JG v The Lord Chancellor & Ors

This case concerns the funding of expert reports in private law children cases. It arises by way of an appeal from the order which Ryder J (as he then was) made on 9 April 2013 at the conclusion of judicial review proceedings. Ryder J’s judgment is reported at [2013] 2 FLR 1174.

The applicant for judicial review was a child who was the subject of proceedings under section 8 of the Children Act 1989 and had been joined as a party to those proceedings, with a children’s guardian. The focus of the judicial review was the refusal of the Legal Services Commission to fund the whole of the costs of an expert instructed to assist the family court in its determination of the welfare issues in the case. In the judicial review proceedings, Ryder J decided that issue against the child who has appealed to this court. He also considered what was described as “a question of general importance”, formulated by the Law Society who had intervened in the judicial review proceedings, concerning the approach that could be taken where the family court considered that expert evidence was necessary but the only means to pay for it was through the child’s public funding certificate.

In 2006, a father made an application for a residence and/or contact order under section 8 of the Children Act 1989 in respect of his young daughter who was living with her mother. Neither parent was in receipt of public funding for the litigation. Both acted in person. In time, the child was joined as a party and granted a public funding certificate. She was represented by a solicitor and a children’s guardian. According to §13 of Ryder J’s judgment, “shortly after [the child] 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 ongoing dispute upon her”. The child’s solicitors identified an expert, compiled draft instructions and served them on the parents.

The court was then invited by the guardian to permit the instruction of an expert psychotherapist to prepare a report on the family. It seems that the issue was addressed at a hearing before the district judge on 15 October 2008. We have not been shown a copy of the order made that day and information as to precisely what happened is lacking. This is how Ryder J described the situation (§17):

“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.”

On 22 April 2009, further directions about the psychotherapist’s assessment were given. They included the following:

“The parties shall jointly instruct [the psychotherapist] to prepare a report in respect of the child in particular and the family dynamics in general.”

Ancillary directions were given as to matters such as the filing of the report, disclosure of the papers to the psychotherapist, and permission for the psychotherapist to examine the child. The order also said:

“d)

The [guardian] shall take the lead in instructing the expert and shall apply for further directions if there are any difficulties in complying with this paragraph.

e)

The cost of the report to be funded by the child, the court considering it to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate.”

In April 2010, the psychotherapist produced a report and sent an invoice to the child’s solicitors in the sum of £12,000. The child’s solicitors submitted to the Legal Services Commission (the LSC) a claim in relation to costs and disbursements including the psychotherapist’s fees.

In May 2011, the psychotherapist gave evidence in the proceedings and an order was made that an addendum report be prepared dealing further with the father’s circumstances. It was in these terms:

“[The psychotherapist] will be jointly instructed to provide an addendum report concluding her parenting assessment of [the father] and conducting an assessment of his parents….The guardian shall take the lead in instructing the expert….The costs of the addendum report shall be borne by the child the court considering them to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate.”

The psychotherapist refused to do the work unless payment was made on her first invoice, which remained outstanding. A letter from the LSC dated 15 June 2011 (C6) suggests that its position was that the cost of the psychotherapist should be shared between the parties and that it was therefore unwilling to provide funds to discharge the whole of the invoice.

At a directions hearing in October 2011, an order was made which recorded that no progress had been made in the assessment of the father or his parents due to funding problems. It said:

“Because he will be handicapped in the presentation of his case without [the assessment], [the father] wants there to be a further attempt to unlock funding for it. He cannot afford such funding himself.”

The substantive hearing listed for November 2011 was vacated because there was no assessment and replaced by a further directions hearing at which it was contemplated that there would be a progress report on the issue.

The funding issue remaining unresolved in November 2011, the court made a further order which included this provision:

“Unless the LSC have finally determined the application of the guardian for payment of the outstanding fees of [the psychotherapist] or filed at court a letter setting a firm date for that determination the case worker shall attend the [next] hearing to explain the position to the court personally.”

The LSC responded in a letter to the court dated 7 December 2011. The essence of this was that it was considered that the order of 22 April 2009 was in breach of section 22(4) of the Access to Justice Act 1999 (“AJA 1999”) and therefore unlawful.

On 8 December 2011, having read the LSC’s letter, the district judge made a further order which said that the order of April 2009 was:

“amended to read: “The cost of the expert to be funded by the child the court considering them [sic] 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. In reaching this conclusion the court considered the provisions of section 22(4) of the Access to Justice Act 1999.”

The reference to the court having carried out a means assessment was a reference to the fact that the district judge had dealt with the ancillary relief proceedings between the parents and was therefore in a position to take a view as to their ability to contribute to the expert’s fees.

The LSC’s response to this order was no more positive than before.

On 20 January 2012, the district judge considered the case again and, as the order made that day records:

“expressed his concern about the delay in the proceedings and the adverse effect such delay may be having on [the child’s] welfare. He reviewed the position with a view to setting a date when the court might fully investigate the issues where [the child] should reside and her contact to the non resident parent and seek to reach a final decision on these issues in the light of that investigation.”

By 24 February 2012, as can be seen from the order of that date, moves were afoot to commence judicial review proceedings against the LSC. From the orders that followed thereafter in relation to the family proceedings, I should pick out the record in Judge Polden’s order of 25 April 2012 that the judge:

“shared the District Judge’s concern that at this stage because of the refusal of the LSC to deal with the issue of [the psychotherapist’s] outstanding fees and to fund work by [another expert] it would not be possible at the planned final hearing in June to properly judge what was in the best interests of [the child] and for [the parents] to have their respective cases properly tested. ”

It is also worthy of note that in May 2012, Judge Hammerton vacated the final hearing listed for the following month because it was not possible to hold it “in the absence of the expert evidence which has been directed to be adduced by the guardian on behalf of the child”, commenting that “the delay in finalising these proceedings is prejudicial to the welfare of the child”.

On 6 July 2012, Mrs Justice Theis was told that judicial review proceedings were being pursued against the LSC. She gave various directions including that the matter be listed before Mr Justice Ryder later that month. The intention of the order was clearly that he would be seised of the proposed judicial review proceedings and would consider the funding issues, including giving any guidance that he could in relation to the instruction of experts in proceedings of this type.

So it was that in due course there was a full hearing in front of Ryder J, at which the Law Society and the Lord Chancellor intervened, represented by counsel.

Ryder J recorded (§27) that by the time of the hearing before him the father had withdrawn his application for a residence order and an addendum report from the psychologist was no longer considered necessary. Precisely when this happened, I do not know, although the statement of facts and grounds which accompanied the judicial review claim form suggests that it was at a hearing before the family court on 9 July 2012 that the father made this known and the order for a further report from the psychotherapist was discharged (A16).

It is important to recognise that this development limited the scope of the issue between the child and the LSC. There was no longer any material issue between them about the addendum; it was the cost of the psychologist’s report dated 9 April 2010 that was the bone of contention. This was reflected in the terms of the LSC’s letter of 8 June 2012 which was isolated from the considerable correspondence between the LSC and the child’s solicitors as containing the pertinent decision for the purposes of the judicial review hearing (§25 of Ryder J’s judgment). The LSC’s letter of that date indicated that only one third of the cost of the psychotherapist’s report would be met, the reason given being that:

“the cost of the report appears to have been attributed to your client’s certificate in its entirety. As it is clear the report is of added benefit to all 3 parties, there is reluctance for the LSC to meet all such costs in line with section 22(4) of the Access to Justice Act…”

The child’s challenge to the LSC’s decision (“the specific question”) was put on three grounds, only two of which have been pursued in this appeal. The two grounds which remain live are that:

The parties were also permitted to air the “question of general importance” (hereafter “the general question”) which was:

“….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”

The terminology used in the general question reflected the changes which were to be made in January 2013 in Part 25 of the Family Procedure Rules 2010 (FPR 2010) and the associated Practice Direction. I will set out the relevant provisions later in this judgment.

The child’s challenge to the LSC’s decision failed.

First, as appears from §§90 to 93 of the judgment, Ryder J did not consider that the LSC had acted unlawfully because he agreed with the LSC that the April 2009 order contravened section 22(4) AJA 1999 because the court’s decision was affected by the fact that the child was in receipt of community legal service funding. He held that the reason why the court ordered the child to pay the full cost of the report was that she was funded and deemed able to pay whereas the other parties were deemed unable to do so.

Secondly, Ryder J rejected the argument based upon legitimate expectation. This had been founded upon two features namely (i) letters sent by the LSC and (ii) the LSC’s alleged practice. Mr Turner QC, who appeared with Mr Chippeck for the appellant child, abandoned reliance upon the letters in front of us and I need say no more about them. As for the alleged practice of the LSC, Ryder J was not satisfied that the evidence before him was sufficient to demonstrate an established practice in private children proceedings that could create a legitimate expectation that the LSC would pay the costs in full without the need for the funded party to seek prior authority. He held that it was 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 (see §105 of the judgment).

Ryder J favoured the answer that the Lord Chancellor put forward in response to the general question. This proceeded on the basis that normally a single joint expert should be used and the expert’s costs should be apportioned equally between the parties. Only “in the exceptional cases where the court forms the view, on proper scrutiny of a party’s means …., 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” may the court consider whether other parties should “pay more than an equal share so as to ensure that the evidence which is necessary may be adduced in the child’s best interests” (§78). Ryder J held (parting company in this respect with the Lord Chancellor who would not have described the foundation for the court’s action in precisely this way) that in making an unequal order, the court would be “protecting the rights of effective access to justice of the parties before it” (§82). In the following paragraphs, he referred to both Article 6 and Article 8 of the ECHR and concluded at §88 as follows:

“…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…”

After the hearing before Ryder J, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) came into force. It abolished the LSC from 1 April 2013. The administration of legal aid is now the job of the Legal Aid Agency, which is an executive agency of the Ministry of Justice, and the functions relevant to this appeal now fall to the Lord Chancellor. Therefore, it was no longer necessary for the LSC and the Lord Chancellor to be separately represented on the appeal as they were before Ryder J; accordingly only the Lord Chancellor appeared, through Mr Paul Nicholls QC and Mr Tom Cross. The Law Society continued to take an active part in the proceedings, represented by Mr Howell QC.

A further consequence of LASPO 2012 was that section 22(4) AJA 1999 was replaced by section 30 of LASPO 2012 but as this is to materially the same effect, it will be convenient to omit further reference to it, although I will set out section 10 of LASPO 2012 below.

It may be helpful at this stage to set out the framework of the law and the rules that are applicable in cases of this type. I will then return to the provisions in shorthand as I deal with the arguments later.

It is, of course, well known that when a court determines any question with respect to the upbringing of a child, “the child’s welfare shall be the court’s paramount consideration” (section 1(1) of the Children Act 1989, hereafter CA 1989). It is of central importance to this appeal to keep this well in mind. When the court is determining the substance of a private law dispute over a child, it is obviously determining a question with respect to the child’s upbringing so the principle applies. This marks the proceedings out from other types of proceedings, for instance a civil action for damages. In a civil action for damages, there is a claimant and a defendant, just as there is an applicant and a respondent in a private law dispute over a child. But, even if the child is not joined as a party to the family proceedings, he or she is a powerful presence in them because his or her welfare dictates the outcome, which may turn out to be different from that contended for by the parents. In order to determine what will serve the child’s welfare, the court needs information so that it can identify and evaluate the options. Some of the information comes from the parents themselves but the court may need information from a more independent or expert source. A welfare report commissioned under section 7 of CA 1989 is one way to acquire this information (see below) but such a report is not always sufficient.

Given the nature of the duty imported by section 1(1) of CA 1989, it strikes a family lawyer as extraordinary to see an assertion, such as appears in an email from the LSC to the child’s solicitor, to this effect:

“This case is clearly [the father’s] application for residence and as such, he should pay for the reports, otherwise, the status quo of the mother having residence should continue” (C26)

Such an approach is readily understandable in the context of, say, a civil action for damages; the claimant has to prove his case and unless he pays for and produces such expert report as is necessary, he will fail to do so. However, the reality in children proceedings, where the court is without a necessary expert report, is not that a residence order is simply granted to the mother by default. The court still has to consider the merits and determine what is in the child’s best interests but it will have to do so without the benefit of the expert help that it considered was necessary to assist it in its task.

Section 1(2) of CA 1989 imports another consideration of importance providing that in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.

Section 1(3) of CA 1989 sets out factors to which the court must have regard in particular when considering whether to make or vary or discharge an order under section 8 of CA 1989 (residence, contact and other private law orders in respect of children). The section 1(3) list is often referred to as the “welfare checklist”.

Section 7 of CA 1989 provides that a court considering any question with respect to a child under CA 1989 may ask an officer of CAFCASS (or in Wales, a Welsh family proceedings officer) or a local authority to report to the court on such matters relating to the welfare of the child as are required to be dealt with in the report. Where a child is joined as a party to the proceedings and has a children’s guardian (see below), this normally makes an order under section 7 superfluous as the guardian fulfils the function of advising the court.

The parties to private law proceedings about a child (for example proceedings about the child’s residence or contact with a parent) are normally the child’s parents. Since Part 1 of LASPO 2012 became effective on 1 April 2013, legal aid is available to them only in very limited circumstances and they will often appear in person. The child is not usually a party at all.

The court may make a child a party to the proceedings if it considers that it is in the best interests of the child to do so (Rule 16.2 FPR 2010). The legal aid structure still makes provision for the child to receive legal aid if made a party (section 9 and paragraph 15 of Schedule 1 LASPO 2012).

The default position is that the court must appoint a children’s guardian for a child who is made a party under Rule 16.2 (Rule 16.4). There are circumstances in which a child with sufficient understanding may conduct proceedings without a children’s guardian; they are set out in Rule 16.6 and are not applicable in this case.

Rule 16.27 provides that a guardian appointed under Rule 16.4 has the powers and duties set out in Practice Direction 16A (PD16A) and must exercise them in accordance with that Practice Direction. If the children’s guardian is an officer of CAFCASS (as is usual), he or she has additional duties set out in Rule 16.20 which imposes the duty to safeguard the interests of the child, to provide the court with “such other assistance as it may require” and to have regard to what is set out in section 1(2) and section 1(3)(a) to (f) CA 1989.

This is not the place for a detailed examination of all these provisions but I will pick out some of the features of PD16A that are of importance to the present case.

Paragraph 7.1 of PD16A begins:

“Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases.”

The idea that joining the child is an unusual step is developed in the remainder of paragraph 7.1 and appears also from the list, in paragraph 7.2, of the sorts of circumstances which may justify such an order. By way of example, one such circumstance is where there is an “intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the dispute” (paragraph 7.2(c)).

Paragraph 7.6 provides that it is the guardian’s duty “fairly and competently to conduct proceedings on behalf of the child” and stipulates that “all steps and decisions the children’s guardian takes in the proceedings must be taken for the benefit of the child”. A CAFCASS guardian is covered by Part 3 of PD16A as well. Paragraph 6.1 in Part 3 provides:

“The children’s guardian must make such investigations as are necessary to carry out the children’s guardian’s duties and must, in particular –

(a)

contact or seek to interview such persons as the children’s guardian thinks appropriate or as the court directs;

(b)

obtain such professional assistance as is available which the children’s guardian thinks appropriate or which the court directs be obtained.”

Part 25 of FPR 2010 deals with experts in both public and private law proceedings. The FPR 2010 came into force on 6 April 2011. A new Part 25 was substituted for the original Part 25 from 31 January 2013 by SI 2012/3061. The general question in this case was formulated with that new Part 25 in mind. I do not think that anything turns on the precise formulation of the original Part 25 although Ryder J does give a little more detail about it should it be thought to be material. For the most part, what follows is taken from the new version although I will mention specifically one respect in which the two versions differ. To complicate matters further, the principal directions about the instruction of the psychologist in this case were given before 6 April 2011 and therefore at a time when the Family Proceedings Rules 1991 (FPR 1991) were in force (as to which see below).

Under Rule 25.4(1) FPR 2010, no party may put expert evidence before the court in any proceedings without the court’s permission. In children proceedings, an expert may not be instructed and a child may not be medically or psychiatrically examined or otherwise assessed for the purposes of the provision of expert evidence in the proceedings without the court’s permission (Rule 25.4(2)).

Colours are nailed firmly to the mast from the outset of Part 25 signalling that expert evidence is not to be a routine feature of proceedings. Rule 25.1 is headed “Duty to restrict expert evidence” and provides:

“Expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings.”

Until the end of January 2013, Rule 25.1 read:

“Expert evidence will be restricted to that which is reasonably required to resolve the proceedings.” [my italics picking out the difference from the present rule]

In Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250 the President said that the new test was intended to be significantly more stringent than the old. Following this up in more detail in Re H-L (a child)[2013] EWCA Civ 655, this Court (with the President as a member) considered the meaning of “necessary” in the rule (§3), and gave the short answer that “necessary” meant “necessary”, and the longer answer that it had a “meaning lying somewhere between ‘indispensable’ on the one hand and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand”, having “the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable”. Nothing that I say in this judgment is intended to embroider or amend that authoritative statement; I would only observe that the hurdle that has to be overcome before the court permits expert evidence is therefore a high one.

This is underlined by the detailed list in Rule 25.5 of matters to which the court must have regard when deciding whether to give permission for an expert to be instructed in children proceedings, including the impact that giving permission would be likely to have on the child’s welfare, whether evidence could be given by another person on the matters on which the expert would give evidence, the likely impact on the timetable, duration and conduct of the proceedings of giving permission, and the cost of the expert evidence.

Experts have a duty to help the court on matters within their expertise which overrides any obligation to the person from whom the expert received instructions or by whom they are paid (Rule 25.3).

The court has power to direct that evidence is to be given by a single joint expert. A “single joint expert” is “an expert instructed to prepare a report for the court on behalf of two or more of the parties (including the applicant) to the proceedings” (Rule 25.2(1)). The power is contained in Rule 25.11(1); it is important to take into account the precise parameters of it. The rule reads:

“(1)

Where two or more parties wish to put expert evidence before the court on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.”

Rule 25.12 relates to the instruction of a single joint expert. It requires that, where the court gives a direction under Rule 25.11(1) for a single joint expert to be used, the instructions are to be contained in a jointly agreed letter unless the court directs otherwise. There is provision for the court to settle the instructions in default of agreement between the parties, and powers to give directions about the expert’s fees and expenses. Rule 25.12(6) provides:

“Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses.”

The reference to “relevant parties” leads back to Rule 25.11(2) where it can be seen that “relevant parties” are “the parties who wish to put expert evidence before the court” which is going to be given by a single joint expert. Rule 25.12(4) provides that the court may give directions about, amongst other things, “the payment of the expert’s fees and expenses”. It may also, before the expert is instructed, limit the amount that can be paid to him by way of fees and expenses (Rule 25.12(5)).

The intention is clear from the rule that an expert should not “belong” solely to those who instruct him. Rule 25.10(1) permits a party to put written questions about an expert’s report (for the purpose of clarification of it) to an expert instructed by another party or a single joint expert appointed under Rule 25.11. The expert’s answers are treated as part of his report (Rule 25.10(3)). There may be adverse consequences for the instructing party if the expert does not answer (Rule 25.10(4)). Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at any relevant hearing (Rule 25.15).

Practice Direction 25C deals further with single joint experts (who are there referred to as “SJE”). Paragraph 2.1 says that “[w]herever possible, expert evidence should be obtained from an SJE instructed by both or all the parties”. Guidance is given as to what should be done where such an instruction is contemplated. This includes making preparations ahead of the hearing at which permission will be sought to instruct the expert, including agreeing with the other parties “in what proportion the SJE’s fee will be shared between them (at least in the first instance) and when it is to be paid” and, where applicable, agreement for public funding should have been obtained (paragraph 2.6). When approaching the proposed expert by way of preliminary enquiry, amongst the information provided to the expert must be whether the instructing party has public funding and the legal aid rates which are applicable (paragraph 3.2(n)). When it comes to the application for the court’s permission, this must state “the proposed apportionment (at least in the first instance) of any jointly instructed expert’s fee; when it is to be paid; and, if applicable, whether public funding has been approved” (paragraph 3.10(h)). The letter of instruction shall, “subject to any public funding requirement for prior authority, define the contractual basis upon which the expert is retained and in particular the funding mechanism” including matters such as how much and when the expert will be paid (paragraph 4.1(h)).

As I have said, when the district judge first considered the issue of the expert report in October 2008 and when the April 2009 order was made, the procedural regime was contained in the FPR 1991.

For the most part, I do not need to dwell on the former regime as nothing turns on the differences between it and the regime in the FPR 2010. As with the FPR 2010, so under the FPR 1991, joining the child as a party to private law proceedings was a step confined to cases involving an issue of significant difficulty and occurred only in a minority of cases (see President’s Direction 5 April 2004). A guardian would be appointed under Rule 9.5. A CAFCASS guardian had duties similar to those of a guardian appointed under the FPR 2010, see Rule 4.11 and 4.11A FPR 2010.

A little more detail is required in relation to the circumstances in which expert evidence was permitted under the old regime. There could be no medical or psychiatric examination or other assessment of the child for the purpose of the preparation of expert evidence for use in the proceedings without leave of the court (Rule 4.18 FPR 1991). Because of the confidentiality of the proceedings, disclosure of documents and information to the expert was also restricted and, in practice, as the Practice Direction of 1 April 2008 entitled Experts in Family Proceedings Relating to Children said, the court’s permission was required before an expert could be instructed at all. The Practice Direction referred to the strict control that the court placed on the number, nature and identity of experts in children proceedings. Although the guidance set out in the Practice Direction was applicable to cases issued from April 2008 (and would not have covered this case), I have no doubt that it nevertheless reflected the practice that would have been adopted in October 2008 and April 2009. One can see in it many of the features of the scheme that made its way, in due course, into the FPR 2010, including the expert’s overriding duty to the court, consideration of whether the expert evidence can properly be obtained by a joint instruction, requirement for the proposed apportionment of the joint expert’s fee to be addressed in advance, provision for written questions to be put to the expert by any party for the purpose of clarifying the report etc..

As to when the courts would have been prepared to give leave to instruct an expert, the notes to Rule 4.18 in both the 2008 and 2009 Family Court Practice include this summary:

“Principles governing grant of leave– Whether leave will be granted will depend upon the circumstances of the case. Although it may be that the court will take the view that CA 1989, s1(1) does not strictly apply to the decision (Re A and W (Minors)(Residence Order: Leave to Apply) [1992] 2 FLR 154, CA) the court will pay great attention to the welfare of the child in any event. It will also consider the interests of the parties, and the need for a fair hearing at which the issues can be properly determined (Re D (Adoption Reports: Confidentiality) [1995] 2 FLR 687, HL) and the delay principle (H v Cambridgeshire County Council [1996] 2 FLR 566, FD). In considering whether to grant leave, the court should seek to identify the issue which forms the basis of the local authority’s application, and consider whether it would be usefully addressed by the proposed evidence; leave to obtain expert evidence can be refused on the ground that the evidence does not bear sufficiently on the issue that falls for determination (H v Cambridgeshire County Council (above)). ……”

Section 22(4) AJA 1999 is central to this appeal (and is hereafter referred to simply as section 22(4)). It provides:

“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.”

Section 10 LASPO 2012 provides for “civil legal services” (legal help of various kinds, see section 8 LASPO 2012) to be available to individuals in exceptional cases. It reads:

“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 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.

(4)

[inquests]”

Nobody can be in any doubt that the general question encapsulated a real issue of very considerable importance in private law proceedings relating to children in the wake of the severe restriction on public funding for those involved in such proceedings. For a recent enunciation of the problem posed by this, see the Report of the Private Law Working Group to the President of the Family Division of 8 November 2013. Nevertheless, I confess to a considerable unease that the judicial review proceedings were used to determine an abstract question of this sort, divorced from the facts and issues that arose between the parties. For very good reasons, that is not normally an appropriate use of litigation. In this particular case, it introduced a complexity which cannot have assisted in the determination of the specific question that required resolution for the parties. One obvious aspect of the added complexity was that the FPR 2010 were not even in force at the time which is relevant to the issue between the parties, let alone in the form which they assumed from the end of January 2013 and which was used to formulate the general question.

No one argued that we should not consider the general question and, it having been the subject of a full judgment from Ryder J, it was perhaps inevitable that we would do so. It also has to be said that it was not until I had covered that ground that I became clear that the answer to the specific question was tied to the facts of this case and that little of the material generated in response to the general question shed light on what it should be.

Because I am conscious of the widespread concern that underlies the general question and of the importance that has no doubt been attached to Ryder J’s decision, I have incorporated in this judgment my thoughts on it, though what I say is not part of the ratio of my decision any more than what Ryder J said on the question can have been part of the ratio of his decision. Ultimately, I do not know of how much assistance this will prove to be because I have concluded that there is no universally applicable answer and that everything will depend on the facts of the case under consideration.

The appellant’s and the Law Society’s case on the general question

The appellant adopted the Law Society’s submissions on the general question. The Law Society submitted that where expert evidence was necessary in the circumstances set out in the question, the court should direct the child, through her guardian, to obtain the evidence and give the child permission to adduce it, although in instructing the expert, the guardian should normally seek to agree with the other parties, if possible, which expert is to be instructed and the instructions to be given to him. The court’s direction should be subject to any prior authorisation or increase in costs limitation that may be required for the purpose. The Law Society submitted that those responsible for administering legal aid could not refuse to give such approval as refusal would be incompatible with articles 6 and 8 of the ECHR and would deprive the court of the assistance it needs to enable it to determine what the welfare of the child requires, thus being “incompatible with the object and purpose of the legislation for the protection of children involved in private law family proceedings”. There is no point, submitted the Law Society, in funding the representation necessary to protect a child’s interests in the private law proceedings yet denying the funding required to enable the evidence to be provided that is necessary to establish what the child’s welfare requires.

It was submitted that a requirement, such as that favoured by Ryder J (see §§75 et seq of the judgment), for a “robust scrutiny of … means” with reference to a party’s financial eligibility for legal aid prior to the instruction of the expert would present the courts with a task for which, unlike the Legal Aid Agency, they are not equipped and which would import harmful delay whilst investigations were carried out. The Law Society’s proposal was therefore said to be a better alternative because the expert could be instructed without delay on the basis that the cost of the report could be met as a disbursement on the child’s certificate, leaving the parties’ respective liability for the fees to be dealt with by means of a costs order, if appropriate.

The Lord Chancellor’s case

The Lord Chancellor accepted that “if there were a case in which a report was genuinely sought by the publicly funded party alone, for reasons affecting that party, and the other parties did not agree with or seek to make use of the report, then the court might direct that the cost[s] were borne by that party alone and it would be legitimate for the legally aided party to bear the full costs of that report” (§61 of the Lord Chancellor’s skeleton argument). In those circumstances, he said, the legally aided party would have to formulate the instructions without the involvement of the other parties. That set of circumstances was not what he was addressing in his main submissions.

In cases where expert evidence was necessary but the report was not genuinely sought by the publicly funded party alone, the Lord Chancellor submitted that the judge’s solution, which had of course largely been put forward by him, was correct. Only in “very exceptional cases” could the court depart from the norm of a single joint expert whose fees would be apportioned equally between the parties, it was submitted. Two conditions had to be satisfied:

Points in common and points of difference

It can be seen that all parties agreed that there may be situations in which an order can be made which does not apportion the cost of an expert equally between the parties in a case. It was common ground that where this was a departure from the apportionment that would normally have been ordered, the justification for this would be that otherwise there would be a breach of a party’s Convention rights. It was also common ground that in these circumstances, section 22(4) would not present an obstacle to the order being made. The absolutist position which I think was adopted by the LSC in front of Ryder J, namely that there were no circumstances in which the LSC could be ordered to pay experts’ fees “beyond a proportion that represents the proportion of legally aided parties” (see §79 of Ryder J’s judgment), was not advanced before us.

Underlying matters of detail were not agreed. There was debate as to whether it was necessary to impose a requirement of exceptionality, as to when and how a party’s inability to pay should be established and, an allied question, as to whether the proper way in which to regulate the parties’ share of the fees was by regulating their contractual liability to the expert or by means of conventional costs orders. Another major difference between the parties was that the Lord Chancellor was wedded to the idea of a single joint expert (and utilised that as a significant part of the foundation for his arguments) whereas the other parties contemplated that the expert could be instructed by the child/guardian alone, albeit with input from the other parties to the instructions.

As I have said, a significant feature of the Lord Chancellor’s submissions to us and, it would appear, a significant influence in Ryder J’s conclusions was the need for the court to receive evidence from a single joint expert (see, for example, §§57 and 58 of the judgment). The recognised advantages of a single joint expert were said to include that the evidence of such a witness may be more likely to be accepted by the parties as impartial. If this is correct, it can be no more than a question of the parties’ perception because the expert is, in fact, subject to an overriding duty to the court that takes precedence over any obligation to any person from whom the expert has received instructions or by whom the expert is paid (paragraph 3.1 PD 25B).

I have no difficulty in accepting that there are often powerful advantages in confining expert evidence to that given by a single joint expert. Paragraph 2.1 of PD 25C says that a single joint expert should be used wherever possible. However, whether a party can be ordered to participate in the instruction of a single joint expert is a different question and one which must be answered by reference to the FPR 2010 themselves.

The court’s power to direct the use of a single joint expert derives from Rule 25.11(1) and arises “[w]here two or more parties wish to put expert evidence before the court on a particular issue”. In those circumstances, the court may direct that the evidence is to come from a single joint expert. The argument advanced by the appellant and the Law Society in this case is that in circumstances such as the present, where the parents do not have the wherewithal to commission expert evidence, the power under Rule 25.11(1) does not arise because they cannot be said to “wish to put expert evidence before the court”.

Rule 25.11(1) quite closely follows Rule 35.7(1) of the Civil Procedure Rules 1998. Both principally contemplate, it seems to me, parties who not only have an abstract desire to put in the expert evidence but also the means to obtain it although I do not think I would go so far as to say that it is not possible for a party to be taken to “wish to put expert evidence before the court” on an issue unless he has the means so to do. What in my view the power in Rule 25.11(1) does not extend to is forcing a party who was not seeking to instruct an expert himself to join in the instruction of an expert that another party has invited the court to approve.

I can see that cases might arise where it may not be easy to determine which side of the dividing line in Rule 25.11(1) the facts fall and whether or not it should properly be said that “two or more parties wish to put expert evidence before the court”, but that is something that would have to be resolved on a case by case basis. It may be useful to look at the facts of the present case as an example of how the problem should be approached. In so doing, as I am dealing with the general question, I propose to work on the assumption that they arose under the present procedural regime.

It appears that neither parent had raised the possibility of an expert prior to the involvement of the guardian although the litigation had been on foot for a significant period of time. The idea seems to have come from the guardian and the child’s solicitors identified the proposed expert and prepared draft instructions which were served on the parents with the expert’s CV. The guardian could not initiate such an instruction on a whim. Any steps and decisions taken by the guardian in the proceedings must be taken for the benefit of the child (paragraph 7.6 PD16A); amongst his or her obligations is a duty to obtain appropriate professional assistance (see paragraph 6.1 PD16A); but no expert can be instructed without the court’s permission (Rule 25.4) and the court will not give permission unless the “necessary” test is passed (Rule 25.1). I will of course return to the facts of this case later on but for the moment I will proceed on the basis that the instruction was authorised by the order that the district judge made on 15 October 2008 (then, of course, operating under the FPR 1991).

On these facts, I would have thought the correct starting point would be that the expert’s report was genuinely sought by the child alone, with the result that the case would fall within the category of case in which the Lord Chancellor accepted that it was legitimate for the legally aided party to bear the full costs. True, the court would not have had an application for permission before it had it not been for the joinder of the child and the consequent availability of public funding, but that is not the same as saying that the principles on which the court’s discretion is normally exercised have been affected by the existence of the funding in contravention of section 22(4).

Does the involvement of the other parties in the instruction of the expert make a material difference? In particular, can it turn the expert from the child’s expert into a single joint expert?

The answer to this will be fact sensitive. One can imagine a situation in which one party proposes an expert and the other party or parties respond with proposals to instruct their own expert(s). This may well put matters firmly into the territory of Rule 25.11. At the other extreme, the mere service of the expert’s CV on the parents (as happened here) could not do so, given that PD25C requires an application for permission to state the discipline, qualification and expertise of the expert, by way of a CV if possible (para 3.10 PD25C). Neither could the service of draft instructions drawn up by the child’s solicitor (as also happened here) have that effect, given that PD25C paragraph 4.1 requires “the party responsible for instructing the expert [to] prepare (in agreement with the other parties where appropriate) a letter of instruction to the expert”.

What is the position if the court requires the guardian to involve the other parties in the choice and instruction of the expert, or the guardian himself seeks to do so as the Law Society and the appellant propose he should normally do? The submission of the Lord Chancellor is that what matters is the substance of the transaction and it is a contrivance, in these circumstances, to treat the expert as an individual expert instructed by the child when the expert is in fact a single joint expert. I cannot accept that that is necessarily so. The expert would only be a single joint expert for the purposes of the rules if the process made him “a person who provides expert evidence for use in proceedings on behalf of two or more of the parties” (Rule 25.2(1) FPR 2010, my italics). The rules explicitly acknowledge that parties may communicate with and, I would emphasise, even take the benefit of, an expert instructed by another party without that expert becoming a single joint expert. Take Rule 25.10(1)(a) from which it is clear that the mere fact of putting questions to an expert instructed by another party is not sufficient to convert the expert into a single joint expert. Similarly, making use of another party’s expert’s report as evidence at a hearing does not convert the expert into a single joint expert either, see Rule 25.15.

Furthermore, there are very good practical reasons to be cautious about when an expert should be treated as a single joint expert. When an application is made for permission to instruct an expert, the other parties are normally to be fully informed in advance about it (see, for example, PD25C paragraph 3.9 and 3.10) and when determining whether the expert evidence proposed is necessary, whether the expert has the appropriate expertise, and what questions the expert is to be required to answer in his report, the court is often greatly assisted by input from them. It would be counter-productive if they were deterred from contributing to the process for fear that participation may turn another party’s expert into a single joint expert. Expedition, fairness and cost saving all require that the expert is provided with as complete instructions as possible at the outset, so that his or her initial report can be balanced and comprehensive. It would be in no one’s interests for the system to operate in such a way as to encourage, or even oblige, a party to ambush the expert with relevant information at a late stage or, for example, to wait until cross-examination to point out that he does not in fact have the expertise required to give an opinion.

Doing the best I can to forecast the sort of situations that may arise, it seems to me that it may not be all that infrequent that an application by a child/guardian for permission to instruct an expert will genuinely be for an expert on behalf of the child, as opposed to a single joint expert, notwithstanding that the other parties have some input into the process of approval by the court and into the format of the expert’s instruction. Section 22(4) will then present no obstacle to the cost of the expert being met by the child’s public funding.

If the expert is not in fact the child’s expert but is a single joint expert, and the other parties are unable to contribute to the cost of the expert, it is necessary to consider in what circumstances public funds can be required to meet the whole cost. Once again, I will confine myself in this discussion to the current provisions of the 2010 Rules.

First, I want to look at what the position is where there is no problem over resources. This is material because it is necessary to know, for the purposes of section 22(4) AJA 1999, which is the mainstay of the Lord Chancellor’s argument, what are “the principles on which the discretion of [the] court… is normally exercised”. It will be recalled that the thrust of the Lord Chancellor’s case was that there is a normal rule that costs are to be apportioned equally between the parties and any departure from this which increases the burden on a publicly funded party must be confined to “very exceptional cases” where his two conditions were satisfied. For the reasons which I set out below, 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.

The approach to be taken when deciding how the cost of a jointly instructed expert should be shared amongst those instructing him was considered in Calderdale MBC v S and the LSC [2005] 1 FLR 751. The proceedings were care proceedings. All the parties were funded through the LSC except the local authority. The parties jointly instructed an expert. The LSC persuaded the family proceedings court that 50% of the costs should be paid by the local authority and 50% by the three publicly funded parties. On appeal, Bodey J substituted an order apportioning the costs equally between the four parties, so that each paid 25%. At §35 of his judgment, he set out considerations relevant to the exercise of the court’s discretion with regard to the costs of such jointly commissioned reports. He made clear that all the circumstances of the case were relevant, including the adequacy of the work done by the local authority itself, whether the report is directed at the threshold or is designed to assist in welfare decisions, and the need for each party to have confidence in the integrity of the forensic process.

Bodey J’s approach was endorsed by Sir Nicholas Wall P in A Local Authority v DS [2012] EWHC 1442 (§7). Sir Nicholas’ decision is interesting also for his underlining that “[o]ne of the golden rules….is that the instruction of an expert should not, unless it is unavoidable, hold up the progress of a case” (§46), and that “in cases involving children, speed is of the essence” (§53).

In London Borough of Lambeth v S [2005] 2 FLR 1171, Ryder J referred to what he described as the “non-exhaustive considerations” set out in the Calderdale case. The LSC were arguing that the local authority should pay the whole of the costs of a residential assessment directed under section 38(6) Children Act 1989. Ryder J did not accept that. He said (§57):

“The plain meaning of s22(4) would suggest the normal practice in children proceedings is to be followed. That would be 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, just as they provide for the circumstance where the local authority should take a greater or full share of the costs because of the circumstances of the case.”

He determined that the costs should be apportioned between the local authority and two of the publicly funded parties, having set out 9 reasons for this (§59). The local authority had, in fact, offered to pay 50% of the costs and Ryder J accepted that a pragmatic and just solution would be for them to do so and for the balance to be split between the funding certificates of the two other parties (§60).

What I draw from the three authorities to which I have just made reference is that the court has a 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. Notwithstanding Ryder J’s reference to “the normal practice” in children proceedings of there being no order as to costs except in exceptional circumstances, I do not think that the intention was to elevate the approach into a presumption or normal rule that the costs of experts should be apportioned equally between the parties. Indeed, I would not even go so far as Ryder J in the instant case when he spoke of “[t]he principle of equal apportionment in joint expert cases” (§51). The careful examination by Bodey J and Ryder J of the various factors in play in the Calderdale case and the Lambeth case shows the importance of tailoring the order to the facts and Ryder J was right, in my view, to emphasise (also in §51) what Bodey J said at §54 of the Calderdale case, namely that “a blanket policy about the costs of joint reports cannot be stated and that ultimately is a matter for the discretion of the Court”.

Since the Calderdale case, we have acquired Rule 25.12(6) FPR 2010 which, mirroring Rule 35.8(5) CPR 1998, provides:

“Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses.”

This provision received quite a lot of attention in argument in front of us. It is perhaps rather an odd provision to find in procedural rules, appearing to concern itself with the contractual relationship between the parties and the expert. It needs to be read with Rule 25.12(4)(a) which provides that the court may give directions about the expert’s fees and expenses. It is quite clear from that, and from its own terms, that Rule 25.12(6) is not intended to be prescriptive and merely establishes a default position as to liability to the expert in the event that the court does not direct otherwise. I do not see it as setting up a “normal rule” that the cost is to be apportioned equally, any more than the Calderdale case did.

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 section 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 cost of the expert. In such circumstances, section 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.

I will now go on to consider the more difficult question of when the court may depart from the order that it would otherwise have made, to the greater cost of a publicly funded party or parties.

In the light of what I have said in the preceding section, I would reformulate the Lord Chancellor’s submission so that, rather than focussing upon whether the court can depart from equal apportionment of the expert’s fees, it focusses upon whether the court can depart from the order that it would have made but for the resources problem (to which I will refer in shorthand as “the normal order”). The Lord Chancellor sought to impose what, for the purposes of the discussion that follows, I will treat as three conditions for such a departure from the normal order although I accept that he may well not have intended the third one to be a condition as such. The three “conditions” are that it must be established that the other party could not pay his share of the cost; the normal order would involve a breach of a party’s Convention rights; and the case must be a “very exceptional” one.

Breach of Convention rights

For the moment, I will take impecuniosity as read and turn to consider when there might be a breach of Convention rights.

The case law of the European Court of Human Rights in relation to legal aid has quite recently been summarised in Muscat v Malta (2012) Application no. 24197/10. There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings. However the Court recalled that the Convention was “intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”, that the institution of proceedings did not, of itself, satisfy all the requirements of Article 6(1), and that the right of access to court included also the right to obtain a “determination” of the dispute by a court (§45). It continued (§46):

“Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable to effective access to the court, either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case (see Airey v Ireland, 9 October 1979 §26, Series A no. 32). In discharging its obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6”

I would have expected that the parties would have joined battle over Article 6 in this case, arguing perhaps that the genuine and effective enjoyment by a child of his or her right of access to the court was not secured unless he or she was not only granted legal representation but also enabled to secure and present the evidence that was “necessary to assist the court to resolve the proceedings”. They chose, however, to focus on Article 8 instead. Mr Howell explained this as being because Article 8 imposed positive obligations on the court itself to obtain the necessary evidence whereas Article 6 would tend instead to impose obligations on other emanations of the state (here the Lord Chancellor) and, furthermore, in his submission Article 8 catered better for the rather more interventionist aspect of children proceedings which contrasts with the truly adversarial proceedings with which Article 6 is normally concerned.

Given the status of all that I have to say on the general question, I do not intend to dwell on Article 6 of my own motion but I am not convinced that it has materially less to contribute to the resolution of the issues in this case than Article 8 and I certainly do not think it could be said to be irrelevant given that the specific challenge in this case was to the decision of the LSC to refuse funding. Accordingly, I would not wish to be thought to be ruling out reliance on Article 6 should points arise in future which are similar to those which have arisen here.

Elsholz v Germany (2002) 34 E.H.R.R. 58 is instructive in relation to both Article 6 and Article 8, and demonstrates that a failure to provide assistance in the shape of an expert’s report can lead to (and/or contribute to) breaches of those Articles. The Article 6 and Article 8 rights under consideration were those of a father. The German courts had dismissed his request for access to his young son. The father claimed that that had violated his right to family life and that he had not had a fair hearing. He argued that before making a decision, the courts should have appointed an expert, as requested by him and recommended by the Youth Office, to assist them in interpreting the child’s negative statements about him. The domestic courts relied on the boy’s statements that he did not want to see his father, took into account the strained relations between the parents, considering that it did not matter who was responsible for the tensions, and found that any further contact would negatively affect the child. The ECtHR did not doubt that these features were relevant but said that:

“it must be determined whether, having regard to the particular circumstances of the case and notably the importance of the decisions to be taken, the applicant has been involved in the decision-making process, seen as a whole, to a degree sufficient to provide him with the requisite protection of his interests.” (§52)

In the view of the Court, an independent expert psychological report should have been obtained by the District Court. Moreover, when the father challenged the decision in the Regional Court:

“…taking into account the importance of the subject-matter, namely, the relations between a father and his child, the Regional Court should not have been satisfied by relying on the file and the written appeal submissions without having at its disposal psychological expert evidence in order to evaluate the child’s statements.” (§52)

As to Article 8, the Court said that:

“The combination of the refusal to order an independent psychological report and the absence of a hearing before the Regional Court reveals, in the Court’s opinion, an insufficient involvement of the applicant in the decision-making process. The Court thus concludes that the national authorities overstepped their margin of appreciation, thereby violating the applicant’s rights under Article 8 of the Convention.” (§53)

The Court also found a breach of Article 6(1), explaining that:

“….because of the lack of psychological expert evidence and the circumstances that the Regional Court did not conduct a further hearing although, in the Court’s view, the applicant’s appeal raised questions of fact and law which could not adequately be resolved on the basis of the written material at the disposal of the Regional Court, the proceedings, taken as a whole, did not satisfy the requirements of a fair and public hearing within the meaning of Article 6(1).” (§65)

I wondered during the course of the hearing whether, in the light of the Elsholz case, where the family court has concluded that a report is “necessary” within the meaning of Rule 25.1 of FPR 2010, and where no other party can fund the report, a failure of the State to fund the report through the child’s public funding would inevitably involve a violation of Article 8. I concluded that it was not possible to go that far because the circumstances of individual cases differ so considerably and one cannot reliably foresee all the variants. It seems to me that the question has to be addressed, therefore, on a case by case basis having regard to the specific circumstances of each case, as the ECtHR stated in, for example, Sommerfeld v Germany (2004) 38 EHRR 35 §§68 and 71.

During argument, I asked counsel for the Lord Chancellor in what type of circumstances a failure to fund the whole of a report would in his submission be a breach of Article 8. He understandably referred me to the facts of Elsholz. In his submission, there was a breach in that case because what was in issue was whether there should be any contact at all whereas if the issue were to be the frequency of contact that may not be so. He implied that it would also be harder to establish an Article 8 breach where the issue for the court was residence. In so far as Mr Nicholls intended that to be a general submission encompassing all residence disputes, I reject it. To take a plain example to illustrate why, a decision that a child should move from Parent B to live with Parent A whose home is on the other side of the world could have consequences for both the child and Parent B approaching the seriousness of a complete denial of contact. But even in a more routine residence dispute, the court’s order may have profound implications for the family life of the parent and child, for example by bringing to an end what has been the day to day involvement each has had in all the little details of the other’s life and substituting limited scheduled visits, perhaps not even including overnight stays and perhaps separated by long intervals of time. Here again, therefore, everything will depend on the individual facts and it seems likely that the relevant circumstances will include not only the nature of the application before the court but also the nature of the report.

Mr Nicholls submitted, relying on P, C and S v United Kingdom (2002) 35 EHRR 31, §88 and 90, that in examining the Convention question, consideration can be given to the finite resources of the state in respect of the legal aid budget. I suspect that that merely takes us back to the proposition that it is only in exceptional circumstances where there is going to be a breach of a Convention right, that the state can be required to fund more than its normal share of the cost of an expert.

Mr Nicholls’ submissions focussed particularly on the parents and when their Article 8 rights might be violated. It seemed to me that they did not sufficiently accommodate the special dynamic of children proceedings in which, by virtue of the welfare principle (see §32 above), the court is searching for what is in the best interests of the child, irrespective of the parents’ cases. A concrete example of this was his argument that the report was particularly for the benefit of the father because he was making a proposal that his parents would assist him with care of the child and needed the report to give that substance. We have little of the detail of the family dispute between the parents here but the court must have had at least two options for the child, namely to confirm residence to the mother or to grant the father, assisted by his parents, a residence order; there were no doubt also various options in relation to contact. If the way forward had been pretty clear, the guardian would not have sought leave to instruct an expert and the court would not have approved that course so we can presume that there were real choices to be made. Indeed, under today’s procedural rules, the court could only approve the instruction if the evidence was necessary to assist it to resolve the proceedings. To focus on the parents, the cases they wished to put before the court and their Article 8 rights, is to forget about the child whose Article 8 (and probably Article 6) rights are also in play. In Elsholz terms, there is a possibility that if a report is not obtained to enable the court to make the right decision for the child, the child will have an “insufficient involvement ….in the decision-making process” (§53) and, by virtue of the lack of the necessary evidence, the hearing may not satisfy Article 6 and/or the court will not be able to come to a decision that properly respects the child’s Article 8 rights.

The Lord Chancellor’s argument seems to me to risk prejudicing the child in order to prevent a parent who is not otherwise entitled to legal aid deriving a benefit from a report which has been paid for by public funding. I have already emphasised that FPR 2010 acknowledge that a party may benefit from a report produced by another party’s expert without that expert becoming a joint expert. Anyone who has ever conducted or watched a successful cross-examination of an expert knows this perfectly well. The fact that a party who is not publicly funded will or may benefit from the expert’s input is likely to be a material factor in the court’s discretion as to the cost of the expert but it is not a reason to conclude, as I think is the conclusion to which the Lord Chancellor’s submissions would logically lead, that even though the child’s Convention rights would be violated by the inability to obtain the expert advice that the court had concluded was necessary to assist it, the expert could not be paid for on the child’s public funding certificate because that would benefit one or both of the parents as well.

It is as well to remember that cases in which the child is joined as a party are far from commonplace, as can be seen from the various provisions which I outlined earlier in this judgment starting at §39. They will be cases in which there are particular challenges in determining what is in the best interests of the child or in actually achieving the right solution in practice. The role of the child’s guardian is directed very firmly at achieving a resolution that is in the best interests of the child. His or her duties are defined and circumscribed as I have described earlier. His or her decisions must be made for the benefit of the child and he or she must make such investigations as are necessary to carry out his or her duties including obtaining such professional assistance as he or she thinks appropriate. By the time the guardian has endorsed the instruction of an expert as appropriate and the court itself has approved it as necessary, there will be the beginnings of a strong foundation for an argument that the child’s Article 8/Article 6 rights will be violated if the court cannot be provided with that expert assistance. Whether the argument will ultimately succeed will depend, of course, upon the precise nature of the decision to be taken in relation to the child.

A very exceptional case

It is understandable that the Lord Chancellor should seek to confine the cases in which the cost of the expert would be apportioned unequally to avoid a breach of Convention rights by stressing that this could apply only in “very exceptional cases”. This approach ties in with the language of section 10 of LASPO 2012. However, whatever the immediate impact on the reader of the reference in section 10 to an “exceptional case determination”, the definition in section 10(3) makes it clear that “exceptionality” is not in fact an extra requirement and that what lies beneath the label is simply that if the services are not made available to an individual, there would (or sometimes might) be a breach of his Convention rights. I see no more justification for introducing a specific exceptionality requirement in the context we are considering here than the draftsman appears to have seen in relation to section 10 and it seems to me that it would distract attention from the central question. Granted, we are concerned with a departure from the way in which the court would otherwise have catered for the costs of the expert, so to that extent the order would be exceptional. That is a description, however, not a test or an additional hurdle.

Impecuniosity

It was common ground that the court would not be considering departing from the normal order unless the parties who would normally have to share the cost of the expert were unable to do so. There was debate, however, as to when and how impecuniosity would be determined.

Ryder J held, accepting the Lord Chancellor’s submissions, that “a robust scrutiny” was required of the party’s means, and said that what was a robust scrutiny would depend on the circumstances of the case but “an important consideration …. should be the party’s eligibility for legal aid where that still exists” (§76). He considered that if the party would not qualify for legal aid on the basis of their means, that was a factor that should point very strongly in favour of that party having to pay their full share of the cost of an expert’s report whereas, in contrast, if the party would qualify for legal aid, it may suggest that they should pay less than a full share, although paying nothing at all should be exceptional, bearing in mind that legally aided parties often have to pay a contribution (§77).

A particular concern of the Law Society was that the assessment of impecuniosity should not delay the proceedings. They were right to be concerned about that. Section 1(2) CA 1989 (see above) requires the court to have regard to the general principle that any delay in determining a question with respect to the upbringing of a child is likely to prejudice the child’s welfare. Furthermore, delay in resolving matters is capable, itself, of giving rise to breaches of Convention rights. What has happened in this case amply demonstrates that wrangles over the extent to which an expert’s costs should be met from public funds can introduce huge delay. The proceedings relating to this child were commenced in 2006, the guardian first sought a report in 2008 and the question of the payment of the expert remained unresolved in 2012 when we can see that the debate was impeding a final hearing of the case. It is quite possible that there were other problems as well as the expert’s fees but this is quite an indictment of the system. It leads me to the view that whatever system is operated must be one which is practical and not over technical and which avoids delay wherever possible.

The Law Society’s proposal that the child should be directed to obtain the expert evidence in the first instance with the ultimate liability for the expert’s fees being distributed between the parties by means of a costs order later in the proceedings therefore has considerable appeal.

The Lord Chancellor challenged it on a number of bases. Some of the arguments raised against the proposal amalgamated the issues of a breach of Convention rights and impecuniosity whereas I have dealt with these separately. Some covered the ground which I have examined when considering whether or not an expert is properly the child’s sole expert. I only reach the question of impecuniosity on the basis that the Lord Chancellor’s condition that the normal order would involve a breach of a party’s Convention rights is satisfied and, as I have explained, in my view there is no third condition of “exceptionality”

I sensed that an understandable concern of the Lord Chancellor was that joining the child as a party and using the child’s public funding to pay for an expert would become a widely used device – a back door to public funding for parents who would not otherwise have it - and I think he saw the Law Society’s proposed scheme as a way in which to have all the benefits of a single joint expert without the non-legally aided parties having to bear the cost. He did not, however, go so far as to suggest that only those who would in fact satisfy the financial criteria for legal aid should be treated as impecunious for the present purposes but submitted that eligibility might be a useful starting point and yardstick.

Ryder J also saw financial eligibility for legal aid as a relevant factor and I do not disagree. In my view, the Lord Chancellor was right not to argue that satisfying the financial eligibility criteria is a necessary qualification, not least because it may well place the family courts in considerable difficulty if they had to carry out the sort of detailed and technical assessment that the LSC would use to determine financial eligibility. The challenges facing the courts in private law cases in the new post-legal aid regime are evident and they are also working hard to process care cases with expedition. It is difficult to envisage them having the resources to assess a party’s eligibility for legal aid as the LSC would do, without seriously holding up the individual case or prejudicing the rest of their work or both. But in so far as financial eligibility can be ascertained, it must be relevant. If the party in question would not qualify for legal aid, that may count heavily against an argument that they could not pay their full share of the cost of the report whereas, conversely, if they would qualify, then that may suggest that they cannot pay a full share. As Ryder J rightly pointed out, it is not all or nothing. It may be that a party could not pay a full share but could pay something towards the expert’s costs, just as they could be required to pay a contribution towards their legal aid.

It is difficult to forecast what financial information will be available to the court and at what stage in the proceedings. There may be cases in which a party has already been assessed for financial eligibility for legal aid and no doubt it would be appropriate to have regard to the outcome of such an assessment in those cases. In some cases, as in the present case, financial information is available because there are or have been ancillary relief proceedings. In other cases, directions will have to be given to secure the necessary information from the parties.

The stage at which the court can reach a final determination as to whether a departure from the normal order is required for Convention reasons is likely therefore to vary, depending on the facts. There may be cases in which the decision can be taken before the expert is even instructed, with the parties’ shares of the cost being settled from the outset. There may be others in which that would or may import harmful delay into the proceedings and in which there is no option but to adopt the Law Society’s solution of requiring the guardian to instruct the expert in the first instance, but with the intent of revisiting the question of cost, on proper financial information, later by means of a conventional costs order. The court would, not, of course, embark on that route without some cogent evidence that the other parties would not be able to pay their way in the instruction.

Ryder J proceeded upon the basis that the normal order was an equal apportionment of the costs of the expert and that 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” otherwise (§90). The core of his decision against the claimant/appellant was that:

“[90] ….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 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 hardly a sound basis to criticise the LSC for illegality.

[91] The order of 22 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….”

In so far as Ryder J was lamenting the lack of information about these particular family proceedings, I share his views. I have gone back over such documentation as we have in order to attempt to piece together what occurred but the position is far from clear. Application forms and orders are missing and we do not have access to the statements that were generated in the family proceedings, from which it might have been possible to see what precise issues there were between the parties when the guardian decided that an expert assessment should be commissioned. What is more, events took place over 5 years ago when the procedural rules applicable were not the same as they are now and neither was the climate in which the parties and the judges were operating. Practice in relation to the drawing of orders and the instruction of experts has been refined over the years and I surmise that the child’s solicitors and the district judge might be much more exact now in their approach to the drafting of orders.

Having done the best I can, I have reached a conclusion which differs from that reached by Ryder J. It may be imperfect but so are all the possible solutions to this case.

The starting point for me is October 2008 when the child was joined as a party to the private law proceedings and a guardian was appointed for her. I propose to give a little more detail about events at this time than I included in my earlier summary of the facts.

The guardian first instructed solicitors on 6 October 2008 (D40 of the appeal bundle). It appears that there was some suggestion that contact was having quite an unsettling effect on the child and that there were cultural issues. It seems that the guardian very quickly made the suggestion of a psychological assessment and that her solicitor, on her instructions, drew up a list of issues to be considered by the expert. The case had by now been going on since March 2006 but as far as I know, this was the first mention of the possibility of an expert being instructed. The draft instructions and the psychotherapist’s CV were sent to the parents by the guardian’s solicitors on 13 October 2008 in advance of a directions appointment before the district judge on 15 October 2008.

From this brief history, it is tolerably clear that the idea of an expert was the guardian’s and that what was before the district judge at the directions appointment was her proposal that the expert should be instructed. All that we know about what occurred before the district judge was (D41) that he “considered the proposal for the Assessment and the directions for the Expert [and] agreed that in the circumstances such an assessment would be beneficial”. Ryder J took this as intended to amount to the required permission to adduce expert evidence and I would not disagree with him. In the circumstances, had matters stopped there, I can see no possible objection to the cost of that expert evidence being attributable to the child because it was the child who was going to put that evidence before the court.

I have not been able to discover what precisely happened about the expert thereafter. It seems that the guardian went on long term sick leave in mid-January 2009 and no replacement guardian was appointed, leaving the solicitors to act for the child without one. It was only in April 2009 that a decision was taken by CAFCASS to reallocate the case to another guardian. The new guardian did not attend the 22 April 2009 hearing before the district judge but the child’s solicitor did. Her attendance note for the hearing is available. This was the hearing at which the district judge made the order that the parties jointly instruct the psychotherapist with the guardian taking the lead and the cost being funded by the child (see above). Mr Pearson of the child’s solicitors said in his statement of 17 September 2012 (D42) that his “understanding was that the issues raised in the earlier draft set of instructions had been considered and approved by [the district judge] at the hearing on 15^th October 2008”. The attendance note is 4 pages long and very detailed. It reveals that the solicitor who attended on the district judge fulfilled a varied role. It included following up issues with the parents over their statements, appearing before the district judge, and going with the parents to Halfords (at the request of the district judge) to explore issues about the suitability of the car seat that the father was using at contact. The note shows some of the issues that were particularly troubling the parties at the time. Then on the final page there is this:

“The District Judge was prepared to direct that [the psychotherapist] undertake an assessment in this particular matter to see if we could move things on and the necessary directions were made. The District Judge prepared a typed Order, a copy of which appears in the file.”

That is all there is on the subject of the psychotherapist’s instruction. There is nothing to suggest that either of the parents contributed anything on the subject, and certainly nothing to lead one to believe that they were seeking to have an expert involved.

Who knows why the instruction of the expert had not been pursued following the district judge’s order of 15 October 2008 but one can suppose that the absence of a guardian may have been a factor. In any event, it seems to me that, notwithstanding that the district judge decided to order a joint instruction, the proper interpretation of what happened on 22 April 2009 was in fact that he was completing the process instigated by the guardian in October 2008 and authorised by him then and that the report was, in substance, ordered at her request in order to address issues that needed to be addressed in the interests of the child. As I have said earlier, the fact that other parties may have an input into the report does not convert it into their report or necessarily render them liable for the costs of it. What matters, in my view, is the substance of the transaction.

I see it as vital to try to go back to the time of the instruction of the expert and to strip off the overlay of all the orders that followed. It needs to be kept firmly in mind that the live dispute between the child and the LSC is only about the cost of the report which had been produced by April 2010. Particular emphasis has been put on the order of October 2011 which said that the father wanted there to be further attempts to unlock funding because he would be handicapped in his presentation of his case without a further assessment but it is not to the point. It is dealing with the father’s objectives in October 2011 and tells us nothing about who was the driving force behind obtaining the original report, why it was thought to be required and whose purposes it would serve.

Accordingly, as I see the April 2009 order for the instruction of the expert as in fact made at the instigation of the guardian on the child’s behalf, I do not share Ryder J’s view that the order made in April 2009 fell foul of section 22(4). One can see how, later in the process, the LSC came to see the instruction as a joint enterprise of all the parties and why they (and the judge) took the view that the direction that the cost of the report be met by the child was a device to overcome the parents’ inability to contribute to the expert’s fees. The letter from the child’s solicitors on 13 July 2011 can hardly have helped, for example, stating as it did that “the District Judge took the view that [the parents] were not in a financial position to be able to contribute towards the fees of [the psychotherapist] and has therefore directed that these are to be met by the children’s funding certificate”. On close examination, however, this does not in fact tell us that the district judge’s order was a device as the LSC and Ryder J concluded. The essential question was who was seeking the instruction of the expert and the information in the solicitors’ letter did not actually address that.

I would therefore allow the appeal against Ryder J’s dismissal of the child’s judicial review claim and substitute a declaration that the LSC’s decision not to meet the cost of the expert’s report was unlawful.

Having reached my decision on these very fact specific grounds, it is not necessary for me to look at the wider issue of legitimate expectation and I do not propose to do so.

I would simply add that when judges are called upon to deal with the sort of difficult issues that have arisen here, it would be prudent for them to explain their reasons for each decision that they take in a short judgment and for their orders to be precisely spelled out. It goes almost without saying that solicitors should be careful to avoid disputes of the type that has arisen here by seeking prior authority for any instruction of an expert.

I agree

I also agree.