HB v A Local Authority & Anor (Wardship - Costs Funding Order)

The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is ‘no’.

The question arises in circumstances where the local authority has in this case chosen to issue wardship proceedings in respect of the children under the inherent jurisdiction of the High Court rather than care proceedings under Part IV of the Children Act 1989. In choosing this course of action, the local authority avers that it was following what it considers to be guidance given by Hayden J in Re Y (A Minor: Wardship) [2015] EWHC 2099 (Fam) and LB Tower Hamlets v M and Others [2015] EWHC 869 and endorsed, the local authority submits, by the President in Re M [2015] EWHC 1433 (Fam).

In consequence of the type of proceedings issued by the local authority the mother is not entitled to non-means, non-merits tested legal aid, as she would have been had care proceedings been issued. The mother’s application for means and merits tested legal aid has been refused by the Legal Aid Agency on grounds that her monthly income takes her slightly over the income limit stipulated by the regulations, beyond which income limit means and merits tested legal aid is not available for wardship proceedings (the Legal Aid Agency did not take issue with the mother’s application for funding of the basis of merit).

On behalf of the mother, Mr Charles Hale QC and Mr Christopher Barnes (who, with their instructing solicitor and in the very best traditions of the legal profession, appear today for the mother pro bono) submit that, by reason of the local authority choosing to issue wardship proceedings in preference to care proceedings, the mother now finds herself as a parent (as distinct from other categories of carers and family members) who faces grave allegations levelled against her by the State of having caused or being likely to cause significant harm to her children but without an entitlement to non-means, non-merits tested legal aid to defend those allegations. Mr Hale and Mr Barnes accept that the costs funding order that they seek as a remedy to this situation is without precedent. They argue however that, in the present case, the law can and should be extended to provide for such an order, contending as they do that existing principle and authority demonstrates that the court can find a power under its inherent jurisdiction to make a costs funding order in favour of a parent against a local authority in proceedings of this nature.

On behalf of the local authority, Mr Teertha Gupta QC and Mr Oliver Jones argue that to accede to the mother’s application for a costs funding order against the local authority using the inherent jurisdiction would amount to the court engaging in impermissible judicial legislation in circumstances where Parliament has created a detailed, carefully thought out statutory regime governing the provision of legal aid. Mr Gupta and Mr Jones submit that the proper remedy for the situation the mother finds herself in (and that other respondents may potentially find themselves in the future) is for this court to reconsider what the local authority submits is guidance given in Re Y (A Minor: Wardship), LB Tower Hamlets v M and Others, and endorsed in Re M, so as to ensure that all cases in which the State levels allegations against a parent that they have caused or present a risk of significant harm to their child are pursued under the statutory regime designed to deal with such cases, namely Part IV of the Children Act 1989, in respect of which statutory regime Parliament has made provision for non-means, non-merits tested legal aid. Mr Gupta and Mr Jones further submit that, insofar as there remain cases in which it is appropriate for the local authority to proceed under the inherent jurisdiction, the court should consider indicating that a change to the scope of the legal aid regulations is merited to bring cases under the inherent jurisdiction in which a local authority makes allegations against a parent within the scope of non-means, non-merits test legal aid.

The Local Government Association (hereafter the LGA) has accepted an invitation to the court to intervene on the question of a costs funding order. Mr Peter Oldham QC has provided written submissions to the court on behalf of the LGA, for which the court is grateful. Mr Oldham submits that, in circumstances where Parliament could have, but has not made statutory provision for costs funding orders for proceedings of this type, where the mother has not sought to challenge by way of judicial review the lawfulness of the Legal Aid Agency’s refusal to grant her a certificate by reference to the provisions of the Legal Aid and Sentencing of Offenders Act 2012 and the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, where the granting of a costs funding order under the inherent jurisdiction would, in effect, be to set up an ad hoc extra-statutory legal aid fund and where, within this context, the making of a costs funding order would constitute an arbitrary decision and be contrary to good administration, the mother’s application should be dismissed.

The court also invited both the Legal Aid Agency and the Lord Chancellor to intervene on the question of whether a costs funding order should be made in favour of the mother and against the local authority. Those invitations were declined. By way of an email dated 7 February 2017, Mr Michael Rimer, Senior Lawyer for the Legal Aid Agency replied on behalf of the Legal Aid Agency and the Lord Chancellor as follows:

“…the Legal Aid Agency (Director of Legal Aid Casework) and Lord Chancellor politely decline the invitation to intervene. [HB] was assessed as being financially ineligible to be granted civil legal aid. Her witness statement in support of her application confirms that her monthly income is above the threshold of £733. If [HB] thought that the Legal Aid Agency had made an error in assessing her financial resources, she could have written to the Agency to point this out. Additionally, if [HB] thought that the Agency’s decision was wrong or otherwise unlawful, her remedy is to challenge the decision by bringing a claim for judicial review. When an individual is financially ineligible for civil legal aid, there is no discretion in the scheme to grant them funding.”

Finally, by way of introduction, at the conclusion of this hearing the local authority indicated through Mr Gupta and Mr Jones that were the court to dismiss the mother’s application for a costs funding order, and were the court to consider that what the local authority submits is the guidance given by this court on the use of the inherent jurisdiction in cases of alleged radicalisation should be revisited, it would be the local authority’s intention to issue care proceedings in this case.

HB is the mother of ML, aged 6, and BL, aged 3. The children’s father is MB, also known as MM. MB has been in Syria since the end of 2013. There is some evidence that certain material in the family home indicates the father is now dead. Whilst the mother disputes the provenance of that evidence, she has heard rumours that the father is, indeed, dead. The evidence before the court is further said to establish links between a number of other members of the extended maternal family and extremism and terrorism.

It is not necessary for the purposes of this judgment to go into the detail of the allegations levelled at the mother by the local authority. In summary, the local authority seeks findings against the mother that on one occasion she took the children to a town in Turkey close to the Syrian border, that on two occasions she has been stopped leaving the country with large sums of money, that she has sought to provide funds to persons associated with the so called Islamic State, that she holds, and sympathises with extremist views and that, within that context, she has placed, and is at risk of placing her children at risk of significant harm. The mother contends that there are entirely innocent explanations in respect of her conduct and that the local authority’s case comprises nothing more than an assertion of guilt by association with family members with established links to extremism and terrorism.

It is important to note that the mother has conceded the majority of the findings of fact sought by the local authority in this case, albeit that she invites the court to conclude that it cannot properly draw from those facts the inferences the local authority invites it to. In the circumstances, the key issue at the final hearing will be what interpretation is properly to be placed on those facts conceded by the mother. It is further important to note that the local authority’s case is not limited to risk of removal from the jurisdiction, but extends to questions of what material ML may, or may not, have been exposed to in the family home, whether the mother supports the cause of the so-called Islamic State, and the welfare consequences of the same. The mother’s parenting otherwise raises no concerns.

As I have noted, within the foregoing context on 5 August 2016 the local authority applied without notice to the mother under the inherent jurisdiction for permission to invoke the inherent jurisdiction, for orders making the children wards of court and for orders prohibiting the children leaving the jurisdiction and authorising the retention of the passports of the children and the mother by the Police (who at that time held them) and thereafter by the local authority to the order of the court. That application was made under the inherent jurisdiction on the basis of guidance the local authority submits is given in the authorities to which I have already referred. The proceedings were instigated following the mother having been stopped for a second time attempting to leave the jurisdiction with large sums of money on 5 August 2016, following which attempt the mother was detained and the children were taken into Police protection pursuant to s 46 of the Children Act 1989.

On 5 August 2016 Roberts J gave the local authority permission pursuant to s 100 of the Children Act 1989 to invoke the inherent jurisdiction. On that date Roberts J made also orders making the children wards of court, orders prohibiting the children leaving the jurisdiction and orders authorising the retention of the passports of the children and the mother by the Police and thereafter by the local authority to the order of the court. The local authority undertook to issue an application and pay the relevant court fee by 8 August 2016, which it subsequently did, and the case was listed for a further hearing on 9 August 2016.

On 9 August 2016 Roberts J gave case management directions providing for evidence to be filed with the court and listed the matter for a further directions hearing. When the matter came before me for the first time on 31 August 2016 the mother indicated that she wished to give undertakings, without limit of time, not to remove the children from the jurisdiction on the basis that no admissions were made as to the matters alleged by the local authority. I was not prepared to accept undertakings without limit of time on the basis no admissions were made in circumstances where the children are aged only 6 and 3, it being likely that the mother would wish to travel with the children at some point during their minority, leaving the court faced with determining the matters alleged against the mother at a point even further removed from the events which grounded those allegations. Following a further directions hearing before me on 12 October 2016, at which I also dealt with an application by the Metropolitan Police asserting public interest immunity in respect of certain documents I had directed them to disclose, I listed the matter for a final hearing with a time estimate of 5 days commencing on 13 February 2016. In the event, following the mother indicating at the pre-hearing review on 20 January 2017 that she intended to make an application for a costs funding order against the local authority in circumstances where her application for legal aid had been refused and she could not afford legal representation, I reduced the time estimate of the hearing listed this week and converted it into a hearing of the application for a costs funding order. I have adjourned the final hearing to a date in May with a time estimate of 2 days.

In her statement in support of her application for a costs funding order the mother sets out the details of her application for legal aid and the refusal of the same. In summary, the mother’s application for funding from the Legal Aid Agency was refused in circumstances where her disposable income exceeds the monthly income threshold of £733. The mother asserts that after her outgoings are taken into account, including rent, food, travel and childcare, she is left with a sum which is insufficient to privately fund legal representation. The local authority has in this case provided, on a voluntary basis, funding to the mother to enable her to instruct lawyers to prepare her response to the local authority’s Schedule of Findings and her final statement of evidence. This funding was offered without prejudice to local authority’s position with regard to the mother’s application for a costs funding order. The local authority has declined further requests by the mother.

The mother now applies for a costs funding order against the local authority requiring the local authority to fund her legal advice and representation. Those acting on behalf of the mother have prepared a costs estimate detailing the anticipated costs up to and including the final hearing of this matter in May 2017.

It is important to note that Mr Hale and Mr Barnes do not, quite properly in light of the observations made by the Court of Appeal in Re K and another (Children) [2015] 1 WLR 3801, seek to challenge the legality of the legal aid scheme under which the mother’s application for funding fell to be considered or to argue it is not compatible with the demands of Art 6 and Art 8. Further, Mr Hale and Mr Barnes concede, again quite properly having regard to the decision of the Court of Appeal in Re K, that the decision of the Legal Aid Agency to refuse the mother’s application based on her means was lawful and cannot be said to amount to a breach of Art 6 or Art 8. Within this context, Mr Hale and Mr Barnes make clear that the mother accepts that an application for judicial review of the Legal Aid Agency’s refusal of her application for funding cannot be said to have a realistic prospect of success.

Mr Hale and Mr Barnes further concede, as they must, that the court has no statutory power to make a costs funding order against the local authority in proceedings brought under the inherent jurisdiction (although they also make the point that no statutory or other provision excludes the existence of a jurisdiction to make such an order). Within this context, they further make the concession that if court has the power to make a costs funding order against a local authority in proceedings brought by the local authority under the inherent jurisdiction of the High Court then that power can only arise under the inherent jurisdiction. Mr Hale and Mr Barnes further submit that such a power does arise under the inherent jurisdiction. They put their submissions in this regard as follows.

First, Mr Hale and Mr Barnes submit that the inherent jurisdiction of the court to protect the best interests of children is very wide in its scope, citing the observation of Keehan J in Birmingham City Council v Safraz, Riaz and Others [2014] EWHC 4247 (Fam) at [42], who was in turn quoting the observation of Jacob in The Inherent Jurisdiction of the Court (1970) Current Legal Problems 23 that the inherent jurisdiction of the High Court:

“…may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy challenge to determine its quality and establish its limits”

and the observation of Keehan J in Birmingham City Council v Safraz, Riaz and Others [2014] EWHC 4247 (Fam) at [45], quoting Waite LJ in R v Central Independent Television Plc [1994] Fam 192 at 207-208 that:

“…the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nonetheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages.”

Within this context, Mr Hale and Mr Barnes seek to emphasise the purpose of the inherent jurisdiction to protect children and the very wide ambit of the inherent jurisdiction. They submit that the continuing relevance of the inherent jurisdiction lies in its ability to provide remedies which promote the best interests of children, which remedies would not otherwise be available to the court.

Second, Mr Hale and Mr Barnes submit that the court has, in the past, readily acceded to requests to enlarge existing statutory powers under s 22 of the Matrimonial Causes Act 1973 to order maintenance pending suit (in A v A [2001] 1 FLR 377, G v G (Maintenance Pending Suite: Costs) [2003] 2 FLR 71, Moses-Taiga v Taiga [2006] 1 FLR 1074 and Currey v Currey [2006] EWCA Civ 1338) and under Sch 1 of the Children Act 1989 to order periodical payments for the benefit of the children (in M-T v T [2007] 2 FLR 925, G v G (Child Maintenance: Interim Costs Provisions) [2009] EWHC 2080 (Fam) and CF v KM [2011] 1 FLR 208) to make provision for the funding of legal expenses. In particular, Mr Hale and Mr Barnes rely on the conclusion of Charles J in CF v KM at [36] (applied by Cobb J in Re F (Child)(Financial Provision: Legal Costs Funding) [2016] 1 WLR 4720) that the court has jurisdiction to make an order under Sch 1 of the Children Act 1989 for a lump sum to fund the legal costs in proceedings under s 8 of the Children Act 1989 in circumstances where, by reason of the fact that such an order will, by ensuring ‘equality of arms’, result in the court being fully informed as to all relevant factors and views in proceedings concerning the welfare of the child, such an order can be said to be “for the benefit of the child” for the purposes of Sch1 para 1(2)(c)(i) of the 1989 Act.

Third, within this context, and within the context of the purpose and wide extent of the court’s inherent jurisdiction with respect to children, Mr Hale and Mr Barnes submit that, by parity of reasoning, there is plainly a principled basis for deriving a power under the inherent jurisdiction to grant a costs funding order against a local authority in proceedings brought under the inherent jurisdiction. Namely, that costs funding for advice and representation, and thereby ‘equality of arms’, may be necessary in proceedings of this nature to protect the best interests of the child by ensuring a court engaged in a quasi-inquisitorial process designed to determine the child’s welfare reaches a decision fully informed as to all relevant factors and views. Within this context, Mr Hale and Mr Barnes submit that a costs funding order against the local authority is properly characterised as a cost funding order against a party to the proceedings rather than a costs funding order against a public authority (as Mr Gupta and Mr Jones on behalf of the local authority, and Mr Oldham on behalf of the LGA seek to characterise it).

Fourth, Mr Hale and Mr Barnes submit that there is a further principled basis for deriving a power under the inherent jurisdiction to grant a costs funding order against a local authority. Namely, that such a jurisdiction is necessary where funding would not otherwise be available, and an absence of funding for legal representation is capable of amounting to a breach Art 6 or Art 8, which breach the court would be bound to remedy. Mr Hale and Mr Barnes concede that there is no absolute right to the provision of public funding for legal representation, that it may be acceptable to impose both means and merits conditions to the grant of legal aid and that it is not incumbent on the State to ensure complete equality of arms. However, they submit that a lack of legal advice and representation can amount to a breach of Art 6 and the procedural aspects of Art 8, and does so in this case, relying on the recognition by the President in D (A Child) [2014] EWFC 39 at [31] and by the Master of the Rolls in Re K at [61] that such breaches can arise. Within this context, Mr Hale and Mr Barnes submit that, absent a power under the inherent jurisdiction to make a costs funding order, the court would have no means, as a public authority for the purposes of s 6 of the Human Rights Act 1998, of remedying an identified breach of a parent’s Art 6 and Art 8 rights arising out of a lack of legal advice and representation.

Fifth, Mr Hale and Mr Barnes submit that the higher courts have already recognised the possibility of the local authority having to fund the costs of a parent who is not entitled to legal aid. They rely on the observation of the President in Q v Q [2014] EWFC 7 at [18] and [19] as follows:

“[18] There may be a need in this kind of situation to explore whether there is some other pocket to which the court can have resort to avoid the problem, if it is necessary in the particular case - I emphasise the word "necessary" - in order to ensure a just and fair hearing.  In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay.  In a case such as the present where one party is publicly funded, because the mother has public funding, but the father does not, it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds.  It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.

[19] May I be very clear?  I am merely identifying possible arguments.  None of these arguments may in the event withstand scrutiny.  Each may dissolve as a mirage.  But it seems to me that these are matters which required to be investigated in justice not merely to the father but I emphasise equally importantly to the son, as well as in the wider public interest of other litigants in a similar situation to that of the father here.  I emphasise the interests of the son because, under our procedure in private law case like this where the child is not independently represented, fairness to the child can only be achieved if there is fairness to those who are litigating.  There is the risk that, if one has a process which is not fair to one of the parents, that unfairness may in the final analysis rebound to the disadvantage of the child.”

Mr Hale and Mr Barnes rely also on the observation of Baroness Hale of Richmond in Re S (A Child) [2015] UKSC 20 at [33] as follows:

“But nor should local authorities be in any better position than private parties to children’s proceedings. The object of the exercise is to achieve the best outcome for the child. If the best outcome for the child is to be brought up by her own family, there may be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In other words, the welfare of the child would be put at risk if the family had to bear its own costs. In those circumstances, just as it may be appropriate to order the richer parent to pay the costs of the poorer parent with whom the child is to live, it may also be appropriate to order the local authority to pay the costs of the parent with whom the child is to live, if otherwise the child’s welfare would be put at risk. (It may be that this is one of the reasons why parents are automatically entitled to public funding in care cases.)”

Sixth, Mr Hale and Mr Barnes submit that it would be unfair, and hence objectionable, to leave the mother in the position of not having funding where other parents facing identical allegations in the context of care proceedings are automatically entitled to legal aid, the mother’s position being simply a product of the local authority’s decision to issue proceedings under the inherent jurisdiction rather than proceedings under Part IV of the Children Act 1989.

As to the criteria for making a costs funding order if the power to do so exists under the inherent jurisdiction, Mr Hale and Mr Barnes submit that the existing principles for granting costs funding orders should apply, mutatis mutandis, in this context. Mr Hale and Mr Barnes submit that, following the decision of Mostyn J in MG & JG v JF [2015] EWHC 564 (Fam), the principles to be applied when determining whether to make a costs funding order against the local authority are those set out in Rubin v Rubin [2014] EWHC 611 (Fam), CF v KM [2011] 1 FLR 208 and Currey v Currey (No 2) [2007] 1 FLR 946.

With respect to the merits of exercising the power that Mr Hale and Mr Barnes submit the court can find under the inherent jurisdiction in this case, they submit that the court should exercise that power and grant a costs funding order against the local authority for the following reasons:

Finally, Mr Hale and Mr Barnes accept “in broad terms” the scarcity of local authority resources. However, they submit that the given the small number of cases of alleged radicalisation brought under the inherent jurisdiction, the precedent set by the granting of a costs funding order against the local authority would not result, as the LGA contend, in a marked increase in the demand on limited local authority resources and neither would an increase be seen due to the opening of the ‘floodgates’ to large numbers of applications for such orders. In the circumstances, Mr Hale and Mr Barnes submit that considerations of public policy should not prevent the court from determining that there is a power under the inherent jurisdiction to make a costs funding order.

The local authority submits that in the absence of a statutory power to grant a costs funding order against the local authority, the court cannot, and in any event should not, find such a power under its inherent jurisdiction. Within this context, Mr Gupta and Mr Jones submit that this cases falls outside both Sch 1 of the Children Act 1989 (as these proceedings do not involve an “application by a parent, or guardian or special guardian” for the purposes of Sch 1 of the 1989 Act) and the relevant provisions of the Matrimonial Causes Act 1973 as amended. As I have noted, this submission is not resisted by Mr Hale and Mr Barnes.

Beyond the question of a statutory power, whilst acknowledging that in Q v Q the President mooted the possibility of a local authority, or the court itself, funding the cost of a parent’s legal representation, Mr Gupta and Mr Jones emphasise the President’s caveat that in so stating, the President was “merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage”. Mr Gupta and Mr Jones submit that that is precisely the position in this case and that, under close scrutiny, the mother’s arguments that the court has power under the inherent jurisdiction to make a costs funding order simply “dissolve as a mirage”.

Mr Gupta and Mr Jones submit that to derive a power from the inherent jurisdiction to make a costs funding order against a local authority in proceedings brought under the inherent jurisdiction would be revolutionary rather than evolutionary, and would be plainly wrong in principle. In this regard, Mr Gupta and Mr Jones rely on the decision of the Court of Appeal in Re K.They submit that Re K is authority for the proposition that the inherent jurisdiction does not give the court the power to require a local authority to incur public expenditure in funding legal representation in family proceedings for a litigant who does not qualify for legal aid because she does not satisfy the means test under the detailed and comprehensive scheme provided by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in circumstances where the court must respect the boundaries drawn by Parliament for public funding of legal representation for the reasons set out by the Master of the Rolls in Re K.

Mr Gupta and Mr Jones further submit that Art 6 and Art 8 do not assist the mother in establishing that the court has a power under the inherent jurisdiction to make a costs funding order. They submit that if, as the mother accepts, it is lawful and not a breach of a litigant’s rights under Art 6 and Art 8 rights for the Legal Aid Agency to refuse legal aid funding on the basis of means in accordance with the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and associated regulations, it cannot be said to be a breach of those self-same provisions for the court then to refuse to order costs funding from an alternative public source to a litigant lawfully denied such funding by the Legal Aid Agency such as to necessitate a power under the inherent jurisdiction to make a costs funding order. Within this context, Mr Gupta and Mr Jones emphasise the fact that the mother has not sought to judicially review the decision of the Legal Aid Agency to refuse her funding. They submit that that course of action in the Administrative Court, and not an application in the Family Division that attempts to create a new jurisdiction in respect of costs funding orders, is the appropriate course for the mother to follow if she contends that her Art 6 and Art 8 rights are breached by a lack of legal representation consequent upon the refusal on the part of the Legal Aid Agency to fund legal representation for her.

Mr Gupta and Mr Jones submit that public policy arguments fall to be considered where an application is being made to extend private law costs funding remedies based on common law doctrine to the realm of public law based on a contended for inadequacy in the scope of the existing statutory funding regime. In particular, Mr Gupta and Mr Jones submit that to shift the financial burden of funding litigants in proceedings of this nature from a litigant assessed under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 as having sufficient means not to qualify for legal aid onto the local authority, would result in a further and very significant call on already hard pressed budgets.

In particular, Mr Gupta and Mr Jones submit that this would inevitably and negatively impact on budgets available to meet the needs of other service users in the context of an increase in number of cases of alleged radicalisation and, they submit, in circumstances where the granting of a costs funding order would ‘open the floodgates’ by inviting applications for similar orders in other cases involving local authorities where there is a gap in public funding, for example cases where interveners are involved in finding of fact hearings and parents who find themselves in similar circumstances to those considered by the President in a Q v Q and by Baker J in Re DE (A Child). Within this context, Mr Gupta and Mr Jones emphasise that, as noted by the Supreme Court in Re T (Children)(Care Proceedings: Costs)(CAFCASS and Another Intervening) [2012] 1 WLR 2281, a local authority is duty bound to bring proceedings and seek findings in a case of alleged significant harm or risk of significant harm to a child.

As to the merits of the mother’s application should the court determine that, contrary to the submissions of the local authority and the LGA, that it does have power under the inherent jurisdiction to make a costs funding order against the local authority, Mr Gupta and Mr Jones submit that the mother’s application must fail on the merits. They submit that, applying the Rubin v Rubin criteria, the mother has not provided sufficient detail to permit the court to assess the requirement for a costs funding order including, most fundamentally, confirmation that there is no alternative to a costs funding order against the local authority. In particular, the local authority relies on the fact the mother may have funds to pay for representation at the final hearing in circumstances where she has, or will be having the sum of £3,000 returned to her following the Police indicating that they do not now pursue confiscation proceedings in respect of the funds seized from her when she was stopped attempting to leave the country in 2016.

Further in this context, Mr Gupta and Mr Jones submit that the mother is eminently capable of representing herself at the final hearing in circumstances where the majority of the facts are agreed, where there will be limited need to cross-examine witnesses, no need to cross-examine experts and where the primary issue is the inferences to be drawn from the agreed facts. Within this context, Mr Gupta and Mr Jones remind the court that the local authority has already funded advice for the mother for preparing not only her response to threshold but her final statement to ensure she had proper advice and assistance when responding to the key issue of what inferences should be drawn from the facts she has admitted.

Finally, notwithstanding their submission that the court does not, for the foregoing reasons, have jurisdiction to make a costs funding order or, if it does, the court should not make such an order, Mr Gupta and Mr Jones make clear that the local authority recognises the difficulties arising from a parent not having funding in proceedings in which they face allegations of having caused, or of presenting a risk of significant harm to their child or children. Within this context, Mr Gupta and Mr Jones submit that the solution in this case (and in future similar cases) is not the creation of a new jurisdiction under the inherent jurisdiction to grant costs funding orders. Rather, Mr Gupta and Mr Jones submit that the appropriate remedy is to revisit what the local authority contends is guidance given by Hayden J in Re Y (A Minor: Wardship) and LB Tower Hamlets v M & Ors, and what it contends are the supporting dicta of the President in Re M, to ensure that cases of alleged radicalisation, in which parents face allegations of having caused, or of presenting a risk of significant harm to their children, are brought under the statutory regime designed to deal with significant harm to children, in respect of which statutory regime Parliament has created a system of non-means, non-merits tested legal aid.

Mr Gupta and Mr Jones submit that the effect of encouraging local authorities to conduct radicalisation cases under the inherent jurisdiction, on the basis that that jurisdiction constitutes a “lighter touch”, has been to deprive respondent parents of the right to automatic, non-means, non-merits tested legal aid in cases of actual or threatened significant harm to children. Mr Gupta and Mr Jones submit that this has in this case, and will in other cases, result in an impact far heavier than the light touch intended, and an impact far heavier than had care proceedings been instigated, having regard to the seminal importance of legal representation in proceedings of this nature. Within the context of the well-established principle that the court should begin with a preference for the least interventionist approach, Mr Gupta and Mr Jones further submit that working within the four corners of a jurisdiction expressly established to deal with actual or threatened harm to children on the basis of parental responsibility being shared by the State where necessary, rather than the wide ambit of the inherent jurisdiction on the basis of parental responsibility being removed under wardship, is in fact the lighter touch. Mr Gupta and Mr Jones further note a number of other features of care proceedings which, they submit, tend towards favouring the use of that jurisdiction in cases of this nature, including the availability of remedies under the inherent jurisdiction within proceedings under Part IV of the 1989 Act where required.

On behalf of the LGA, Mr Oldham submits that there is specific statutory provision for a legal costs funding order in the Matrimonial Causes Act 1973 as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Schedule 1 of the Children Act 1989. Mr Oldham submits that these provisions do not extend to proceedings of this nature and further submits that, within this context, Parliament could have, but has not, made statutory provision for such orders in proceedings of this type.

Mr Oldham further submits that the Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes very detailed provision for the type of cases in which funding by way of legal aid is available, including proceedings concerning children, and that clear financial thresholds are set for certain types of proceedings by the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. Within the context of this statutory framework, Mr Oldham reminds the court that the mother’s application for legal aid was refused on the basis of her means and that the mother does not seek to challenge the lawfulness of the Legal Aid Agency’s decision, or of the relevant statutory financial thresholds for legal aid.

In the foregoing circumstances, Mr Oldham submits that a public authority having taken a lawful decision by reference to a lawful and carefully crafted statutory scheme to refuse the mother’s application for public funding, the mother’s application to this court constitutes an attempt to require an alternative, and local, public authority to fill what she claims is a funding gap left by that lawful decision. Mr Oldham submits that the mother, in effect, asks the court to make the local authority into an additional, extra-statutory, legal aid fund to be utilised on an ad hoc basis. He submits that this would be an extraordinary outcome and an outcome manifestly contrary to the intention of Parliament.

Within this context, Mr Oldham further submits that any decision to make a costs funding order against the local authority would be arbitrary and contrary to good administration. Mr Oldham argues that the grant or refusal of legal aid is determined by a public authority pursuant to a detailed statutory scheme whose terms sift different litigants’ claims on a finite budget, both by reference to the type of claim involved and by reference to the litigant’s means. By contrast, he submits that, in considering whether to make a costs funding order against an alternative public authority, namely the local authority, the court is in no position to weigh that application for legal funding against all the other claims on a local authority’s finite budget and decide which is the more meritorious, the court having neither the factual information nor the decision-making matrix to do so. Accordingly, Mr Oldham submits that, absent express statutory authority, a costs funding order against the local authority would amount to an arbitrary intervention by the court in the local authority’s finances and affairs.

Mr Oldham also submits on behalf of the LGA that public policy arguments fall to be considered when determining the application made by the mother. Mr Oldham contends that that granting a costs funding order against the local authority in this case would set a precedent that would increase the very severe financial constraints that the LGA submits local authorities now operate under. Like the local authority, Mr Oldham submits that the making of a costs funding order against the local authority would act to open ‘the floodgates’.

Mr Oldham argues however that, in addition to being of application in the case examples relied on by the local authority, the effect would be even wider than contended for by the local authority in circumstances where the mother seeks to justify her application, inter alia, by reference to Arts 6 and 8 of the ECHR. Mr Oldham points out that these articles are of application in all other proceedings in which local authorities are required to engage where a litigant may not have funding, including, by way of example, a judicial review of a failure to provide care pursuant to a care plan under the Care Act 2014 or to an appeal to the First Tier Tribunal by a parent against an education and health care plan under the Children and Schools Act 2014 which does not provide for education at the family’s preferred school. Mr Oldham submits that if the basis on which the application succeeds is a more general and inherent power of the High Court, the potential application of the purported jurisdiction to make a costs funding order will be wider still. Finally, and within this context, Mr Oldham reminds the court that it should not be assumed that a local authority in any given case has greater means to devote to the proceedings than the person whose circumstances led them to apply for a costs funding order, i.e. in the same way a litigant’s funds might be fully committed so as to preclude the payment of legal fees, the local authority’s funds might likewise be fully committed, with the same result.

Should the court determine, contrary to the submissions of the local authority and the LGA, that it does have jurisdiction to make a costs funding order, Mr Oldham submits that the availability, and the extent if available of such an order should be very strictly circumscribed for the reasons relied on by the LGA to argue that no jurisdiction exists. In particular, Mr Oldham submits that applicants for such an order should generally have sought and failed in a judicial review of the refusal of the Legal Aid Agency to grant funding. Mr Oldham submits that it would be remarkable for a court, in effect, to remedy a perceived gap in the legal aid scheme on an ad hoc basis, without the lawfulness of the decision which created the alleged gap being tested in court.

The Children Act 1989 distinguishes between those cases in which the issue relating to the child is brought before the court by a relative or other interested person (private law proceedings under Part II of the 1989 Act) and cases in which the State seeks to intervene in the child’s upbringing (public law proceedings under Part IV of the 1989 Act).

Part IV of the Children Act 1989 provides the statutory framework for State intervention in the family where it is demonstrated to the requisite standard that the child is suffering or is likely to suffer significant harm and that harm or likelihood of harm is either attributable to the care given to the child, or likely to be given if a care order or supervision order were not made, that care not being what it would be reasonable to expect to give the child, or attributable to the child is beyond parental control (the so called ‘threshold criteria’ under s 31(2) of the Children Act 1989). Proceedings under Part IV of the Children Act 1989 include the child as an automatic respondent and are subject to statutorily imposed timescales to ensure delay is avoided. The DOH guidance entitled The Children Act 1989 Guidance and Regulations – Volume 1 Court Orders DOH (1991) stated as follows with respect to the scheme provided by Part IV of the Children Act 1989:

“The new legal scheme for civil care and supervision proceedings is founded on a number of principles. The first is that compulsory intervention in the care and upbringing of a child will be possible only by court order following proceedings under the new statutory scheme, in which the child, his parents and others who are connected with the child will be able to participate fully. The proceedings should establish what action, if any, is in the child’s best interests, and the procedure should be as fair as possible to all concerned.”

Where the threshold criteria are met, and where the court is satisfied, having directed itself by reference to the matters set out in ss 1 and 34(11) of the 1989 Act, Part IV of the Children Act 1989 and associated regulations and guidance, it may make orders, pursuant to a comprehensive statutory code, designed to ensure the promotion of the child’s welfare through the local authority sharing parental responsibility for the child with the parents under a care order (in contrast to, in effect, the removal of parental responsibility of a parent and the vesting of it in a High Court judge under wardship), or supervising the care of the child under a supervision order. The statutory code includes comprehensive provisions for regular review of the child’s progress and the actions of the local authority within the context of State intervention, including provision for the views of the child to be heard within that review process, and through comprehensive ‘leaving care’ provisions for certain children designed to ensure continuing support and assistance following intervention by the State. The DOH guidance entitled An Introduction to The Children Act 1989 DOH (1989) stated as follows with respect to the overall aim of Part IV of the Children Act 1989:

“The Act seeks to protect children from both the harm which can arise from failures or abuse within the family and from harm which can be caused by unwarranted intervention in their family life. There is a tension between these two objectives which the Act seeks to regulate so as to optimise the overall protection provided for children in general.”

The inherent jurisdiction of the High Court with respect to children derives from the Royal Prerogative, as parens patriae, to take care of those who are not able to take care of themselves (see Re L (An Infant) [1968] 1 All ER 20 at 24G). Its origins lie in the feudal period when, as an incidence of tenure, upon a tenant’s death, the lord became guardian of the surviving infant heir’s land and body (see Lowe, N. and White, R. Wards of Court 1986, 2^nd edn). Prior to the implementation of the Children Act 1989 the most frequently seen example of the exercise by the High Court of its inherent jurisdiction over children was in wardship, i.e. children made wards of court by virtue of an order to that effect granted by the High Court. It is important to note however, that wardship is merely one manifestation of the inherent jurisdiction with respect to children and that (subject to the distinguishing characteristics of wardship being that custody of the child is vested in the court and that, although day to day control is vested in the individual or local authority, no important step can be taken in the child’s life without the court’s consent) the jurisdiction in wardship and the inherent jurisdiction of the High Court are the same (see Re Z (a minor)(freedom of publication) [1997] Fam 1). In the circumstances, the inherent jurisdiction in respect of children can be invoked without wardship (see Re W (A Minor)(Medical Treatment: Court’s Jurisdiction) [1993] Fam 64).

The inherent jurisdiction with respect to children is exercised by reference to the child’s best interests, which are the court’s paramount concern. In Re E (SA)(A Minor)(Wardship) [1984] 1 All ER 289 at 290 Lord Scarman observed that, when exercising the jurisdiction in wardship, the court:

“…must never lose sight of a fundamental feature of the jurisdiction, namely, that it is exercising a wardship, not an adversarial jurisdiction. Its duty is not limited to the dispute between the parties: on the contrary, its duty is to act in the way best suited in its judgment to serve the true interest and welfare of the ward. In exercising wardship jurisdiction, the court is a true family court. Its paramount concern is the welfare of its ward.”

Under its inherent jurisdiction, the court may make any order or determine any issue in respect of a child. However, whilst the jurisdiction of the court under the inherent jurisdiction is theoretically unlimited, there are, in fact, far-reaching limitations on the exercise of the jurisdiction (see Re X (A Minor)(Wardship: Restriction on Publication) [1975] All ER 697 at 706G).

Within the context of the instant case, the Children Act 1989 s 100 imposes specific prohibitions on the use of the inherent jurisdiction in cases involving a public law element. Pursuant to s 100 of the 1989 Act, no application for any exercise of the court’s inherent jurisdiction with respect to children may be made by the local authority unless that local authority has obtained the permission of the court pursuant to s 100(3) of the Act. The court will only grant such permission if it is satisfied, pursuant to s 100(4), that (a) the result the local authority seeks to achieve could not be achieved through the making of any order otherwise than in the exercise of the inherent jurisdiction and for which the local authority is entitled to apply and (b) there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he or she is likely to suffer significant harm.

I pause to note that, as the foregoing discussion highlights, in both an application for interim orders under Part IV of the Children Act 1989 and an application under s 100 of the Children Act 1989 to invoke the inherent jurisdiction, a local authority must establish what are known colloquially as “threshold criteria”. In respect of both such applications, a local authority is not able to secure the orders that it seeks unless it can demonstrate that defined threshold criteria are satisfied. Where the local authority seeks permission to invoke the inherent jurisdiction it first must satisfy the court pursuant to s 100(4)(b) that, inter alia, “there is reasonable cause to believe” that if the court’s inherent jurisdiction is not exercised the child is likely to suffer significant harm. Where a local authority seeks an interim care or supervision order it must satisfy the court pursuant to s 38(2) that “there are reasonable grounds for believing” that the child is suffering or is likely to suffer significant harm for the purposes of s 31(2) of the Act. It follows that where a local authority can satisfy the threshold criteria pursuant to s 100(4)(b) of the Children Act 1989 permission to invoke the inherent jurisdiction, it will likely also be able to satisfy the threshold criteria for an interim care or supervision order for the purposes of s 38(2) of the Children Act 1989.

However, it is also of note that once these respective interim stages have been passed the applicable criteria for granting final orders are not the same under the inherent jurisdiction and under Part IV of the Children Act 1989. Under Part IV of the Children Act 1989 the court may only grant a final care or supervision order if it is satisfied that the threshold criteria under s 31(2) of the Act are made out (namely that the child is suffering or is likely to suffer significant harm attributable to the care given or likely to be given to him or her) and that a final care or supervision order is in the child’s best interests having regard to the matters set out in s.1 of the Act. By contrast, under the inherent jurisdiction, permission having been given to the local authority to apply by reference to s 100(4), a court may grant a final order if that order is in the child’s best interests, without the need to surmount any further threshold test for intervention with respect to significant harm.

The rationale behind s 100 of the 1989 Act appears to be that the powers under the 1989 Act are generally sufficient to protect the child’s welfare and that the legal basis for State intervention in family life should be uniform and certain in circumstances where the proper limits of that intervention must be “clearly perceivable in the law” (see Lord Mackay of Clashfern LC Joseph Jackson Memorial Lecture 1989 (1989) 139 NLJ 505 at 507-508). As to the effect of s 100, the DOH guidance entitled An Introduction to The Children Act 1989 DOH (1989) stated:

“Local authorities will no longer be able to use the general power of the High Court to act for the good of children (usually through wardship proceedings) as an alternative to care or supervision orders or otherwise to obtain compulsory powers over the child. However, if the High Court is persuaded that there is a likelihood of significant harm to a child if these powers are not invoked and that the matter is one for which the Act makes no provision the High Court may use its inherent powers to intervene. The purposes of this provision is to provide a safety net to cover circumstances not envisaged by the Act.”

Thus, within the context of the statutory scheme provided by Part IV of the Children Act 1989 in respect of children who have suffered, or are at risk of suffering significant harm, the court’s inherent jurisdiction to make orders in respect of such children in favour of the local authority is heavily proscribed. Further, and within this context, when deciding whether to permit a local authority to invoke the inherent jurisdiction the courts have emphasised that fidelity to the scheme and purpose of the Children Act 1989 is important. In Re T (A Minor)(Wardship: Representation) [1994] Fam 4 at 9Waite LJ said:

“The jurisdiction is not only circumscribed procedurally. The courts' undoubted discretion to allow wardship proceedings to go forward in a suitable case is subject to their clear duty, in loyalty to the scheme and purpose of the Children Act legislation, to permit recourse to wardship only when it becomes apparent to the judge in any particular case that the question which the court is determining in regard to the minor's upbringing or property cannot be resolved under the statutory procedures in Part II of the Act in a way which secures the best interests of the child; or where the minor's person is in a state of jeopardy from which he can only be protected by giving him the status of a ward of court; or where the court's functions need to be secured from the effects, potentially injurious to the child, of external influences (intrusive publicity for example) and it is decided that conferring on the child the status of a ward will prove a more effective deterrent than the ordinary sanctions of contempt of court which already protect all family proceedings.”

Within this context, FPR 2010 PD12D para 1.1 now makes clear that proceedings under the inherent jurisdiction for an order to determine any issue in relation to a child should not be commenced unless it is clear that the issues concerning the child cannot be resolved under the Children Act 1989.

Finally, it is important to note that the inherent jurisdiction can be, and has been used in conjunction with care proceedings under Part IV of the Children Act 1989 where it has been necessary to address discrete issues not capable of being dealt with under the 1989 Act, but where care proceedings remain the appropriate overarching vehicle for determining the child’s welfare. By way of recent examples, there is the decision of this court in Re SL (Permission to Vaccinate) [2017] EWHC 125 (Fam), in which the court granted an application by the local authority in ongoing care proceedings for permission to invoke the inherent jurisdiction and an order under the inherent jurisdiction giving the local authority permission to arrange for the vaccination of one of the children, and the decision of Russell J in A Local Authority & Anor v MC & Ors (Care Proceedings)(Inherent Jurisdiction) [2017] EWHC 370 (Fam).

Within the context of the foregoing discussion of the court’s respective powers under Part IV of the Children Act 1989 and under the inherent jurisdiction, and as I have already observed, the local authority avers that in this case it issued proceedings under the inherent jurisdiction of the High Court following what it considers to be guidance given by Hayden J in Re Y (A Minor: Wardship) [2015] EWHC 2099 (Fam) and LB Tower Hamlets v M and Others [2015] EWHC 869 and endorsed, the local authority submits, by the President in Re M [2015] EWHC 1433 (Fam).

Taking the first two of these decisions in order, in LB Tower Hamlets v M and Others [2015] EWHC 869 Hayden J dealt with two without notice applications for orders under the inherent jurisdiction to prevent older children from travelling to Syria in circumstances where the local authorities assessed their families as being incapable of doing so. In explaining his rationale for using wardship to address this risk in each case, having noted that wardship is primarily used in contemporary family law in cases involving alleged international child abduction, Hayden J said the following:

“[9] As such, the status of a Ward of the High Court of England and Wales has achieved international recognition.  For this reason, and because it vests parental responsibility solely in the High Court, it is particularly apposite in circumstances such as those contemplated here.  All the major decisions relating to such children for the period of the operation of the wardship require the approval of the High Court.

[10] Thus, pursuant to this jurisdiction, I made orders relating to the retrieval of the passport of each of the young people concerned in order to use the full powers at the court's disposal to endeavour to prevent the wards leaving the United Kingdom.

[11] This course, though it arises in circumstances which do not have recent precedent, did not in any way require an evolution in the law itself.  For example, the jurisdiction was recognised in Re A K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569.”

It is of note that, whilst plainly satisfied that the inherent jurisdiction was the appropriate vehicle in the two cases before him, nowhere in LB Tower Hamlets v M and Others does Hayden J seek to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation. Further, I note that in concluding his judgment, Hayden J observed as follows (cited with approval by the President in Re M at [33]):

“[57] The family court system, particularly the Family Division, is, and always has been, in my view, in the vanguard of change in life and society. Where there are changes in medicine or in technology or cultural change, so often they resonate first within the family. Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for children than that which the courts have had to deal with in the past.

[58] What, however, is clear is that the conventional safeguarding principles will still afford the best protection. Once again, this court finds it necessary to reiterate that only open dialogue, appropriate sharing of information, mutual respect for the differing roles involved and inter agency cooperation is going to provide the kind of protection that I am satisfied that the children subject to these applications truly require.”

In Re Y (A Minor: Wardship) Hayden J was dealing with proceedings under the inherent jurisdiction brought by a local authority which again concerned an older child, the local authority being concerned that a 16-year-old boy might seek to follow his brothers to Syria in the context of arrangements having been made for him to travel out of the jurisdiction. Once again, Hayden J considered the inherent jurisdiction to be the appropriate vehicle for addressing the risks identified in the case and observed as follows in respect of wardship:

“17.

It is submitted it has a flexibility to it that enables it to make interventions into the lives of children which can, when required, have a lightness of touch, and equally when required can have very draconian reach indeed, for after all it removes parental responsibility from either parent or local authority and places it in the hands of the High Court judge.

…

20.

There are a number of cases to which I have been referred which emphasise the subtlety of the scope of wardship and its capacity to tailor bespoke solutions to complex and challenging situations.  Where circumstances are unusual the court will consider warding a child within care proceedings to maintain control over decisions relating to children that require these carefully crafted individual solutions. 

21.

The decision of Hedley J in Re K (Children with Disabilities: Wardship) [2012] 2 FLR 745 is a particularly striking example of the thoughtful and creative use of wardship in what the judge referred to as "a unique solution for a unique case", an approach which was later reviewed in the Court of Appeal and endorsed as an apposite solution by Thorpe LJ in Re E [2012] EWCA Civ. 1773.  There is no doubt therefore that the jurisdiction exists, no doubt in my view that it is particularly appropriate to this extremely sensitive and sad situation, and no doubt either that it seems to be working effectively.

22.

Although it deprives the mother of parental responsibility it is, to my mind, a less substantial intervention impractical terms than would be the instigation of public law care proceedings under the Children Act 1983 Act.  It has not been necessary to trigger the vast panoply of investigations, assessments, statements, meetings, reviews, etc. that public law care proceedings inevitably and rightly involve.”

Once again, whilst plainly satisfied that the inherent jurisdiction was the appropriate vehicle in the case before him, nowhere in Re Y (A Minor: Wardship) does Hayden J seek to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation. Indeed, it is clear that Hayden J was primarily considering the question of whether the inherent jurisdiction was specifically “appropriate to this extremely sensitive and sad situation”. Further, Hayden J expressly concludes his judgment by stating (emphasis added):

“[28] I should add that in this relatively short extempore judgment I do not seek to set out a paradigm approach for applications of this kind.  I am quite sure that there will be cases, particularly with younger children, perhaps when they are of necessity separated from their family, where only care proceedings under the Children Act will be appropriate.”

Within this context I cannot, for my part, see that the observations of Hayden J in LB Tower Hamlets v M and Others and Re Y (A Minor: Wardship),made when dealing with the risk of older children leaving the jurisdiction to travel to Syria, constitute general guidance to the effect that the inherent jurisdiction should be preferred to proceedings under Part IV of the Children Act 1989 in cases of alleged radicalisation. To the contrary, it would appear plain that Hayden J gave no such guidance and that his decisions with respect to the appropriate procedure were largely specific to the cases he was required to deal with. Within this context, as I have already observed, in Re Y (A Minor: Wardship) Hayden J expressly stated that he was not setting out a paradigm approach for cases of this nature.

Accordingly, any submission that the President endorsed guidance given by Hayden J in LB Tower Hamlets v M and Others and Re Y (A Minor: Wardship) in Re M [2015] EWHC 1433 (Fam) cannot be made out. The President did agree with Hayden J’s observation that the inherent jurisdiction was “particularly apposite” in cases where there was an actual or threatened removal from the jurisdiction (the President being concerned in Re M with an urgent application in respect of four children who had been removed from the jurisdiction by their parents with a view, it was alleged, to travelling to Syria). However, once again, the President’s decision in Re M does not seek to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation. Indeed, the President expressly stated at [32] that (emphasis added):

“This is not the occasion, and there is no need for me, to explore the range of circumstances in which it may be appropriate to make a child who is outside the jurisdiction a ward of court. I merely observe that cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Articles 2 or 3 of the Convention – risk to life or risk of degrading or inhuman treatment – is surely unproblematic. So wardship is surely an appropriate remedy, even if the child has already left the jurisdiction, in cases where the fear is that a child has been taken abroad for the purposes of a forced marriage (as in Re KR and Re B) or so that she can be subjected to female genital mutilation or (as here) where the fear is that a child has been taken abroad to travel to a dangerous war-zone.”

Within the context of recognising that wardship is an appropriate remedy, it is further apparent that the President recognised that the use of the inherent jurisdiction may be required where necessary to address discrete issues not capable of being dealt with under the 1989 Act pending consideration of all the available options for dealing with the case, observing (emphasis added):

“[28] In the circumstances it was clear to me that, in principle, wardship, if available, was the most appropriate mechanism for the court to adopt, at least until such time as the court was in a position, following the children's return to this country, to explore all the available options. As Hayden J said in the Tower Hamlets case (para 9), it is particularly apposite in cases such as these.”

In the circumstances, I am satisfied that, contrary to the view taken by the local authority, neither Hayden J nor the President have sought to lay down a general rule, or purport to give general guidance to the effect that the inherent jurisdiction should be used in preference to care proceedings in all cases of alleged radicalisation.

Section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that the Lord Chancellor “must secure that legal aid is made available in accordance with this Part”. Within this context, section 9(1) of the 2012 Act provides that civil legal aid is to be available to an individual if the Director has determined that the individual qualifies for legal aid. Section 11(1) of the 2012 Act provides that the Director must determine whether an individual qualifies for civil legal aid in accordance with the provisions of s 21 of the Act (financial resources) and the regulations made under s 11 of the Act. Section 21(1) of the 2012 Act provides that a person may not make a relevant determination that an individual qualifies under this Part for services unless the person has determined that the individual’s financial resources are such that the individual is eligible for the services and has not withdrawn the determination. The test for financial eligibility for legal aid (or “means test”) is governed by the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. The merits test is provided by the regulations is set out in the Civil Legal Aid (Merits Criteria) Regulations 2013.

Within the context of the foregoing statutory framework, care proceedings constitute “special Children Act 1989 cases” for the purposes of the Civil Legal Aid (Merits Criteria) Regulations 2013 r 2. Pursuant to rr 65(1) and 39(e) of those regulations, and r 5(1)(c) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, achild who is or would be the subject of the care or supervision order, that child’s parent or other person with parental responsibility for that child are entitled to non-means, non-merits tested legal aid in proceedings brought under s 31 of the Children Act 1989.

Proceedings in respect of children under the inherent jurisdiction of the High Court are defined as “public law children cases” for the purposes of the Civil Legal Aid (Merits Criteria) Regulations 2013 r 2. Pursuant to rr 65(1) and 39 of those regulations legal aid for proceedings in respect of children under the inherent jurisdiction of the High Court is means and merits tested.

Accordingly, as I have already noted at a number of points during the course of this judgment, the effect of the foregoing provisions in the context of the substantive application made by the local authority under the inherent jurisdiction in this case is that, in contradistinction to her position had the local authority issued proceedings under Part IV of the Children Act 1989, in which case the mother would have been entitled to non-means, non-merits tested legal aid, the mother is entitled only to means and merits tested legal aid.

Finally, in relation to the statutory legal aid scheme, s 19(1) of the 2012 Act provides for the promulgation of regulations (now the Criminal Legal Aid (General) Regulations 2013) authorising a court before which criminal proceedings take place or are to take place, to determine whether an individual qualifies for legal aid to fund representation for the purposes of criminal proceedings of a prescribed description. It is important, in the context of this judgment, to note that the provision permitting a court in criminal proceedings to determine whether an individual qualifies for legal representation is not replicated in the Act in respect of the civil courts (although, following Kings Lynn and West Norfolk BC v Bunning [2015] 1 WLR 531 the High Court may determine an application made to it for legal representation for a civil contempt, committal proceedings involving the determination of a criminal charge).

There is an extensive body of domestic and European jurisprudence with respect to the question of the extent to which Art 6 and Art 8 require the provision of legal representation. The current state of the law was summarised fully by the Court of Appeal in R v Gudanaviciene v Director of Legal Aid Case Worker [2015] 1 WLR 2247 following a comprehensive survey of the authorities. In R v Gudanaviciene v Director of Legal Aid Case Worker the Court of Appeal was required to consider the Lord Chancellor’s Exceptional Funding Guidance (Non-Inquests).

Having completed an exhaustive survey of the relevant European authorities, with respect to the demands of Art 6, Lord Dyson MR summarised the relevant principles to be drawn from the European case law as follows at [46]:

Within this context, in R v Gudanaviciene v Director of Legal Aid Case Worker the Master of the Rolls concluded in respect of Art 6 at [56] that (emphasis added):

“It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6.1 will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that article 6.1 does not require civil legal aid in most or even many cases. It all depends on the circumstances. It should be borne in mind that, although in the United Kingdom we have an adversarial system of litigation, judges can and do provide assistance to litigants in person.”

It is clear from this passage from R v Gudanaviciene v Director of Legal Aid Case Worker that the provision of public funding to meet the demands of Art 6 may legitimately be made subject to the application of any reasonable merits and means test. Within this context, I note that in Re K the Master of the Rolls observed that no party had contended in that case that the means test under the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 was contrary to the ECHR and that, plainly, it was not.

With respect to the extent to which a litigant’s rights under Art 8 require the provision of legal representation in proceedings, again in R v Gudanaviciene v Director of Legal Aid Case Worker the Court of Appeal carried out a comprehensive survey of the relevant of authorities. Having done so, the Master of the Rolls concluded that test set out in W v United Kingdom (1987) 10 EHRR 29 at [64] articulates the relevant law, namely:

“In the court's view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of article 8.”

Whilst noting that the Art 8 test (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from, and is broader than the Art 6 test (whether there has been effective access to court), in R v Gudanaviciene v Director of Legal Aid Case Worker the Master of the Rolls doubted there was any real difference between the formulations in the context with which the court was concerned, namely the provision of legal aid and observed as follows at [70]:

“It is true that the test for article 8 as it is stated in the Strasbourg jurisprudence (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from the test for article 6.1 (whether there has been effective access to court). The article 8 test is broader than the article 6.1 test, but in practice we doubt whether there is any real difference between the two formulations in the context with which we are concerned. There is nothing in the Strasbourg jurisprudence to which our attention has been drawn which suggests that the European Court of Human Rights considers that there is any such difference. In practice, the court's analysis of the facts in the case law does not seem to differ as between article 6.1 and article 8. This is not surprising. The focus of article 6.1 is to ensure a fair determination of civil rights and obligations by an independent and impartial tribunal. Article 8 does not dictate the form of the decision-making process that the state must put in place. But the focus of the procedural aspect of article 8 is to ensure the effective protection of an individual's article 8 rights. To summarise, in determining what constitutes effective access to the tribunal (article 6.1) and what constitutes sufficient involvement in a decision-making process (article 8), for present purposes the standards are in practice the same.”

In a limited number of contexts, the courts have interpreted existing statutory powers to make orders for financial provision in family proceedings between private individuals as providing the court with power to make costs funding orders.

In A v A (Maintenance Pending Suite: Payment of Legal Fees) [2001] 1 WLR 605 (comprehensively endorsed by Charles J in G v G (Maintenance Pending Suite: Costs) [2002] EWHC 306 (Fam), [2003] 2 FLR 71) Holman J interpreted the terms of s 22 of the Matrimonial Causes Act 1973 as being wide enough to permit an order making funding provision for legal costs within an order for maintenance pending suit. This power has as its foundation an express statutory power to award funds for a specific purpose. In Moses-Taiga v Taiga [2006] 1 FLR 1074 the Court of Appeal approved of what the court described as a ‘progressive interpretation’ of s 22 and considered that the construction was justified by reference to developments in respect of legal aid:

“In short, it seems to me that the progressive construction that the judges have adopted in the Family Division is both pragmatic and sensible. I accept that at the date of the advent of the Matrimonial Proceedings and Property Act 1970 (the 1970 Act) on 1 January 1971, no judge of the Family Division would have so construed s 22, particularly because one of the provisions of the 1970 Act was to remove the wife's agency of necessity and, with it, her opportunity to seek security for the costs of future litigation. But times have moved on. In the 1970s, a petitioner who had no assets and whose only prospect of affluence lay in the outcome of her application for ancillary relief, could easily find specialist solicitors who would pursue her claim on legal aid. That world has long since gone. In those days, a number of the leading specialist ancillary relief firms could, as a matter of public duty, take on an admittedly small number of legally-aided cases. Leading firms that would not take legally-aided clients invariably had an arrangement to pass such cases to highly competent firms that would do legal aid. All those support systems have disappeared. The modern reality is that the highly specialist solicitors and counsel necessary for the conduct of big money cases will no longer do publicly funded work. So, if the applicant has no assets, can give no security for borrowings, cannot guarantee an outcome that would enable her to enter into an arrangement such as that which was upheld in Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) and Others [1997] 2 FLR 116 then there is no source of funding of the litigation other than the approach to the court for a maintenance pending suit that will include a substantial element to fund the cost of the litigation. Obviously, in all these cases the dominant safeguard against injustice is the discretion of the trial judge and it will only be in cases that are demonstrated to be exceptional that the court will consider exercising the jurisdiction. But, I am in no doubt that in such exceptional cases, s 22 of the Matrimonial Causes Act 1973 can in modern times be construed to extend that far.”

In CF v KM (Financial Provision for Child: Costs of Legal Proceedings) [2011] 1 FLR 208 Charles J considered that the terms of Schedule 1 of the Children Act 1989 were wide enough to permit an order for a lump sum to fund legal costs in proceedings under s 8 of the Act. Again, this power has as its foundation an express statutory power to award funds for a specific purpose. I pause to note that in CF v KM (Financial Provision for Child: Costs of Legal Proceedings), in response to a submission that the order sought ran contrary to the statutory scheme created by the Child Support Act 1991, Charles J was satisfied that a power to make a lump sum order to fund legal costs in s 8 proceedings did not run contrary to the statutory regime under the Child Support Act 1991 because such funding was not within the types of expenditure to which the maintenance calculation under the 1991 Act or relevant regulations was directed.

There is no authority for the proposition that the court has a power under its inherent jurisdiction to make a costs funding order against a local authority in favour of a party who has been lawfully refused legal aid. However, there are two authorities that are of some assistance in determining whether the court should find that such a power exists and, if it does, whether it should be exercised.

The recent decision of the Court of Appeal in Re K, to which I have already referred,is of relevance. In Re K the Court of Appeal was required to consider an appeal against an order in private law proceedings directing that Her Majesty’s Courts and Tribunal Service (hereafter HMCTS) fund the costs of the appointment of legal representation for the father for the purposes of cross-examining a child who had made allegations of sexual abuse against him in circumstances where it appeared that the father did not satisfy the means test set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013.

At first instance, the court had concluded that, in an appropriate case, the court had power under s 31G(6) of the Matrimonial and Family Proceedings Act 1984 to direct that legal representation be provided at public expense where necessary and proportionate in order to safeguard a litigant’s rights under Arts 6 and 8. The Lord Chancellor appealed against that order on the principal ground that court had no power, whether by s 31G(6) of the 1984 Act or by any other enactment, to make an order that HMCTS fund legal representation outside the scheme in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Allowing the appeal, the court referred to the following principles of relevance to the question before this court.

First, the Master of the Rolls reiterated that it is a clear principle of statutory interpretation that a general power or duty cannot be used to circumvent a clear and detailed statutory code, referring to Crédit Suisse v Waltham Forest London Borough Council [1997] QB 362 at 374 in which Neill LJ held that where Parliament has made detailed provisions as to how certain statutory functions are to be carried out there is no scope for implying the existence of additional powers which lie wholly outside the relevant statutory code.

Second, the Master of the Rolls reiterated the principle that nothing less than clear, express and unambiguous language is effective to levy a tax and the principle that there must be clear statutory authority for public expenditure. Referring to the decision of the House of Lords in Holden & Co v Crown Prosecution Service (No 2) [1994] 1 AC 22, a case concerning whether the Court of Appeal had power to make orders for payment of costs out of central funds, in Re K the Master of the Rolls noted the following passages of the judgment of Lord Bridge (emphasis added):

“But still more important, in the present context, is the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and the expenditure of the public revenue. It is trite law that nothing less than clear, express and unambiguous language is effective to levy a tax. Scarcely less stringent is the requirement of clear statutory authority for public expenditure. As it was put by Viscount Haldane in Auckland Harbour Board v. The King [1924] A.C. 318, 326: 'it has been a principle of the British Constitution now for more than two centuries . . . that no money can be taken out of the consolidated Fund into which the revenues of the state have been paid, excepting under a distinct authorisation from Parliament itself.'”

And:

“I will not multiply examples, but I hope I have said enough to explain why I cannot attribute to the legislature any general willingness to provide the kind of publicly funded safety net which the judiciary would like to see in respect of costs necessarily and properly incurred by a litigant and not otherwise recoverable. It is for this reason that I find it impossible to say that whenever the legislature gives a right of appeal, whether in civil or criminal proceedings, in circumstances where a successful appellant may be unable to recover his costs from any other party, that affords a sufficient ground to imply a term enabling the court to order the costs to be paid out of public funds. The strictly limited range of the legislation expressly authorising payment of costs out of central funds in criminal proceedings no more lends itself to extension by judicial implication than does the equally limited range of legislation authorising payment of costs out of the legal aid fund in civil proceedings. Some general legislative provision authorising public funding of otherwise irrecoverable costs, either in all proceedings or in all appellate proceedings, would no doubt be an admirable step in the right direction which the judiciary would heartily applaud. But this does not, in my opinion, justify the courts in attempting to achieve some similar result by the piecemeal implication of terms giving a power to order payment of costs out of central funds in particular statutes, which can only lead to anomalies.”

I also note that, in concluding his judgment in Holden & Co v Crown Prosecution Service (No 2), Lord Bridge observed as follows:

“The courts must always resist the temptation to engage, under the guise of statutory interpretation, in what is really judicial legislation, but this is particularly important in a sensitive constitutional area, such as that with which we are here concerned, where we should be scrupulous to avoid trespassing on parliamentary ground. I would hold that jurisdiction to order payment of costs out of central funds cannot be held to have been conferred by implication on the courts by any of the statutory provisions which I have examined. Indeed, I find it difficult to visualise any statutory context in which such a jurisdiction could be conferred by anything less than clear express terms.”

In Re K the Master of the Rolls accepted the submission of Ms Whipple QC (as she then was) that these principles held good despite the coming into force of the Human Rights Act 1998.

Finally in Re K, the Master of Rolls examined the significance of s 19(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, observing that whilst the Act makes provision for a criminal court to determine whether an individual qualifies for legal representation at public expense, subject to the promulgation of necessary regulations, it makes no provision for a court in civil proceedings to determine whether an individual qualifies for legal representation at public expense, stating at [35] that (emphasis as in the original):

“This provision is clear in its scope and application. There is no corresponding provision in s 31G(6) of the 1985 Act or anywhere else I relation to civil proceedings. Section 19(3)(e) is an example of the kind of provision expressly authorising payment of public funds which Lord Bridge had in mind in the passage that I have cited from the Holden & Co case [1994] 1 AC 22. A yet further point is the fact that section 19(1) of LASPO provides that regulations may provide that a court in criminal proceedings may determine whether an individual qualifies for legal representation at public expense. There is no corresponding provision in relation to civil proceedings.”

Applying these principles, the Master of the Rolls concluded that it was not possible to interpret s 31G(6) of the 1984 Act (or s 1 of the Courts Act 2003) as giving power to the Lord Chancellor to provide funding for legal representation where such funding is not available under the detailed and comprehensive scheme set up under LASPO. The Master of the Rolls was clear that the court must respect the boundaries drawn by Parliament for public funding of legal representation.

I of course acknowledge that in Re K the Court of Appeal was dealing with the question of the proper interpretation of the scope of a statutory power, and the principles relevant thereto, rather than the proper scope of the inherent jurisdiction with respect to the funding of legal advice and representation. However, in the latter regard, some further assistance can be drawn from the decision of the Court of Appeal in Wicks v Wicks [1995] Fam 65.

In Wicks v Wicks the Court of Appeal reiterated the need for circumspection in respect of the proposition that the inherent jurisdiction of the court confers a general residual discretion to make any order necessary to ensure justice is done between the parties, particularly where the procedural power that is contended for under the inherent jurisdiction is, in fact, a power affecting substantive rights. In Wicks v Wicks Ward LJ noted the existence of powerful authority rejecting the contention that the inherent jurisdiction of the court confers a general discretion to make any order necessary to ensure that justice is done between the parties, referring to the decisions in Siskina (Owners of cargo lately on board) v Distos Compania Naviera S.A. [1979] AC 201 at 262 and A.J. Bekhor & Co. Ltd. V Bilton [1981] QB 923 at 942. Within this context, Ward LJ also reiterated the need to distinguish between procedural rights and substantive rights when considering the proper extent of the court’s inherent jurisdiction to make orders to ensure its own procedure is fair.

Having regard to these principles, Ward LJ rejected a submission that there was a power under the inherent jurisdiction to make an order for sale of the matrimonial home pending the determination of an application for ancillary relief much delayed by the husband’s litigation conduct, to ensure the wife and children, who were to be turned out of their rented accommodation, had a property in which to live pending the final hearing. Recognising this was “not a happy conclusion” in circumstances where the result arrived at by the judge met the demands of justice and fairness, Ward LJ held:

“The same reasoning applies here. Under the cloak of ensuring fair play, the judge was in fact making orders affecting the parties’ substantive rights and that must be governed by the general law and rules, not by resort to a wide judicial discretion derived from the court’s inherent jurisdiction.”

Notwithstanding the careful and comprehensive submissions of Mr Hale and Mr Barnes, applying the legal principles that I have articulated above, and after anxious deliberation, I have decided that the mother’s application for a costs funding order against the local authority must be dismissed. My reasons for so deciding are as follows.

I am satisfied that the inherent jurisdiction of the High Court does not give the court the power to require a local authority to incur expenditure to fund the legal representation of a litigant in wardship proceedings who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament.

Whilst Mr Hale and Mr Barnes sought to establish an equivalency between a party made the subject of a costs funding order under s 22 of the Matrimonial Causes Act 1973 or Sch 1 of the Children Act 1989 on the basis that the local authority has the status of a party to proceedings, that is not the complete picture. The local authority is a party to these proceedings. However, it is also a public authority funded by central government and local taxation and subject to strict statutory controls on its expenditure. In the circumstances, I cannot accept the submission that there is a simple equivalency between the position of parties who are amenable to costs funding orders in private law proceedings and a local authority in public law proceedings. Within the latter context, the order that the mother seeks is not only an order requiring one party to proceedings to fund the legal costs of another party, it is also an order requiring a public authority to incur expenditure, in this case to fund the legal representation of a litigant lawfully refused funding for legal representation by the public authority responsible for the provision of such funding. It is within this proper context that Mr Hale and Mr Barnes’ further submissions fall to be considered.

The argument that the court has power under its inherent jurisdiction to make an order requiring a local authority to fund a parent who otherwise lacks the means to fund representation because it is in the child’s best interests for the court to ensure the maximum efficacy of its quasi-inquisitorial jurisdiction to investigate and protect children’s welfare is superficially attractive legally, and has a greater moral attraction. Likewise, the argument that the court has power under its inherent jurisdiction to secure the fairness of its own procedure, and ensure that its procedure meets the imperatives of the Art 6 and Art 8 rights of the parent, by exercising its jurisdiction to make a costs funding order against a local authority in favour of a parent who otherwise lacks the means to fund representation is, again, superficially attractive legally and, again, is attractive morally. However, acknowledging the admirable industry and ingenuity of Mr Hale and Mr Barnes, I am satisfied that their arguments, regrettably, do indeed dissolve into a mirage when they are analysed against the well-established legal principles that must, I am satisfied, be applied by the court when considering the nature and extent of its jurisdiction to order a public authority to incur expenditure.

Those well-established principles, as articulated by the Master of the Rolls in Re K, are clear. Authority for public expenditure requires clear statutory authority, which authority must itself be in clear, express and unambiguous language. Within this context, a general power or duty cannot be used to circumvent a clear statutory code. Where Parliament has made detailed provisions as to how certain statutory functions in respect of legal funding are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the relevant statutory code. These principles hold true following the coming into force of the Human Rights Act 1998. Whilst they are articulated in the context of statutory interpretation, in circumstances where constitutional convention seeks to safeguard the control exercised by Parliament over the expenditure of public revenue I can see no reason why these principles should not apply when the court is considering the extent to which it has a power under the inherent jurisdiction to order a public authority to incur expenditure.

Mr Hale and Mr Barnes realistically accept that the court has no statutory power to require a local authority to incur expenditure to fund the legal representation of a litigant in family proceedings who has been lawfully refused legal aid and seek to proceed solely under the inherent jurisdiction. However, in the context of the principles I have summarised in the foregoing paragraph, it is important to highlight the significance of that very proper concession. The examples of cost funding jurisdictions relied on by Mr Hale and Mr Barnes as indicating the court can properly find a power under the inherent jurisdiction to make a costs funding order against the local authority each have as their foundation a clear and unambiguous statutory power to award funds for a specific purpose. The decisions in A v A (Maintenance Pending Suite: Payment of Legal Fees and CF v KM (Financial Provision for Child: Costs of Legal Proceedings), albeit examples of the use of statutory interpretation to enlarge existing statutory powers, are based an express statutory power to compel one party to litigation to make payment to the other. By contrast, the order the mother seeks compelling the local authority to fund her representation, and thus compelling a public authority to incur expenditure, is sought based on a power that is without any foundation in statute, clear, express and unambiguous or otherwise. This contradicts the principle that authority for public expenditure requires clear statutory authority, which authority must itself be in clear, express and unambiguous language.

Further, a power under the inherent jurisdiction to order a local authority to incur expenditure to fund the legal costs of another party as proposed by Mr Hale and Mr Barnes would have the effect of circumventing the clear statutory code governing public funding. Indeed, such a power under the inherent jurisdiction would circumvent the statutory code in the plainest sense of the word.

As Mr Oldham points out, Parliament has created a detailed and comprehensive statutory scheme to provide public funding for legal advice and representation, which scheme provides for the grant or refusal of legal aid to be determined by a public authority pursuant to detailed statutory provisions. If it made the order sought by Mr Hale and Mr Barnes, the court would be exercising a general power, entirely outside any statutory code, to order a public authority to incur expenditure to fund an individual’s legal advice and representation, which expenditure another public authority has lawfully decided should not be incurred pursuant to the detailed and comprehensive statutory scheme put in place by Parliament to regulate such funding. Whilst in CF v KM (Financial Provision for Child: Costs of Legal Proceedings) Charles J was satisfied that a discretion to make a lump sum order to fund legal costs in proceedings under s 8 of the Children Act 1989 did not run contrary to the statutory regime under the Child Support Act 1991, because such funding was not within the types of expenditure to which the maintenance calculation under the 1991 Act or relevant regulations was directed, in this case a discretion to order a local authority to fund legal costs of proceedings under the inherent jurisdiction in favour of a litigant lawfully denied legal aid would run directly contrary to the statutory regime because such funding is precisely within the type of expenditure contemplated by the 2012 Act.

Within the foregoing context, there is no suggestion in the statutory code that Parliament intended the civil courts to be able to make orders providing for funding for advice and representation outside the terms of the statutory scheme. Indeed, there is evidence that Parliament sought expressly to avoid such an outcome. As highlighted by the Master of the Rolls in Re K, s 19(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes provision for a court in criminal proceedings to determine whether an individual qualifies for legal representation at public expense, subject to the promulgation of necessary regulations, but makes no such provision for a civil court.

In the circumstances, in addition to contradicting the principle that authority for public expenditure requires clear statutory authority, I am satisfied that to make the order sought by the mother would contradict the principle that a general power cannot be used to circumvent a clear statutory code. In circumstances where the Legal Aid Agency has taken a lawful decision by reference to a lawful and comprehensive statutory scheme to refuse the mother’s application for legal aid, an order under the inherent jurisdiction of the court for public funding from an alternate public authority for the same purpose would plainly constitute an attempt to side-step a clear statutory code using a general power.

I am further satisfied that the mother’s application is not saved by the court’s inherent jurisdiction to ensure the efficacy and procedural fairness of its own process. In Wicks v Wicks the Court of Appeal made clear that the court cannot simply make any order under the inherent jurisdiction that is required to ensure that justice is done between the parties. Careful regard must be had to the nature of the order sought in this regard and, particularly to whether the order contemplated will affect the procedural rights of the parties or whether it will, in fact, affect the parties’ substantive rights. Within this context, whilst I accept that it may act to ensure greater procedural fairness through ensuring ‘equality of arms’, I am satisfied that an order compelling the local authority to incur expenditure to fund advice and legal representation is an order affecting substantive rights. In the circumstances, the question of whether the court has the power to make such an order must, to adopt the words of Ward LJ in Wicks v Wicks, be governed by the general law and rules, not by resort to a wide judicial discretion derived from the court’s inherent jurisdiction. This brings the court back to the well-established legal principles that must be applied by the court when considering the nature and extent of its jurisdiction to order a public authority to incur expenditure, the effect of which principles I have already considered.

Likewise, I am satisfied that the mother’s application is not rescued by recourse to Arts 6 and 8 in the manner contended for on behalf of the mother. Mr Hale and Mr Barnes argue that a power under the inherent jurisdiction to order a local authority to fund the legal costs of a person lawfully denied legal aid is necessary in circumstances where an absence of funding for legal representation is capableof amounting to a breach Art 6 or Art 8, which breach the court would be bound to remedy. However, I am satisfied that this submission constitutes an impermissible attempt to circumvent the jurisdiction of the Administrative Court in circumstances where Mr Hale and Mr Barnes are compelled to accept that a refusal of public funding based on the means test set out in the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 is lawful and does not amount to a breach of Arts 6 or 8.

That the principles enshrined in Arts 6 and 8 apply in these proceedings is not in doubt. As summarised above, Art 6 requires each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent and Art 8 requires those affected to be involved in the decision-making process to a degree sufficient, when the process is viewed as a whole, to provide them with the requisite protection of their interests. However, as the Master of the Rolls acknowledged in Re K, it is also clear that these principles do not prevent a State party from imposing a means test to decide in which cases the State must fund the advice and representation required to meet the imperatives of Art 6 and 8 and in which cases the individual must themselves fund the advice and representation required to do so.

Within this context, the question of whether the application of the relevant means test leaves a litigant in a position where his or her Art 6 and Art 8 rights are breached, and is hence is unlawful, unfair or unreasonable, is a question to be resolved by the Administrative Court by reference to the established principles of judicial review and not by the Family Division creating a new extra-statutory power under the inherent jurisdiction to remedy the contended for breaches by granting costs funding orders against local authorities. The mother’s submission that the creation of the latter jurisdiction is necessary to avoid breaches of Art 6 and Art 8 is an attempt to get around the fact that, as she accepts, she is not able to challenge the decision of the Legal Aid Agency in the Administrative Court and represents an impermissible attempt to open a collateral route of attack on a lawful decision. If the mother seeks to argue that the decision of the Legal Aid Agency to refuse public funding based on her means places her in a situation that breaches her Art 6 and her Art 8 rights, then her remedy is to judicially review the scheme on the basis that it is unreasonably parsimonious or unfairly discriminates against her as compared to other parents in her situation, not to seek to craft a new jurisdiction whereby a different public authority (the court) takes the same decision again in respect of a different source of public funds.

The fact that higher courts have recognised the possibility that the court may have jurisdiction to grant a costs funding order against a local authority, or other public authority, in the circumstances in which the mother finds herself does not make good the submission that the court has such a power. Indeed, in Q v Q [2014] EWFC 7 at [19] the President stated expressly stated that he was merely identifying possibilities, which possibilities may not withstand scrutiny and may “dissolve as a mirage”. With respect to the observations made by Baroness Hale in Re S (A Child) [2015] UKSC 20 at [33] relied on by Mr Hale and Mr Barnes, it is important to note that these comments were made in the context of an appeal concerning a costs order. The obiter comments did not concern costs funding orders and were made in the context of the court’s established power under rules of court to make costs orders. I do not read this passage as supporting the conclusion that the court has a power under its inherent jurisdiction to make a costs funding order against a local authority to fund the cost advice and representation for a party lawfully refused legal aid on the grounds of means.

Finally, whilst not determinative, I am reinforced in my conclusion that the court does not have power to require a local authority to incur expenditure to fund the legal representation of a litigant who has been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament by considerations of public policy. First, I am satisfied that a power under the inherent jurisdiction to compel a local authority to incur expenditure to fund advice and representation for litigants refused legal aid would be a power of extremely wide application. Not only would it be likely to be of application in cases of the type with which the President was concerned in Q v Q and in the not insignificant numbers of cases where findings are sought against family members in addition to the parents, I also accept Mr Oldham’s submission that it would likely also be of application in a wide range of other proceedings in which local authorities are involved in which litigants may not receive legal aid. Second, in deciding whether to make a costs funding order against a public authority pursuant to such a power, the court simply would not have available to it the wide range of information that would be required to be taken into account to ensure decisions were consistent and not contrary to principles of good administration.

These public policy factors serve to further illuminate the rationale for the legal principles governing the need for express statutory authority for public expenditure. Within this context, I am satisfied that the wide-ranging power to compel public expenditure to fund advice and representation contended for by Mr Hale and Mr Barnes is plainly a matter for Parliament and not this court. Even if, contrary to my conclusion above, the order sought by the mother in this case were to be characterised as purely procedural rather than substantive, I note the following the passage cited by Ward LJ in Wicks v Wicks from an article by Professor Dockray entitled The Inherent Jurisdiction to Regulate Civil Proceedings (1997) 113 LQR 120 at 131:

“…a matter which is procedural from the position of an applicant may be constitutional in the eyes of the respondent…Where procedure is as important as substance, procedural change requires the same degree of political accountability and economic and social foresight as reform of any equivalent rule of substantive law. Major innovations in procedural law should therefore be recognised as an institutional responsibility, not a matter on which individual judges should respond to the pleas of particular litigants. Procedural revolutions should appear first in statutes or Rules of Court, not in the law reports.”

For all the reasons I have set out, I am satisfied that the court cannot simply take for itself, under its broad inherent jurisdiction, a power to compel a local authority to incur expenditure to fund advice and representation of a litigant lawfully refused legal aid. It especially cannot do so when Parliament has made statutory provision for the type of funding sought and that funding has been lawfully refused pursuant to that statutory scheme, which scheme is itself lawful.

Whilst the inherent jurisdiction is theoretically unlimited, it is, in reality, constrained by proper limits. In London Borough of Redbridge v SA [2015] 3 WLR 1617 Hayden J observed as follows at [36]:

“The High Court's inherent powers are limited both by the constitutional role of the court and by its institutional capacity. The principle of separation of powers confers the remit of economic and social policy on the legislature and on the executive, not on the judiciary. It follows that the inherent jurisdiction cannot be regarded as a lawless void permitting judges to do whatever we consider to be right for children or the vulnerable, be that in a particular case or more generally (as contended for here) towards unspecified categories of children or vulnerable adults.”

In R v Central Independent Television Plc [1994] Fam 192 at 207-208 Waite LJ noted:

“The prerogative jurisdiction has shown a striking versatility, throughout its long history, in adapting its powers to the protective needs of children in all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have nevertheless found it necessary to set self-imposed limits upon its exercise for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages.”

Within this context, I am satisfied that the limits that are properly imposed on the exercise of the inherent jurisdiction for the sake of clarity and consistency, and of avoiding conflict between child welfare and other public advantages in this case are those that must be applied when considering the nature and extent of the court’s jurisdiction to order a public authority to incur expenditure. As Lord Sumption pointed out in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at [37], courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. Imposing the limits that I am satisfied must apply, I regret that I cannot accept the submission of Mr Hale and Mr Barnes that the inherent jurisdiction of this court is wide enough to encompass a power to order a public authority to incur expenditure in order to fund legal representation in wardship proceedings for a parent who does not qualify for legal aid because that parent does not satisfy the criteria for a grant of legal aid laid down by Parliament, notwithstanding the considerable benefits that would accrue to the parent, and to the child, from such funding.

As set out above, Mr Gupta and Mr Jones submit that proper resolution to the difficulty created in this case by the fact that the mother is not entitled to non-means, non-merits tested legal aid for the proceedings the local authority has chosen to issue in this case is for the court to revisit what the local authority has submitted is the guidance to the effect that the use of the inherent jurisdiction is to be preferred in cases of this nature.

For the reasons I have already articulated at Paragraphs 58 to 66 above, I am satisfied that the observations of Hayden J in LB Tower Hamlets v M and Others and Re Y (A Minor: Wardship), when dealing with the risk of older children leaving the jurisdiction to travel to Syria, do not constitute general guidance to the effect that the inherent jurisdiction should be preferred to proceedings under Part IV of the Children Act 1989 in cases of alleged radicalisation and that, within this context, any submission that the President endorsed guidance to this effect in Re M cannot be made out.

In circumstances where it is important that the court retain maximum flexibility within the confines of its available jurisdictions when dealing with these difficult and controversial cases, it is undesirable to set up detailed typologies into which are placed cases that should be brought under the inherent jurisdiction and cases that should be brought under Part IV of the Children Act 1989. Some cases will benefit from the former approach and some from the latter and some from a combination of the two.

There will plainly be cases where the inherent jurisdiction represents the most appropriate forum for dealing with cases in which allegations of radicalisation arise, at least at the outset. As demonstrated in LB Tower Hamlets v M and Others and Re Y (A Minor: Wardship), and without wishing to lay down any hard and fast rules, these are likely to be cases where the issue is limited to the risk of older children leaving the jurisdiction to travel to dangerous war zones or where, as in Re D, children have been removed from the jurisdiction for this purpose and must be recovered. In such cases the orders available under the inherent jurisdiction (and not available under the Children Act 1989) will be particularly apposite, including passport orders and orders in wardship that can be served on foreign States with a view to securing their co-operation where children have already been removed from the jurisdiction.

There will also plainly be cases where the advantages conferred by issuing care proceedings will merit their use being preferred, either from the outset or once initial relief has been secured under the inherent jurisdiction to address an urgent situation of actual or threatened removal. Again, without wishing to lay down any hard and fast rules, these are likely to be cases where the welfare issues go beyond threatened or actual removal and concern, for example, the welfare impact of parental beliefs, loyalties or ideologies or the welfare impact of extremist material present in the family home. In such cases, it is likely that proceedings brought under the comprehensive statutory code intended to address allegations of significant harm will be the most apt in circumstances where, in such proceedings, the child is an automatic respondent, where detailed and comprehensive multi-disciplinary guidance and conventional safeguarding procedures for addressing alleged harm to children (based on a large and carefully considered body of authority) can be brought to bear on the welfare issues that fall for consideration and where the actions of the local authority and the welfare of the child or children are subject to regular, statutory, review. Additional advantages accruing from the use of proceedings under Part IV of the Children Act 1989 may include the fact that local authorities and other professionals working with families are more familiar with care proceedings and the fact that, following the conclusion of state intervention, a child or young person may be eligible for continuing support under the leaving care provisions in the Children Act 1989.

Within this context, in addition to the advantages of using care proceedings outlined in the foregoing paragraph, there are also, it seems to me, two further, and principled arguments as to why care proceedings may be preferable.

First, cases of alleged radicalisation deal with what can be considered a new type of harm to children (although it has parallels with other types of harm). That alleged harm, which may justify State intervention in family life, occurs in a context that may also touch on complex and controversial arguments with respect to thought, conscience and religion. In these circumstances, there are powerful reasons for ensuring that the harm alleged is evaluated by reference to, and addressed within the statutory framework put in place by Parliament for regulating State intervention in families based on actual or likely significant harm rather than under the wide inherent jurisdiction of the court. This point is, in my view, reinforced by the fact that, as I set out above, the applicable criteria for granting final orders are not the same under the inherent jurisdiction and Part IV of the Children Act 1989, final orders under the latter requiring the court to be satisfied that the child is suffering or is likely to suffer significant harm attributable to the care given or likely to be given to him or her and that an order is in the child’s best interests, final orders under the former requiring the court to be satisfied that the order is in the child’s best interests, without the need to surmount any further threshold test for intervention with respect to significant harm.

Second, and within this context, where the issue before the court goes beyond the question of there being reasonable cause to believe the child is likely to suffer significant harm by reason of his or her threatened or actual removal from the jurisdiction, to the question of whether significant harm has occurred or is likely to occur and, if so, what orders should be made to ensure the child’s welfare in the context of that actual or threatened harm, then s 100 of the Children Act 1989 is unlikely to permit the use of the inherent jurisdiction given the terms of s 100(4)(a) in the context of the recognised need to maintain fidelity to the Children Act 1989 when considering whether to permit a local authority to invoke the inherent jurisdiction.

I am also satisfied that the factors to be taken into account when deciding whether to issue proceedings under the inherent jurisdiction or proceedings under Part IV of the Children Act 1989 in cases of this nature properly include the question of funding. Whilst it would be inappropriate to elect a jurisdiction solely on the basis of which set of proceedings will afford public funding for parents, the seminal importance of parents being legally advised and represented in cases leading to State intervention in family life will mean that the question of the availability of funding is a powerful factor falling for consideration when considering which form of proceedings will best meet the need to safeguard and promote the child’s welfare.

With respect to this case, as I made clear out at the outset of this judgment, the local authority indicated at the end of this hearing that were the court to dismiss the mother’s application for a costs funding order, and were the court to consider that what the local authority submits is the guidance given by this court on the use of the inherent jurisdiction in cases of alleged radicalisation should be revisited, it would be the local authority’s intention to issue care proceedings in this case. Whilst I have rejected the local authority’s view that guidance was given in the authorities it cited, and making clear that the court has no jurisdiction to compel a local authority to issue proceedings under Part IV of the Children Act 1989, having regard to the matters set out above it seems to me that this is a realistic position for the local authority to take. The issues in this case go beyond the question of the threatened or actual removal from the jurisdiction of older children and encompass questions of the welfare impact of the mother’s alleged beliefs and sympathies (which, I make clear, she denies) and the welfare impact of material alleged to be in the family home.

Finally, in circumstances where it is plain that there will remain a group of cases where wardship is the most appropriate vehicle to be utilised by the local authority in cases of alleged radicalisation, the issue of the lack of non-means and non-merits tested legal aid in such proceedings, notwithstanding that the same constitute an intervention by the State in family life based on allegations of harm, remains. For the reasons I have given, this court has no jurisdiction to order an alternate public authority to provide a parent who finds themselves in these circumstances with funding for advice and representation. In this regard, I repeat the observation, albeit made in a different legal context, of the Baker J in Re DE (A Child) [2014] EWFC 6 at [51]:

“[51] Finally, this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

For the reasons I have given I dismiss the mother’s application for a costs funding order against the local authority. It having indicated its intention to do so, upon the local authority issuing proceedings under Part IV of the Children Act 1989 I shall give case management directions timetabling that application to final hearing on the dates currently listed for the final hearing of these proceedings for determination alongside the same.

That is my judgment.