One of the greatest concerns that has arisen since the reduction of legal aid being available in private law proceedings is:
What happens where the court feels that without expert evidence it is hampered in making the decision that is in the best interest of the child?
The position in the past has been that the legal aid agency will not pay any expert fees where any party does not qualify for legal aid. If the court wishes to have an expert and makes that order for an expert, the parties without legal aid according to legal aid agency must pay an equal share towards that expert’s fees.
However, in October last year a case came before the High Court, known as ‘JG v The Lord Chancellor.’ In this case solicitors had instructed an expert where parents didn’t have the benefit of legal aid. The court felt that it couldn’t make the decision regarding the child without it and directed that the expert should be totally funded by legal aid. The solicitors acted upon the direction of the court in accordance with its duty and incurred the full cost but the legal aid agency refused to pay it all. In the High Court the Judge said that position was fine and upheld the legal aid agency’s view that all parties should contribute unless there were exceptional reasons why they should not.
Because of its far reaching implications, not only for children, but also parents and judges who had to make decisions daily about children, the law society intervened in the case on appeal. In the appeal the court listened to the arguments from the Lord Chancellor that those who are not legal aided should pay a share of the expert’s fees- the law society argued that where the expert is instructed by the child alone, and the child has the benefit of legal aid, or if there should be sharing of costs, is for the Courts to decide applying the law to the specific facts.
The court of appeal accepted the argument and indicated that where a child is represented in court proceedings and has the benefit of legal aid that it would be perfectly within the court’s power to order that the legal aid agency bear the full costs of an experts report. If the court feels that a report is needed to deal with the case justly, proportionately, and that such a report is necessary, even if other parties such as parents benefited from it then they should be able to do this.
The court of appeal clearly understood that this could mean an increase in the use of experts in private law cases and an increase in the legal aid agency having to pay the bill. However, it means that legal aid agencies must now look at all the facts of a specific case to decide whether it should pay the fees in full. The court of appeal rejected the Lord Chancellors argument that the normal rule should state costs be apportioned equally between the parties.
What does this mean in practice?
This is a very important decision in terms of private law children cases. The court of appeal recognised that commenting ‘nobody can be in any doubt that the general question encapsulated a real issue of very considerable importance in private law proceedings relating to children in a wake of this severe restriction of public funding for those involved in such proceedings.’
It is likely where the court feels that there is need for expert evidence the court will consider whether in fact the child should be made a party to the proceedings and a children’s guardian appointed to consider the issue of expert involvement. After all, it should only be in the more complex cases that expert evidence is a necessity (one of the tests the court has to apply).
It may also be that parents who go before the court and feel that such expert evidence is needed should consider whether they ask the court to make their child/children a party to the proceedings.
No doubt there will be ongoing litigation in relation to this matter and it is not known yet whether the Lord Chancellor will seek to take this matter to the Supreme Court.
In this case the child was a party and was represented and had the benefit of legal aid, the other parties did not, so it is possible that this case will therefore only really have an impact on that small number of cases where the children need to be represented.
The Law Society has recognised that children’s voices need to be heard in cases and where necessary, if experts are needed, to ensure that getting the right decisions are not prevented by funding issues.
At The Family Law Company, our solicitors in Exeter and Plymouth also firmly believe that children and parents have the right to be heard and have specialists who deal daily with these issues.