DS & Ors (Children)

This case reaches my court because the parties have asked me to give what guidance I feel able to give on the question of prior authority addressed to the Legal Services Commission (the LSC) in relation to expert evidence. I heard the application (which had been transferred up to me from the Family Proceedings Court (the FPC) via the Principal Registry of the Family Division (the PRFD) on 9 May. On that date, I

Nothing in what follows should be taken as any indication that I have formed a view either on the merits of the case generally, or on the merits of instructing the Independent Social Worker (the ISW) who is the subject of the application for prior authority. These, it seems to me, are matters for the district judge who will hear the case and adjudicate on its merits.

Furthermore, as the purpose of this judgment is to provide guidance to the profession and to the LSC, I propose to write it anonymously. Save as is contained within the judgment itself, therefore, nothing must be published which will identify any of the individuals in the case.

The ultimate issue in the case is whether or not a final care order should be made in favour of a local authority in relation to a young male child who is currently 16 months old, and whom I will call D. D is at present subject to an interim care order (ICO) in favour of the local authority initially made by a Family Proceedings Court (the FPC) on 2 December 2011, and subsequently renewed. This followed the institution of proceeding on 29 November 2011. D is currently living in a mother and baby foster placement in accordance with the local authority’s interim care plan. As will be apparent, the FPC acted promptly, and I have a copy of the justices’ reasons for making an ICO in my papers.

In accordance with the Public Law Outline (the PLO), the local authority, undertook a number of pre-proceedings activities. In particular, it obtained a report by a consultant adult psychiatrist dated 8 November 2011, a detailed report from a registered clinical psychologist dated 12 November 2011 and what is described as an “Interim” report from an ISW (not the ISW whose report is the subject of prior authority) dated 18 November 2011. These were, in broad terms, hostile to the mother and it was essentially these documents which led the local authority to institute care proceedings. For the reasons I have already given, I do not propose to outline the nature of the proceedings, the contents of these reports or the allegations made by the local authority, save to say that they are currently contested.

Suffice it, therefore, to say that on 22 December 2011, following the institution of proceedings on 28 November 2011 and the making of the ICO, there was a case management conference conducted by the justices’ legal adviser. It was the order made by consent on this occasion which brings the matter before this court. Paragraph 1 of the order reads as follows: -

“There shall be permission to the parties to jointly instruct the ISW, who was named, to undertake a parenting assessment (emphasis mine) of the parents…..

(d)

The costs of the parenting assessment shall be shared by the local authority, the mother and the father (i.e. one third each) the court deeming this to be a reasonable and necessary disbursement on the certificates of the publicly funded parties…..”

A number of directions were given as to the letter of instruction, the filing and service of the report, and permission for the ISW to see D for the purpose of the assessment. Nothing turns on these save that I think I should take the opportunity to endorse the approach of Bodey J in Calderdale MBC v S and the LSC [2005] 1 FLR 751 as to the split of the cost of a joint instruction.

Other directions were given which are not material to this application, save that the mother was given permission to instruct an adult psychiatrist to undertake an assessment of her, the cost to be borne by the mother’s public funding certificate “the court deeming this to be a reasonable and necessary disbursement”. By paragraph 15 of the order the matter was listed for an Issues Resolution Hearing on 11 May 2012. This was subsequently vacated and re-fixed for 21 June.

Unfortunately, apart from using the words “reasonable and necessary”, in relation to the adult psychiatrist, the legal advisor appears to have given no reasons for the decision to grant the mother permission to instruct an ISW.

A named guardian was appointed on 17 January 2012. On 2 or 5 April 2012 (the date is not entirely clear and does not matter) the justices transferred the proceedings to the PRFD. According to the draft order in my papers, they did so for the following reasons: -

The district judge at the PRFD in front of whom the matter came, referred it to one of the Family Division Liaison Judges for London, who in turn suggested that it should come before me. The district judge made an order that a senior representative of the LSC should attend the hearing before me, such attendance only to be excused by myself.

As the point seemed to me an important one, I offered, through my clerk. to allow the LSC to be represented at the hearing. I was, accordingly, considerably surprised on 9 May that not only was the LSC not represented, but that no representative of the LSC was present. Instead, I received a letter from the LSC offering to deal with the matter by a telephone call with myself. This was manifestly unsatisfactory, and I copied the letter to myself for the parties to read. Eventually, and following a telephone call from the guardian’s counsel, a representative of the LSC appeared (the author of the letter to me) and informed me that the LSC received so many requests to attend court and explain themselves that, in effect, a policy decision had been taken not to attend court when asked. After some prompting from myself, the representative apologised for his non-attendance.

I have the curriculum vitae (the CV) of the ISW whom the mother wishes to instruct in my papers. This shows that 2006 she has been a/the (it is not clear which) director of a company in Milton Keynes, described as a Centre for Children and their Families. She has a diploma in Social Work from a provincial university. She is registered with the General Social Care Council. After working in various capacities for a local authority (not the local authority which had instituted these proceedings), she ended up from 2000-2002 as “Social Work Manager, providing outreach services to families including Parenting Assessments including those parents with learning disabilities supervised contact and preparing evidence for Court”. She is a Children’s guardian for CAFCASS and the National Youth Advocacy Service (NYAS) and a fully trained expert in using the Parenting Assessment Manual (PAMS). Her professional memberships comprise the British Association of Social Workers (BASW), NAGALRO and the chamber of commerce.

I agree with the representative of the LSC who addressed me, that the ISW concerned is a social worker, and would seem suited to provide a social work assessment.

The local authority wrote a letter of instruction to her on 20 January 2012. It was an agreed letter (apart from, that is, from the agreement of the father, which was awaited). It set out the relevant dates; it sent the ISW the documents (including an indexed and paginated bundle of the court documents filed to date); it set out the local authority’s case and posed a total of some 18 questions “agreed with the parties”. It is, on the whole, a perfectly good letter of instruction and warns the ISW against making findings of fact on disputed issues. However. it strikes me that the number of the questions posed is excessive, and some would appear to be out of the ambit of the ISW’s expertise. It is apparent that the court had little or no input into the letter and whilst it is not usually the court’s function to draft the letter of instruction, it is of the essence of good case management that the court should identify the issues on which it wants the expert to report.

I have been provided with a bundle of the correspondence between the mother’s solicitors and the LSC and a chronology provided by the LSC. These documents do not make happy reading. Given the nature of this judgment, it is, I think, necessary for me to go through them as neutrally as possible. It does not seem it is for me to attribute blame for the unhappy state of affairs in which the case finds itself. It remains the fact, however, that proceedings which were commenced in November 2011 remain unresolved – indeed have not even reached an IRH by May 2012. If cases are, in due course, to be completed in the time-scale envisaged by the Family Justice Review (FJR) and accepted by the Government, it is apparent that delays of the kind experienced by this case are unacceptable.

As I have already stated, the proceedings were commenced by the local authority on 29 November 2011. The mother and the father were issued with legal aid certificates on 29 and 30 November respectively.

Assessments were ordered by the Court on 22 December 2011. The application for prior authority was first made by the mother’s solicitors on 3 January 2012 (over a month from the institution of proceedings) and received by the LSC two days later. Under the section “reasons for request”, the mother’s solicitor has written, in capital letters “prior authority for ISW to undertake parenting assessment”. There is also reference to a psychiatric assessment which the LSC has authorised.

Under the heading “Reasons for request” there is written:

“PARENTING ASSESSMENT – initially [a different name whose profession is not disclosed] was proposed to undertake the assessment, however, as the two parties live separately and some distance away from the social worker, it was agreed that [the chosen ISW] be instructed as she is able to travel to both parties at a lower cost.”

It is not until much later in the form, in answer to the question “why is the expenditure necessary/justified?” that there is a reference to a risk assessment:-

“Expert will undertake parenting risk assessment on both parents as ordered by the court. We looked at several experts, but this case is complicated with high risk elements such as sexual abuse, mental health and learning difficulties. This expert has expertise in each field”.

The solicitor says that two alternative quotes had been obtained. The ISW selected could write a report for £4,800 made up as to 10 hours reading the relevant court papers at £50 per hour; 16 visits (8 to each parent) also at £50 per hour; 3.5 hours travelling on each occasion at £30 per hour (a total of £840; mileage at 45 pence per miles (£360) with 14 hours at £50 per hour in preparation and completion of her report. No figure is given for attending court. The alternative quotation which the solicitors had obtained was in the sum of £5229 plus VAT and the particular ISW was chosen because she is “local to the parties and therefore cheaper, and has the relevant expertise”.

On 12 January 2012, the LSC wrote to the mother’s solicitors rejecting the application and returning it to the mother’s solicitors. On 26 January 2012 the mother’s solicitors replied repeating the ISW’s cost of travel and adding: -

“This case is complicated as the mother herself is young and grew up in Care due to her parent’s (sic) drug abuse, domestic violence and mother’s prostitution. In addition there are questions over our client’s mental health, possible depression and domestic violence by the child’s father. The Court therefore needs a full and detailed assessment of the mother to determine whether she can safely parent her son who is the subject of those proceedings. Having looked at the various experts, the Court approved [the particular ISW] as she has the relevant experience and was also the cheapest quote.”

Attached to the letter was a description of PAMS, which describes itself as a session based risk assessment process. A decision refusing prior authority having been taken by the LSC the mother’s solicitors both telephoned the LSC on 2 February and on the same day wrote two letters (both marked urgent) to the LSC’s appeal team in Cardiff, seeking in both to answer the LSC’s assertion about the ISW’s cost of travel and seeking to argue; (1) that the ISW was conducting a risk assessment, and (2) accordingly her charging rate (£50 per hour) was within the LSC’s limits. In a faxed addition, the solicitors expressed concern about the delay, since work had been due to commence by the end of January.

According to the LSC the appeal was received in Cardiff on 8 February 2012 and on the following day the LSC in Cardiff acknowledged receipt of the appeal stating that the papers would be passed to the costs assessor.

On 18 February 2010 a Senior Caseworker from the LSC wrote to the mother’s solicitors setting out the Independent Assessor’s reasons for refusing the appeal, and pointing out that the hourly rate for ISWs was set by The Community Legal Service (Funding) (Amendment) Order of 9 May 2011.

Unfortunately, and for reasons which are unknown to me, the letter from the LSC dated 18 February was not received by the mother’s solicitors until 8 March 2012. Four days later the mother’s solicitors wrote to the LSC in Cardiff repeating the argument that the ISW’s rates were within the LSC’s limits and suggesting that the London office of the LSC had not provided Cardiff with copes of the relevant documentation. That argument was repeated in a follow up letter dated 21 March, which was written because the mother’s solicitors had not heard from the LSC. That letter enclosed a letter from the local authority to the court, (inter alia) expressing concern about the delay.

On 11 April 2012 the LSC wrote to the mother’s solicitors effectively repeating the terms of their letter of 9 February. On 16 April the mother’s solicitors again wrote to the LSC in Cardiff stating that the note to the Assessor “wrongly states it is only a parenting assessment” and seeking again to argue that because it was a “risk” assessment the ISW’s rate of charging was within the LSC’s limits.

On 17 April the LSC says that the father’s solicitors were “notified” (it is not said how) that the application for prior authority had been refused on the ground that the rates and hours catered for appeared excessive and that the rates sought exceeded the “codified” rate.

On 20 April District Judge Hess ordered the LSC to attend the hearing before me on 3 May 2012.

On 23 April 2012 the LSC wrote to the mother’s solicitors granting prior authority “for a total amount not exceeding £290” to cover any preparation at a rate not exceeding £30. The authority and the rate were said to be “exclusive of VAT“, although it is unclear how the figure of £290 was calculated and the LSC accepts that this figure is “clearly incorrect”.

On 25 April, the mother’s solicitors queried the figures and referred to the hearing in the PRFD, in relation to which the court had ordered “someone from the LSC to attend”. The LSC says that on the same day it notified the mother’s solicitors (the means are not specified: it appears to have been by letter) of the outcome of the cost assessor’s decision.

On 30 April, the mother’s solicitors wrote to the LSC enclosing the order of District Judge Hess listing the matter before me on 3 May 2012 and directing that a senior officer of the LSC attend the hearing to explain the LSC’s decision to decline to fund the independent social worker’s report and the father’s drug testing “notwithstanding the clear direction of the court on 22 December 2011”.

The chronology makes it clear that there were a number of unsuccessful telephone calls to the LSC, details of which I do not propose to relate save that on a number of occasions the mother’s solicitor was kept “on hold” for an unconscionable length of time.

On 2 May 2012, as I have indicated, a senior legal adviser at the LSC wrote directly to myself. The LSC asserts that letter was simultaneously faxed to the solicitors for the parents. As none of the parties had seen the letter, however, I made it generally available. In the letter, which was expanded in subsequent submissions, the reasons for the LSC’s refusal to fund the ISW at the rates proposed, was set out. The letter added: -

“When the application was resubmitted, it was granted in part for 5 hours to read the papers, 10 hours to assess the parents (5 hours per parent) and 14 hours to draft the report. A claim by the solicitors from the legal aid fund in respect of [the ISW’s] travel will have to be justified on assessment.”

In summary, the LSC has allowed 10 hours (rather than 32) for the ISW to visit and assess the parents. My instructions are that this figure could be increased by three hours to allow some observation of contact time with (D) (a parenting assessment). In any event if (the ISW's) work takes longer than the amounts which have been authorised in the partial grant of prior authority, and the additional work is justified when the solicitors clams for costs are assessed, then those additional amounts will be paid from the legal aid fund.

Paragraph 7.176 of the Standard Civil Contract Specification (of the contact between [Name] & Co and the LSC (query a mistake for the mother’s solicitors) provides “…. If independent social work expertise is claimed as a disbursement it may not be claimed at a rate in excess of such rates as we may from time to time specify on our website. Such rates will be comparable to the rates usually payable for such services by CAFCASS”. The provision was added to the contract on 9 May 2011 by paragraph 3 of the Schedule 5 of the Community Legal Services (Funding) Order 2007 which was inserted into the Funding Order by SI 2011/1027. A FAQ document on the LSC website confirms that the rates are presently £30 an hour outside London and so it would be unlawful for the LSC to pay £50 as quoted.

Consequently, the LSC cannot lawfully pay higher rates that those which are provided for in the CLS Funding Order 2007. If the solicitors disagree with the LSC’s decision on their application for prior authority, they have the right to challenge the LSC’s decision by way of judicial review if they consider the LSC’s stance to be incorrect or otherwise unlawful.

Thus it was not until the letter of 2 May 2012 to myself that the mother’s solicitors had a full explanation of why the LSC had only authorised part funding for the instruction of the ISW.

Since the hearing before me, further information has come to light. The ISW in question states in an e-mail that she has undertaken PAMS assessments where the main concern was risk to children, all of which were charged at £50 per hour. She names four local authorities from which she had had instructions “in recent months”, all of which, she says, have attracted the £50 rate.

In riposte the LSC states that it has been unable to establish from its own record whether what the ISW asserts is correct: they say that they have contacted the firms identified by the ISW for details and will, in due course, provide a fuller explanation.

For present purposes, the law can be taken quite shortly. To the mind of the lawyer it remains curious that an administrative body can effectively render nugatory a judicial decision taken in what the court perceives as the best interests of a child. Where the party or parties who seek to instruct an expert are publicly funded, however, there is no doubt that the LSC has the power, given to it by Parliament, to refuse to fund the instruction or to fund the instruction in part only. Moreover, the LSC undoubtedly has the power, deriving from the same source, to cap the level of fees which may be expended by the expert at a given level. That is undoubted the law. Lawyers may complain that this is an unfair state of affairs, or that they cannot find experts who will work at the rates laid down. Their remedy, if they take the view that the decision

Schedule 5 of the Community Legal Services (Funding) Order 2007 came into force on 9 May 2011. It limits the payment by the LSC to an ISW to the rate of £30 an hour. The LSC does have a discretion which, for present purposes, is contained in paragraph 2 to section 2 of Schedule 6 which sets out the meaning of exceptional circumstances in article 5(2)(e)(ii), as follows –

“……exceptional circumstances are where the expert’s

evidence is key to the client’s case and either –

a)

the complexity of the material is such that an expert with a high level of seniority is required, or

b)

the material is of such a specialised and unusual nature that only very few experts are available to provide the necessary evidence.”

Article 5(2)(e)(ii) of the Funding Order provides:

“5(2) Any contract for the provision of funded services under section 6(3) of the [Access to Justice] Act - ... (e) must .. (ii) provide that the Commission may increase the fixed fees or rates set out in Section 1 of Schedule 6 if it considers it reasonable to do so due to exceptional circumstances as defined in Section 2 of Schedule 6”

It is, I think, also worthwhile citing paragraph 3(1), which provides that the costs and expenses relating to the expert are not payable by the LSC as a disbursement. “Costs and expenses” are defined and the maximum amounts that the LSC can pay for mileage and travelling are capped at 45p per mile and £40 per hour respectively. Paragraph 2 of Section 2 of Schedule 6 to the Funding Order is of no assistance, because the rates which are recoverable from the LSC in respect of the costs of an ISW are governed by paragraph 3 of Schedule 5 to the Funding Order, which is replicated at paragraph 7.176 of the Standard Civil Contract and there is no mechanism in the Funding Order which would allow the LSC to pay higher rates than those which are routinely paid for such services by CAFCASS.

In all the circumstances set out above, it does not seem to me sensible to decide whether or not the ISW should be instructed, and if so on what terms. This is not judicial side-stepping. In the first place, this is essentially a case management decision, to be made by the Tribunal which is going to hear the case. Secondly, additional material has emerged since the hearing before me, and the situation remains inchoate. Thirdly, in my judgment proper case management requires that the decision should not be taken by a third party to whom the case has been assigned for a specified purpose, but by the Tribunal which is to hear the case. I see my function as providing guidance (if I can) both to the LSC and the parties, so that a decision can be taken by the DJ on the basis of that guidance. I do not see it as my function to decide whether or not there is a necessity for the ISW to be instructed for the proper resolution of the case. That is a matter, as I say, for the trial court.

I am also conscious of the fact that any guidance I see able to give should be realistic and not impose unreal burdens on an already hard pressed judiciary and legal profession. Much of what is set out below is predicated on the basis that the case will be managed by one Tribunal, who will, accordingly know the case and be able to make an informed decision about whether he, she or they need a particular expert to enable them to decide the case.

However, it needs to be said, I think, that in the High Court of the Family Division in London, the pressure of work is such that the judge simply does not have the time (as things are at present) to master the details of the documents in each case. I anticipate that the same situation applies in the lower courts. In these circumstances, (notably in care proceedings in which the parties are usually all represented) it seems to me that it behoves the advocates to explain to the judge why a particular expert is required. The court is not a rubber stamp, although the pressures imposed are in danger of turning it into one.

In all the circumstances of this case, therefore, I feel able to offer the following general guidance:-

The Rules, the PLO and the Practice Direction lay down strict time-tables which are to be obeyed. One of the golden rules, however, is that the instruction of an expert should not, unless it is unavoidable, hold up the progress of a case, and in particular should not abort the final hearing. If, therefore, for any reason, an expert is unavoidably instructed late in the day, he or she will need to be informed of the IRH and the likely final hearing date, with a view to his or her report being filed in advance of the latter, and, of course, preferably by the former.

It needs to be remembered. I think, that the LSC is a creature of Statute and that the rates of remuneration concerned have been laid down by Parliament. The LSC was at pains to remind me that the number of applications for prior authority had increased from 216 in November to 1,840 in March, and that the number of applications received in the period identified was 40% higher than for the same period in the previous year. I was also told that the LSC has set up a dedicated team in Cardiff to deal with all applications for prior authority for experts. It aims to process standard applications in 8 days and urgent application in 3 days.

As I have said several times in this judgment, there is no substitute for reasons. As I have said again, they need not be long or over-elaborate. For example, if the expert has to read 500 pages, all of which are relevant to his or her work, he or she should explain why they are relevant, and he or she can say that based on long experience on average he or she reads at the rate of one page a minute (or as the case may be), so that reading the papers is likely to take her a minimum of 8 hours. Similarly, if he or she needs to see the parent or the child more than once, he or she should explain why this is necessary in order to write a proper report. There is no substitute for reasons. It follows that if the expert’s time frame is rejected by the LSC; (a) there is a rational basis for a challenge; and (b) if the LSC’s refusal is manifestly unreasonable, there may be grounds for judicial review of the decision.

In the instant case, the mother’s advisers pointed out, with some force, that the process for prior authority had begun at the beginning of January and it was now May. In that period the case had not advanced, and was no nearer resolution.

Research by Julie Brophy and others demonstrates that parents facing care proceedings often not only have multiple problems but are likely to come from the poorest and worst educated sections of society. Further research by Judith Masson and others shows that solicitors undertaking publicly funded child care work find it very difficult to work with such parents and earn only a fraction of the remuneration they could achieve in private practice.

We expect high standard from solicitors, and rightly so, since the work is critically important. But given the limited resources available, solicitors and the LSC must strive to ensure that time is not wasted and that decisions are made swiftly.

I would like to congratulate the local authority on its presentation of the case. It is clear and well ordered. Whether there should be a further parenting assessment of the parents, and, if so, on what terms I leave to the Tribunal which will decide the case. I repeat that nothing in this judgment should be taken as indicating my view one way or the other, save that the instruction if ordered and going ahead should not further delay the time-table of the case

This case is only about prior authority. It is not my function to engage in the broad criticism of the LSC which, anecdotally, I have heard from solicitors and the Bar – particularly in relation to payment for work done. I simply repeat that in cases involving children, speed is of the essence. Thus whether it is case management by

A suggested form of order, depending on the facts of the individual case, could be in the following terms: -

Even such an order (which will need, of course, to be adapted to the facts of the individual case) should be buttressed by reasons as set out in the guidance which I have attempted to give.

Whilst this judgment was in draft, I have received two documents from the LSC. The relevant parts of the first of these are summarised below. Some of the points in the second document are dealt with in my judgment, some are not. For ease of reference, therefore, I am attaching the second document to this judgment since it sets out fully the LSC’s position. My judgment should, therefore, be read with these matters in mind:

“The reference to the Cardiff team (has been removed) because it is possible that additional staff may be involved in processing these applications in the future and they may not all be located in Cardiff …

… the time taken to process them (applications for prior authority) is for a specific time period and that may of course change. (The LSC) would be happy to update this monthly or quarterly.”