 which came into force at the end of January 2013 is as follows: “Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”. 36. This change reflects clause 3(6) of the Children and Families Bill which is presently before Parliament. Thus, as Sir Nicholas Wall P noted in A Local Authority v DS  EWHC 1442 (Fam) at [45(ii)] (Re DS), “the test for expert evidence will shortly import the word “necessary”.” Courts will not be able to order expert evidence where this threshold is not met. (b) The process of obtaining expert evidence under the FPR and Practice Directions i. the pre-existing rules 37. The process that was to be followed when permission was sought to adduce expert evidence in children proceedings under the 1989 Act was applicable equally to private and public children cases. As matters stood, it was contained in Part 25 of the FPR as supplemented by Practice Direction 25A “Experts and Assessors in Family Proceedings” (PD 25A). 38. Expert evidence could either be adduced by a single party on its own behalf or jointly with one or more of the other parties through a “single joint expert” (SJE). FPR 25.7 gave the court power to direct that evidence was to be given by a single joint expert “where two or more parties wish to submit expert evidence on a particular issue”. FPR 25.8 made provision about the method for the instruction of a single joint expert. The instructions were to be contained in a jointly agreed letter unless the court directed otherwise (FPR 25.8(1)) and in default of agreement the instructions could be determined by the court on a written request from any relevant party copied to the other relevant parties (FPR 25.8(2)). 39. Paragraphs 4.1 to 4.7 of PD 25A set out the required practice in relation to the instruction of experts including joint experts in children proceedings. For present purposes the important point is that before a proposal for an expert to be instructed was placed before the court, significant duties were placed on the instructing party (or parties, if joint) to establish the cost and suitability of proposed experts. ii. the new rules 40. The effect of the Family Procedure (Amendment) (No 5) Rules 2012 is to maintain the pre-existing rules 25.7 and 25.8 (respectively as rules 25.11 and 25.12). However, a new Practice Direction 25C supplementing Part 25 of the FPR sets out the practice for the use of single joint experts and the process leading to an expert being instructed or expert evidence being used in children proceedings (PD 25C). 41. Paragraph 2.1 of the new PD 25C provides that: “Wherever possible, expert evidence should be obtained from a single joint expert (“SJE”) (emphasis added). To that end, a party wishing to instruct an expert should as soon as possible after the start of the proceedings first give the other party or parties a list of the names of one or more experts in the relevant speciality whom they consider suitable to be instructed” . 42. PD 25C also provides that before the court orders an SJE to be instructed, the parties will have (among other matters) to: a) inform the proposed expert(s) whether the instructing party has public funding and the legal aid rates of payment which are applicable (paragraph 3.2(n) PD 25C) which reflects the fact that on 3 October 2011 the Community Legal Service (Funding) Order 2007 was amended to introduce a new Schedule 6 which contains a table of prescribed hourly rates for experts' fees ; b) have agreed in what proportion the SJE's fee is to be shared between them (at least in the first instance) and when it is to be paid (paragraph 2.6(c) PD 25C reflecting the pre-existing paragraph 5.6 (b) PD 25A) ; and c) if applicable, have obtained agreement for public funding (paragraph 2.6(d) PD 25C reflecting the pre-existing paragraph 5.6 (c) PD 25A). (c) the costs of joint expert evidence i. the principle of equal apportionment in joint expert cases 43. In relation to joint experts, FPR 25.12 (formerly FPR 25.8) provides: “(4) The court may give directions about— (a) the payment of the expert's fees and expenses; and (b) any inspection, examination or assessments which the expert wishes to carry out. (5) The court may, before an expert is instructed, limit the amount that can be paid by way of fees and expenses to the expert. (6) Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert's fees and expenses.” 44. In Calderdale MBC v S  EWHC 2529 (Fam) (Calderdale), the court considered the proper approach to ordering the costs of joint expert reports in public children proceedings i.e. care and supervision order cases. It decided that the costs of such reports should generally be apportioned between the parties. 45. In London Borough of Lambeth v S and others  EWHC (Fam) (Lambeth), the court referred to Calderdale in describing the 'normal practice' in children proceedings, namely: “to make no order as to costs absent exceptional circumstances. On a joint instruction, that would involve an equal apportionment of the overall cost between the parties, funded or otherwise. That is precisely what the Calderdale criteria provide for…” (paragraph ). 46. In Re DS, Sir Nicholas Wall P further endorsed the principle of equal apportionment: “I think I should take the opportunity to endorse the approach of Bodey J in Calderdale as to the split of the cost of a joint instruction” (paragraph ). 47. There are sound reasons, recognised in the decided cases, why there should be apportionment of costs in cases where there is joint expert evidence. Such evidence will: a) be something which each party has an interest in making available to the court (Calderdale, paragraph [37(c)]); b) be something from which each party has the potential to benefit (whether or not they ultimately do so) (ibid.); and c) inform the positions of the parties (Calderdale, paragraph ). 48. These points do not apply to evidence obtained, and paid for, on a single party's behalf. In Lambeth, the court approved (at paragraph [59(viii)]) the comment of Bodey J in Calderdale (at paragraph [37(e)]) in relation to the cost of a joint report prepared for care proceedings brought by a local authority that: “there is much force in the Local Authority's point that parents need to know that reports which may prove to have a “preponderant influence” (per Munby J at paragraph 113(ii) of Re L) are not being prepared at the sole expense of the Local Authority – in which event they may feel that the Local Authority calls the tune”. 49. The effect of FPR 25.12 (6) is clear: where the court has directed a SJE the parties are jointly and severally liable unless the court directs otherwise. Such a direction has to be reasoned. Where no direction is made the LSC would be entitled to recover from the parties who are not legally aided. 50. It should be noted that all three cases cited as examples of the rationale for joint apportionment are care cases where the key issue to be decided concerned the intervention of the state in the parental responsibility of parents. Had the key issue been part of the local authority's case i.e. evidence necessary for the satisfaction of the threshold or as a consequence of a statutory duty to assess, the modern practice would be for that question to be answered by evidence obtained from an expert paid for by the local authority. There may be other circumstances in which joint apportionment does not follow. The issue has not been argued before this court, but just as the the inability of a local authority social worker to provide evidence that is ordinarily within the skill and expertise of a social worker (for example, because of a shortfall of social workers in a local authority) may result in an expert being instructed at the expense of a local authority in a care case, so might a similar inability in Cafcass to provide a children's guardian who is able to provide an analysis which is ordinarily within the skill and expertise of a guardian. 51. The principle of equal apportionment in joint expert cases does not amount to an absolute rule that equal apportionment must be ordered in all circumstances. As Bodey J said in Calderdale at paragraph : “A blanket policy about the costs of joint reports cannot be stated and that ultimately is a matter for the discretion of the Court”. Given, however, the value which attaches to a joint expert report for the reasons recognised by the courts and set out above, it will be appropriate to depart from the principle of equal apportionment only in exceptional cases. ii. The effect of s 22(4) of the 1999 Act 52. Section 22(4) of the 1999 Act provides1: “Except as expressly provided by the Regulations, any rights conferred by or by virtue of this Part on an individual for whom services are funded by the Commission as part of the Community Legal Service or Criminal Defence Service in relation to any proceedings shall not affect – (a) the rights or liabilities of other parties to the proceedings, or (b) the principles on which the discretion of any court or tribunal is normally exercised”. 53. In common with both the LSC and the Law Society, the Secretary of State submitted that the plain meaning of s 22(4) is that the normal practice on an application (as to which see above) is to be followed. As the court put it in Lambeth, (at paragraph ): “The Commission say that the Court should not make a different order or exercise its discretion in a different way because an individual has the benefit of public funding and will not have to meet the costs himself or herself. I agree”. 54. It follows that in this case, it would be wrong in principle for the court to order the child to pay any more for the expert than he or she would otherwise have been ordered to pay in the (admittedly unlikely) situation that he or she were not legally aided. Conversely, it would be equally wrong for a non-legally aided party to be ordered to pay less than he or she would otherwise have been ordered to pay on the basis that he or she is not in receipt of legal aid. It does not follow, however, that a court may not lawfully make an order other than of equal apportionment in cases where only one or some of the parties are in receipt of legal aid and provided that the reasons are stated. The Secretary of State's position on the question of principle 55. The Law Society contends that an order for equal apportionment of the costs of a jointly instructed expert in this case is wrong and unlawful. The Society submits that: “any direction by the Court, that evidence should be given by a single joint expert where only a funded party can then afford to pay (or contribute towards) the expert's fees and expenses, is misconceived”; They contend that the proper approach is for the entirety of the cost of the expert evidence be met by the public purse so that the evidence is adduced by the child pursuant to the children's guardian's powers under Part 16 of the FPR. 56. There are at least two significant objections to the approach advocated by the Law Society. 57. First, it would mean, if accepted, that in some circumstances including the case settled for consideration by this court, a court is precluded from receiving the evidence of an SJE at all. Instead it could only receive expert evidence adduced by a single party. That would be wrong in principle. There is no warrant for such an approach in the FPR or PD 25A in the form they existed for these proceedings. Separate provision was deliberately made for the use of single joint experts in private children proceedings such as these. There is even less warrant for such an approach having regard to the new PD 25C which, as set out above, specifically directs that in children proceedings (including private law proceedings) expert evidence should be given by way of a SJE “wherever possible”. 58. It is clear (and accepted by the Law Society) that although they will not be applicable in every case, the evidence of SJEs has several recognised advantages over that adduced by a single party reflected in the reasons for joint apportionment. In particular, SJE evidence may on the facts of any particular case be more likely to be accepted by the parties as impartial. The Law Society's position would in essence require a change in the rules and practice directions of the court. 59. Second, accepting the Law Society's solution would mean that, in this case and many others, the entire cost of the expert evidence will be borne by the state, even though it is evidence in which the non-legally aided parties have an equal interest. That cannot be right in every case: payment for expert evidence by a single party (such as the children's guardian here) meets the same objection raised initially by Munby J, and subsequently endorsed by Bodey J (and most recently by the court in Lambeth), namely that parents need to know that reports that may prove to have a preponderant influence on proceedings are not being prepared at the sole expense of one party, in which event they may feel that that party 'calls the tune'. Whether such a perception is right or wrong is not the point; what matters is that the perception exists. Any regular practitioner in the family courts that deal with volume private children proceedings will readily recognise the spectre of the complaint that the judge is simply following the advice of the children's guardian and that guardians are biased in favour of whichever parent is not making the complaint. 60. If the Law Society solution were to be right, then having regard to FPR 25.12 (6) the court would have to direct in nearly every case where an SJE is appointed that the rule as to joint and several liability must not apply. It would likewise open the floodgates to inappropriate applications for children to be joined as parties so that a children's guardian could be appointed who has access to public funding that the parents do not have. 61. The principle of equal apportionment has been developed in cases where the underlying proceedings are public children proceedings, typically where a local authority has instituted proceedings to take a child into care. In proceedings such as the present which have been instituted by private parties seeking the court's determination of some matter on which expert evidence comes to be necessary, there is a similar justification which on the facts may be an even greater justification for the principle than arises in public children proceedings. By definition, the need for expert evidence in private children proceedings only arises because a private party has brought proceedings. It is used – and could only be being used - to determine whether a private party's application should succeed or fail and where the dispute between parents is of such a nature and extent that it cannot be mediated or conciliated. 62. Whether the principle applies and if so in what form in the circumstance that is not this case i.e. where a children's guardian needs professional assistance to perform his or her duties is a question that needs to be answered with the benefit of submissions from Cafcass and on facts where the question directly and clearly arises. 63. There is (as one would expect) nothing in the FPR to prevent the court from giving permission for joint expert evidence to be adduced in cases where one or more of the parties to the instruction is unable to pay for or contribute to its costs. Although it is clear that the court should start by considering whether the jointly instructing parties should be ordered to pay the costs on an equal apportionment basis, there is no absolute rule that this will be so: costs are ultimately in the discretion of the court. 64. For these reasons, I have concluded that the Law Society's approach should not be followed and on the question of principle, I agree with the Secretary of State as follows. i. the court must recognise the “necessity” of the evidence in the first place 65. The case identified by this court is premised on a court having formed the view that the expert evidence in question is 'necessary' in order to assist it to determine what the welfare of the child requires. This is important to recognise. As noted above, in its previous form, rule 25.1 of the FPR placed a duty on the court to restrict expert evidence to that which was “reasonably required to resolve the proceedings”. The funding problem with which the underlying proceedings in this case are concerned should never arise in cases in future where the expert evidence in question would be merely beneficial to resolve the issues, because the court would be acting in breach of the FPR by permitting it. 66. The court should identify the key issues that arise out of the ultimate question to be answered and examine carefully the evidence that will be necessary to resolve the key issues. Only if the evidence of the parties and their witnesses and the FCA or the children's guardian will fall short of that which is necessary will the question of expert evidence even arise. In private children proceedings, what is necessary can often be usefully tested by examining whether it goes to any of the factors set out in section 1 (3) of the 1989 Act: the 'welfare checklist'. A court should give reasons in coming to a conclusion that an expert is necessary, not least because of the delay that will be occasioned in coming to a decision. Those reasons should be recited in the preambles to any order made during case management. This has been good practice since at least the guidance that was issued by the President of the Family Division on 9 November 2004 entitled the 'Private Law Programme'. 67. Where an FCA feels unable to advise the court, that in itself may be sufficient for the court to consider the joinder of the child as a party and the representation of the child by a children's guardian (i.e. it is a case of significant difficulty). 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. For the avoidance of doubt, that requires a telephone call, not prolonged correspondence or repeatedly adjourned hearings. None of these steps requires an expert. In the event that the parties agree that an expert is necessary, that does not of itself mean that the court will concur. The court will rigorously scrutinise the request to identify the purpose and whether there has been compliance with the Rules. ii. the court should be satisfied that the parties have complied with their responsibilities before deciding whether to grant permission for SJE evidence 68. A court should be extremely slow to grant permission for an expert to be instructed in circumstances where the instructing parties have not complied with the significant duties placed upon them by the FPR and Practice Directions. Before a proposal for an expert to be instructed is placed before the court, the proposing party or parties must (among the other prescribed matters): a) obtain confirmation from the expert, inter alia, “of the cost, including hourly or other charging rates, and likely hours to be spent…” (paragraph 8.1(m) PD 26B, formerly paragraph 4.2(e) PD 25A); b) file and serve a written proposal to instruct the expert, containing among other matters detail as to: i) the likely cost of the report on an hourly or charging basis (paragraph 3.10(g) PD 26C, formerly paragraph 4.3(i) PD 25A); and ii) the proposed apportionment (at least in the first instance) of any jointly instructed expert's fees; when the fees are to be paid, and, if applicable, whether public funding has been approved (paragraph 3.10(h) PD 26C, formerly paragraph 4.3(j) PD 25A). 69. In addition, in line with the new PD 25C (formerly paragraph 5.6 PD 25A) the court should also be satisfied that the instructing parties have: a) informed the proposed expert whether any instructing party has public funding and the legal aid rates of payment which are applicable (paragraph 3.2(n) PD 25C); b) sought to agree in what proportion the SJE's fee is to be shared between them (at least in the first instance) and when it is to be paid (paragraph 2.6(c) PD 25C); and c) actually obtained agreement for public funding where applicable (paragraph 2.6(d) PD 25C). 70. The aim is to seek to minimise the risk of the sort of funding problem arising of which the present case is an example. Consistent with PD 25C, expert evidence in children proceedings should in the ordinary case be given by way of an SJE working within the LSC prescribed rates, the apportionment of whose overall fees are agreed, and the payment of whom by legally aided parties is secured, in advance of instruction. The LSC may need to publish agreed timescales within which funding decisions are to be made but that process has already been undertaken in respect of public children proceedings through the work of the Family Justice Board. 71. Self-evidently, if the apportionment of an SJE's fees cannot be agreed by the parties, the court will have to consider apportionment, and the seeking of any prior approval from the LSC (if necessary) may have to await or be conditional upon that consideration. iii. the court should order equal apportionment of the costs of a SJE save in exceptional cases 72. The court should order equal apportionment of the costs of a SJE save in exceptional cases. Since, as above, the parties should have tried to agree the apportionment of costs before presenting a proposal to the court, the court should ask the parties whether or not agreement has been reached, and if not, why not. Those cases in which a funding problem might arise should through this process be apparent to the court. 73. There will be some exceptional cases where apportionment other than equally between the parties may be appropriate for reasons other than the means of the parties (see e.g. paragraphs  and  of Calderdale). 74. There will be other exceptional cases where the court may wish to consider an order other than equal apportionment in light of the means of one or more of the parties. But in identifying these cases, the court will need to be especially wary of the fact that, in cases where one or more party is legally aided, the non-legally aided parties may seek to disclaim an ability to pay unless their means are adequately scrutinised. 75. Where the court has genuine reason to believe that a non-legally aided party may not be able to pay in full for the expert evidence on an equal apportionment basis, the court must undertake a robust scrutiny of that party's means. Courts should not accept that a person does not have sufficient means simply on the basis of an assertion to that effect by the party looking to avoid payment. 76. What is a robust scrutiny will depend on the circumstances of the case. An important consideration, however, should be the party's financial eligibility for legal aid where that still exists. If the party would not qualify for legal aid on the basis of their means, this is a factor which should point very strongly in favour of that party having to pay their full share of the cost of an expert's report. 77. In contrast, if the party would qualify for legal aid on the basis of their means, it may suggest that the party should pay less than a full share, although it does not follow that such a party should pay nothing. Persons who are financially eligible for legal aid are frequently required to pay a contribution towards the cost of their representation. Cases in which it is appropriate for a party to pay nothing at all towards the costs of expert evidence in which he or she has an interest should be exceptional. 78. It will only be in the exceptional cases where the court forms the view, on proper scrutiny of a party's means on the above basis, that one or more of the non-legally aided parties is unable fully to pay the costs the court would otherwise expect that party to pay that the court may consider whether it should fall to the other parties to pay more than an equal share so as to ensure that the evidence which is necessary may be adduced in the child's best interest. 79. The LSC does not accept this last part of the Secretary of State's submissions. The LSC submits that the effect of any proposal that the LSC should pay costs beyond a proportion that represents the proportion of legally aided parties is that the state pays for costs which are in law the obligation of a third party. In effect, the LSC is being required to grant payment from the legal aid budget to a party who is not in receipt of legal aid. 80. I accept the argument that entitlement to legal aid requires a person to satisfy the LSC that he or she satisfies any relevant eligibility criteria. If the LSC pays costs on behalf of a person who does not satisfy the criteria, that person in effect obtains the benefit of legal aid payments to which, under the system, he or she is not entitled. Furthermore, it is for the LSC to decide who satisfies the requirements for the grant of legal aid. The LSC has powers which enable it to call for information in order to decide whether a person meets an eligibility criterion. 81. The LSC submits that it would be wrong to replace a system under which it decides who should receive payments from the legal aid budget with one under which a court decides who should receive de facto benefit from that budget as a consequence of having that person's portion of the costs of a report. Under the legislation it is for the LSC, not the court, to apply the eligibility criteria. Consistency requires that the LSC should do so in each case. It is also submitted that the position in relation to the merits test for legal aid would be similarly difficult. The court would not have access to that person's legal advice and the LSC submit that it is difficult to see how, beyond perhaps concluding that the person's claim or application did not fall to be struck out, that that person's case had sufficient merit. 82. With respect to the LSC, this final submission misses the point. The court is not substituting its own system for that prescribed by legislation and entrusted to the LSC and its successors; it is protecting the rights of effective access to justice of the parties before it. I accept that the court would not be acting unlawfully if it was required by primary legislation to make an order that involved a contravention of any person's rights under Articles 6 or 8 of the European Convention on Human Rights and Fundamental Freedoms 1959 (the Convention) by reason of s 6(2)(1) of the Human Rights Act 1998 and in any event before this court no-one sought a declaration of incompatibility in relation to s 22 (4). 83. The court is prescribing its own process within the legislation so as to protect access to the court as a constitutional right (see, for example a recent examination of the common law right of access to justice in R (The Children's Rights Alliance for England) v Secretary of State for Justice & Ors  EWCA Civ 34 at  et seq. Access to justice has to be effective and the Secretary of State in his submissions has, in my judgment, acknowledged that and has proposed a process that has the effect of the state not impeding access to justice for those who need it. 84. It is self evident that private children proceedings engage Articles 6 and 8 ECHR. Proceedings concerned with the care of or access to children will be determinant of the parties' civil rights. Accordingly, by Article 6 the parties are entitled to a fair hearing. The relationship between a child and her parents is a part of the right to respect for family life protected under Article 8. A court order which affects the contact between a child and her parents will be an interference with those rights which has to be justified under Article 8(2). 85. That said, there is no general right to civil legal aid arising out of the operation of Convention rights. However, case law in relation to Article 6 establishes that, in order to guarantee a person's effective access to the court, legal aid may be required to be provided. It is generally accepted that this will be required: (see the summary given by the Commission in X v UK (1984) 6 EHRR 136, at ; and P, C and S v UK (2002) 35 EHRR 31, at  to ): “Only in exceptional circumstances, namely where the withholding of legal aid would make the assertion of a civil claim practically impossible, or where it would lead to an obvious unfairness of the proceedings” 86. The right to respect for family and private life imposes a positive procedural obligation on the court to ensure the requisite protection of the parties' interests (see, for example Principal Reporter v K  UKSC 56,  1 WLR 18 at  to . A failure by a court to consider evidence on an issue when it is necessary to do so may involve a breach of the obligation imposed by Article 8. To adapt the formulation of Munby LJ in Re C (Direct Contact: Suspension)  EWCA Civ 521,  2 FLR 912 at  to the new expert test, the question would be 'whether the judge had all the information, all the expert assistance, he necessarily requires before coming to a decision as important as one suspending contact'. It is to be noted that the importance of the decision is relevant: the severance of a familial relationship is a critical determination of civil rights whereas the quantum of contact or even the distinction between residence and contact (while it lasts) may not be. 87. Accordingly, in this last part of their submissions this court departs from the LSC's argument and accepts the submissions of the Secretary of State (and by implication the Law Society). At the point where a court has exhausted all of the ordinary mechanisms to obtain evidence that is necessary in order to make a decision that is in the best interests of a child, an access to justice argument may arise. The court like the LSC is a public authority. The LSC (or more accurately now the Legal Aid Agency through the Director of Legal Aid Casework) is required by section 10 of the 2012 Act to make civil legal services available to an individual where it is necessary to make the services available if (a) failure to do so would be a breach of that individual's Convention rights or any enforceable EU rights to the provision of legal services or (b) it is appropriate that they should be provided having regard to the risk that failure to do so would involve such a breach. The saving provision in the new legal aid scheme succinctly reflects a similar obligation upon the court but the exceptionality of the language should be noted. 88. I agree with the submission made on behalf of the Secretary of State that an order which is made in exceptional circumstances to ensure effective access to justice by a party would not contravene s 22(4) of the 1999 Act, because it would not be affected by the fact that one party is legally aided. It would simply be based on the fact that, in order for the expert evidence which the court has considered necessary to the proper resolution of the case to be adduced, the burden of cost must be unevenly shared. Were no party to be legally aided, the same approach would be legitimate. Cases falling within this exceptional description should be rare and for the exceptionality to apply there must have been a careful application of the Rules and Practice Directions i.e. the process described must be followed and evidenced by reasons which are recorded, preferably in recitals to the court's orders so that they are plain for everyone to see. iv. cases where prior approval is required 89. In cases where prior approval is necessary, the principles set out by the President in Re DS should be followed (see especially paragraph  of the Judgment). Prior authority should be regarded as the normal practice wherever a party's legal representatives or the expert are unwilling to take a risk as to an assessment of the experts fees and the LSC should have in place appropriate procedures for expedited decision making in children cases. The child's timetable should never have to wait for a funding decision. The Claimant's Challenge 90. In light of the above reasoning, the claimant's challenge to the legality of the LSC's decision could only succeed if the parties and the court had demonstrated the exceptionality of the decision to fund the instruction of the expert other than by an equal apportionment of the cost of the same. Even if the purpose of the instruction had been clear to this court (i.e. to what key issue did the evidence go), which regrettably it was not, and even if this court accepts that a rigorous scrutiny of the parents' means was undertaken, the real barrier to the claim is the fact that the decision to make the expert an SJE was a device to permit if not to engineer a funding decision in circumstances where the father said he could not pay but apparently needed the evidence. When that did not succeed, what followed was an ex post facto allocation exercise which might have been legitimate if it had occurred in the manner described above but which was is hardly a sound basis to to criticise the LSC for illegality. 91. The Order of 22nd April 2009 contravened s 22(4). The court's decision was affected by the fact that the child was in receipt of community legal service funding. The reason why the court ordered that the child pay for all the costs of the report was that she was in receipt of community legal service funding and so she, or more accurately the LSC, was deemed able to afford those costs whereas the other parties were deemed unable to do so. Therefore in order to ensure that the report was produced, the court ordered that the party supported by public funds should pay the costs in full. It follows that the order was affected by the fact that the child was in receipt of legal aid. The Order as amended on 8 December 2011 made it plain that it was made because the parents said they were unable to pay. The court therefore ordered that the party in receipt of public funding pay. The child's solicitors explained that this was the judge's reasoning process in their letter of 13 July 2011: “It will be noted that in fact the parents are acting in person. The District Judge took the view that they were not in a financial position to be able to contribute towards the fees of Dr. [D] and has therefore directed that these fees are to be met by the child's public funding certificate.” (emphasis added). 92. In summary: a) in the ordinary course, where an expert is jointly instructed, the parties should bear the costs of the report equally; b) the court may not make any different order from that which would ordinarily be made because a party is in receipt of legal aid; and c) where a court has made an order that a party in receipt of legal aid should bear a certain cost, the LSC has the power to refuse to provide funds for those costs, as long as its refusal is not irrational or otherwise unlawful in a public law sense. 93. On the facts of the case as presented to this court, the LSC's response to the materials presented to them was not unlawful and irrationality was not argued. 94. The Claimant also challenges the LSC's decision not to fund the expert's report in full on two other grounds for which permission is required: a) the LSC should have appealed the District Judge's order; and b) the child's solicitor had a legitimate expectation that the LSC would pay for the report in full. 95. I permitted these arguments to be developed in full. They can be summarised quite shortly but the context is that I have decided that permission should be refused for the reasons given below. 96. Dealing first with the argument that the LSC should have appealed the District Judge's order. The LSC was under no obligation to do so, not being a party to the proceedings. As the decision in Re DS makes plain, the LSC has the legal power to refuse to fund an instruction or only to fund it in part notwithstanding the terms of the court's order against the party in receipt of funding. The remedy for a decision of the LSC that is tainted by an error of law is judicial review. That reasoning, with which this court respectfully agrees, does not support the contention that before deciding not to fund an instruction in full, the LSC is obliged to appeal the order. Further, because the LSC is not a party to the proceedings, it is not automatically made aware of orders. In any event, it has been held that the LSC should intervene in children proceedings, including by appealing, only in exceptional circumstances: see Lambeth at paragraphs  to . Accordingly, the LSC was entitled to decline to reach a decision not to pay the costs without being required to appeal the order. 97. Turning to the second ground, the claimant relies on two arguments in support of the case that there was a legitimate expectation that the LSC would pay the costs: a) letters sent by the LSC increasing the limit on the legal aid certificate; and b) the LSC's alleged practice. The LSC submits that there is no basis for a claim that it has acted contrary to a legitimate expectation. The LSC say that nothing was done which could give rise to a legitimate expectation that it would pay the costs of the expert report in full. 98. There are two problems with a legitimate expectation claim based upon letters sent by the LSC. The first is that no representation was in fact made to the child or the child's parents and the second is timing i.e. no reliance can have been placed on letters which post date the court's order. Dealing with the first, the letters cannot be regarded as a representation to the party seeking to claim the benefit of a legitimate expectation. The party or parties seeking to invoke the legitimate expectation are the child or the parents whose contribution the LSC has not paid. Nothing in the letters sent to the solicitors amounts to a promise to the child, still less to the parents, that the LSC would fund the costs of the report in full. 99. As to the second, the essence of a legitimate expectation claim is that a public authority has made a representation and that a party has acted by reference to that representation. In the usual case, the party to whom the representation has been made will have relied on it (see for example, R v Secretary of State for Education ex parte Begbie  1 WLR 1115, 1124B-E). In this case, the letters on which the claimant relies as creating a legitimate expectation post-date the court's order. Those letters cannot therefore be relied on as a representation of the LSC's position at the time the order was made. The claimant cannot have relied on those letters. 100. In any event, the letters relied on are incapable of creating a legitimate expectation. The mere fact of an increase in the costs limitation cannot be relied on as a representation that particular costs will be paid. Indeed on 15 June 2011, the LSC specifically expressed concern about the costs of the expert. It was only subsequent to this, on 13 July 2011, that the child's solicitors provided the court's order. The LSC cannot be taken to have agreed to pay any sum in respect of costs about which it did not know the details. There is an additional reason why the letters dealing with the limit of funding could not create a legitimate expectation. There is a mechanism by which the LSC can give prior approval for costs. When prior approval is sought and granted, that does amount to a representation that the LSC will pay the costs which are the subject of the prior approval. In the light of the existence of that system, it would be wrong to rely on letters dealing with the total costs limit as amounting to a promise to make payment in respect of any individual element. 101. The second basis on which it is alleged that a legitimate expectation arose is what is said to be a practice followed by the LSC of paying for reports in full in the light of such orders without requiring that the solicitor seeks prior authority for the cost. The child's solicitors say that when a court makes an order that a particular disbursement is a reasonable and necessary disbursement, the LSC would make payment in respect of that disbursement without the need for prior authority. The legitimate expectation on which the claimant relies is a substantive legitimate expectation, i.e. that the LSC would make particular payments. 102. The Law Society has served evidence seeking to support the evidence of the child's solicitor in relation to the practice of the LSC. The Law Society fairly states that it does not have detailed statistics. However, it says that it has spoken to members of its Family Law Committee and that they have said that it was 'common practice' to make orders in the form used in this case and that the LSC's practice was 'typically' to pay the expert's expenses in full without requiring prior authorisation. 103. The LSC has made public statements in the form of guidance which are inconsistent with the practice alleged. Where an authority has issued guidance that is inconsistent with an alleged practice, a party cannot usually rely on a practice to establish a legitimate expectation. The LSC's guidance for private children's proceedings supports the view that prior authority should have been sought in this case. The guidance explains that, while prior authority is not compulsory, an application should be considered where there is a significant risk that the costs will not be allowed on a final assessment (paragraph 5.1.4). The guidance also stresses the importance of costs orders not being made because a party is in receipt of legal aid (paragraph 5.6.3). These provisions are inconsistent with a representation that the LSC would make payment in response to orders such as that in the present case. 104. The LSC has also issued guidance for public law Children Act cases. If and in so far as the common practice referred to in the evidence of the Law Society relates to this guidance, it is certainly possible to hypothesise why there is confusion. The LSC's guidance for public law children proceedings was designed to ensure that prior authority applications were minimised so as to reduce delay in those proceedings so that the guidance discourages the use of prior authority unless the expense is exceptional (defined as being in excess of £5,000). That guidance is of course concerned with a different type of case from that in the present matter and is not relevant to this case. But even if it were, by reason of the definition given to exceptionality, it contradicts the claimant's case. 105. I do not doubt the evidence provided to this court, that is not this court's function, but I am not satisfied that the evidence is sufficient to demonstrate an established practice in private children proceedings that could create a substantive legitimate expectation that the LSC would pay the costs in full without the need for the funded party to seek prior authority. In order to create a legitimate expectation based on a practice there must be evidence of an established practice which is consistently followed. The relevance of the practice is that it can be relied on as an 'unequivocal assurance' of how an authority will act (see R (Bhatt Murphy) v Independent Assessor  EWCA Civ 735, at ). There is no evidence of an established practice in this case capable of giving rise to an unequivocal assurance – the equivalent of a promise – that the LSC would pay costs in response to an order of the sort in this case such that it was not necessary for the funded party to seek prior authority for that cost. It is not clearly established that the LSC had committed itself to act in a particular way rather than being entitled to make decisions on a case by case basis. 106. There are additional arguments upon which the LSC could rely which this court need only touch upon given its conclusion on this aspect of the application. Even if the child had a legitimate expectation, it would not be unlawful to disappoint that expectation unless the decision maker's actions would be so unfair as to amount to an abuse of power and there cannot be a legitimate expectation that a decision maker will act contrary to statute. 107. For the reasons given I dismiss the claim and, where appropriate refuse permission. 108. As a footnote it is perhaps important to express sympathy with any family court that has to navigate these principles at the same time as dealing with litigants in person who may not have the knowledge and sometimes the capacity to understand's the court's process. There is an urgent and compelling need to simplify and bring together the principles set out in the various instruments that apply so that they are readily available and comprehensible. 1 On 1 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force and section 22(4) of the 1999 Act was replaced by s.30(1) of the 2012 Act. The wording remains the same, so far as is material for present purposes.
Possible Bailii link (not there when checked last night, but might have appeared since)