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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W & Ors v Legal Services Commission [2000] EWCA Civ 225 (20 July 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/225.html
Cite as: [2000] EWCA Civ 225
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Case No: QGCOF 2000/0266/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (
CIVIL
DIVISION)
ON APPEAL FROM
THE
HON. MR. JUSTICE SCOTT BAKER
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20th
July 2000
THE PRESIDENT
LORD JUSTICE THORPE
and
MRS. JUSTICE SMITH
- - - - - - - - - - - - - - - - - - - - -
W and Others |
Appellant | |
- and - |
||
THE
LEGAL SERVICES COMMISSION |
Respondent |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr. R.Spon-Smith (instructed by Richmond Anderson Goudie of Flake Cottages, Cone Terrace, Chester-le-Street, Co. Durham DH3 3QH for the Appellant)
Mr. O. Wise (instructed by The Legal Services Commission, 85 Gray's Inn Road, London WC1X 8A for the Respondent)
Judgment
As Approved by the Court
Crown Copyright ©
The President: The applicants appeal from the decision of Scott Baker J. given on the 5th November of 1999. He refused to grant Judicial Review of the refusal by the Legal Aid Board to grant legal aid to three children who were parties to proceedings under Part IV of the Children Act 1989. The application for legal aid was made by their solicitor appointed by their guardian ad litem. Buxton LJ. on the 9th March 2000 gave permission to appeal.
The short facts are that the three children who are the applicants are 12, 10 and 6. On the 15th October 1996 care orders were made to the local authority. At that stage it was hoped that the children might be rehabilitated to their mother. In due course the local authority changed their care plan and considered it was in the children's best interest to be placed for adoption and that their contact with their mother should be brought to an end. The local authority therefore made an application under section 34(4), which states:
"On an application made by the authority or a child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned at paragraph (a)-(d) of sub-section 1 and named in the order"
The children were parties to the care proceedings and were represented by a guardian ad litem Mr. PA. On the application under Section 34(4) being made by the local authority the court again appointed Mr. PA as the childrens´ guardian ad litem. That appointment was by virtue of Section 41 of the Children Act which states:
"(1) For the purpose of any specified proceedings, the court shall
appoint a guardian ad litem for the child concerned unless satisfied that it is
not necessary to do so in order to safeguard his interests.
Sub-section (2). The guardian ad litem shall (a) be appointed in accordance
with the rules of court; and (b) be under a duty to safeguard the interests of
the child in the manner prescribed by such rules."
The Family Proceedings Rules 1991, which are for this purpose in identical terms to the Family Proceedings Courts(Children Act 1989) Rules set out in Rule 4.10 the appointment of the guardian. In Rule 4.11 the powers and duties of the guardian ad litem include under 4.11(2) to:
"(a) appoint a solicitor to represent the child unless such a solicitor has
already been appointed, and
(b) give such advice to the child as is appropriate having regard to his
understanding and, subject to Rule 4.12 (1)(a), instruct the solicitor
representing the child in all matters relevant to the interests of the child,
including possibilities for appeal arising in the course of the
proceedings."
By 4.11(4) the guardian ad litem shall unless excused by the court attend all
directions appointments in and hearings of the proceedings and advise the
court......... Rule 4.11 sets out a number of other duties to be carried out
by the guardian ad litem. By Rule 4.12(1):
"A solicitor appointed under Section 41(3) or in accordance with Rule
4.11(2)(a) shall represent the child -
(a) in accordance with instructions received from the guardian ad litem
(unless the solicitor considers, having taken into account the views of the
guardian ad litem and any direction of the court under rule 4.11(3), that the
child wishes to give instructions which conflict with those of the guardian ad
litem and that he is able, having regard to his understanding, to give such
instructions on his own behalf in which case he shall conduct the proceedings
in accordance with instructions received from the child), or ........."
By Rule 4.12(2):
"A solicitor appointed under section 41(3) or in accordance with rule
4.11(2)(a) shall serve and accept service of documents on behalf of the child
in accordance with rule 4.8(3)(a) and (4)(a), and, where the child has not
himself been served and has sufficient understanding, advise the child of the
contents of any documents so served."
4.14 deals with directions for the conduct of the proceedings.
4.15 deals with the timing of proceedings.
The result of Section 41 and either the Family Proceedings Rules or the Family
Proceedings Court Rules is that in every court with Children Act public law
jurisdiction, that is to say the Family Proceedings Court, the County Court,
and the High Court, the same procedure is in place. The effect of an
application under Section 34(4) is to trigger the appointment by the court of a
guardian ad litem who in turn is obliged to appoint a solicitor who with the
guardian ad litem represents the child for the purpose of the specified
proceedings. The appointment of a solicitor is not a matter of choice. Unless
the child wishes to instruct his own solicitors if he is of sufficient age and
maturity, the guardian and the solicitor together act for the child.
In the present case Mr. PA appointed the solicitor to act for all three
children. The solicitor made an application for legal aid. On the
23rd October 1998 the solicitor's application for legal aid on
behalf of the children was refused by the Legal Aid Area Manager. That refusal
was appealed to the Legal Aid Board area committee, and was refused on appeal.
On the 1st March 1999 legal aid was granted to the children to apply
for Judicial Review of the refusal of legal aid in the Section 34(4) contact
proceedings. The grounds of refusal by the Legal Aid Manager were, in respect
of each child:
"The reason(s) for this is that it appears unreasonable that you should receive
legal aid in the particular circumstances of this case. It is considered that
the grant of representation is not justified having regard to the issues of the
case, the benefit to be obtained or the need for you to be separately
represented as a party."
On appeal the solicitor for the children set out the merits of the appeal, that
the children's wishes might not be the same as those of the local authority,
that the children needed to have their own representative to put forward any
view different from that which the guardian might advance, that the case was
opposed and complex and involved a significant legal issue. The notice of
appeal by the solicitor did not indicate that the solicitor was obliged to be
appointed in accordance with the requirements of the 1991 Family Proceedings
Rules. In a letter dated 4th December 1998 from the Legal Aid Board
to the solicitor for the children the reasons for refusing the appeal were set
as:
"the reason for this is it appears unreasonable that you should receive legal
aid in the particular circumstances of the case. No need for separate
representation".
Mr. Claxton, who was Chairman of the Area Committee of the Legal Aid Board
which determined the appeals against the refusal of legal aid in respect of
these three children, said in his affidavit of 11th September 1999
at paragraphs 8 and 9:
"The view of the Area Committee was the question whether the mother should
continue to have contact would be resolved without legal representation for the
children provided under the Legal Aid Act 1988 and that the civil legal aid
merit test was not met. The local authority would act through its solicitor
and the mother, if she wished to pursue her application for contact to [the
three children], could be represented under a Legal Aid Certificate of
statutory means and merits test to be met by her. We could see no good reason
why the children should be separately represented under the Legal Aid Act 1988.
If the guardian ad litem required legal assistance to put forward any case
which might not otherwise be put there was insufficient justification for this
having regard to the civil legal aid merits test as there would be one or two
legal representatives from the other parties, and the guardian, who would
report independently on the children's futures.
Accordingly the unanimous decision of the Area Committee was that legal aid
should be rejected because it was unreasonable that the applicants should be
granted representation."
The Legal Aid Board was at the time bound by the provisions of the Legal Aid
Act 1988 and the regulations thereunder. Since April 2000 the Act and the
Legal Aid Board have been superseded by the Access to Justice Act 1999 section
11 and the Board has become the Legal Services Commission. We are however
still dealing with the legal position under the 1988 Act. Section 15 of the
1988 Act set out the duties of the Legal Aid Board in respect of applications
for legal aid as follows:
(1) representation.... shall be available to any person whose financial
resources are such as, under regulations, make him eligible for representation
under this Part."
(2 ) A person shall not be granted representation for the purposes of any
proceedings unless he satisfies the Board that he has reasonable grounds for
taking, defending or being a party to the proceedings."
(3 ) A person may be refused representation for the purposes of any proceedings
if, in the particular circumstances of the case, it appears to the Board (a)
unreasonable that he should be granted representation under this Part, or
........."
and regulations may prescribe the criteria determining any questions
arising under paragraph (b) above.
There were a number of amendments to the Legal Aid Act after the introduction
of the Children Act 1989. The effect of one of those amendments was that in a
case of conflict between the guardian ad litem and the child, if a child had a
solicitor representing him through legal aid the guardian was not eligible for
legal aid (Section 15(3A). By section 15(3B) representation and therefore
legal aid must be granted to a child in respect of whom an application is made
under the secure accommodation provisions in Section 25 of the Children Act.
Under Section 15(3C) representation and therefore legal aid must be granted to
a child to cover proceedings for an order under Section 31 (a care or
supervision order), an order under Section 43 (a child assessment order); an
order under Section 44 (an emergency protection order); or an order under
Section 45 (extension or discharge of an emergency protection order). That
representation extends to appeal in respect of any of those proceedings before
the court. The group of applications in respect of which there is a mandatory
grant of legal aid for representation does not include an application for leave
to terminate contact between the child and the parent, not even for the child.
An application under Section 34(4) is therefore an application in respect of
which the Legal Aid Board has a discretion whether to grant or to refuse legal
aid. In the present case the issue of financial resources available to the
child does not at this stage at least arise. It was not suggested by the Area
Committee or on this application that the children did not have reasonable
grounds for being parties to the section 34 proceedings and they were
automatically parties to them by virtue of the Children Act and the Family
Proceedings Rules. The only ground upon which the Legal Aid Board might
properly exercise its discretion not to grant legal aid was the issue of
reasonableness - if it appeared to the Board unreasonable that they should be
granted representation. It was on that ground that the Area Committee decided
not to grant legal aid.
Scott Baker J. in refusing relief under Judicial Review referred to an
amendment issued by the Legal Aid Board to its guidance in granting legal aid
under the merits test in May 1997. The guidance was as follows:
"The requirement of a guardian ad litem to appoint a solicitor in certain
specified public law cases (for which legal aid is available on a means and
merits tested basis) does not of itself mean that the civil legal aid merits
test is satisfied on an application for legal aid by a child. If the solicitor
is instructed by the guardian ad litem legal aid is only likely to be granted
where, having regard to the particular circumstances, legal representation
under a legal aid certificate is justified e.g. due to the matter being opposed
or involving a significant point of law."
It is clear that the Legal Aid Board was concerned about unnecessary or
duplicated representation as Scott Baker J. pointed out in his judgment. The
judge also had his attention drawn to the Guardian ad litem and Reporting
Officers (Panels) Regulations 1991 and in particular to regulation 9(1), which
states:
"Each local authority shall defray the reasonable expenses incurred in respect
of relevant proceedings by members of the panel established in respect of their
area and pay fees and allowances for members of such panels in respect of
relevant proceedings."
The judge formed the view that the local authority's obligation to defray the
reasonable expenses by members of the Guardian Ad Litem Panel included the
costs of legal representation on behalf of the child. He held that regulation
9(1) was sufficiently widely drawn to cover the costs of a solicitor
representing the child, and was an alternative source of funding.
Mr. Spon-Smith representing the children both before the judge and before this
Court pointed out firstly that regulation 9(1) had never been to his knowledge
relied upon as an alternative source of funding to legal aid. It was not part
of the reasoning of the Area Committee in the present case and it was first
raised in the present case as a defence to the application to move for judicial
review. Scott Baker J. said that the question of alternative source of funding
was:
"relevant to the issue of principle taken by Mr. Spon-Smith namely that because
the obligation to appoint a solicitor is in effect mandatory because there is
no other source of funding legal aid must be granted otherwise the appointment
of a solicitor would be rendered nugatory and Parliament's intention
frustrated. Because I believe there is this other source of funding I am
unable to accept Mr. Spon-Smith's argument. ........"
He turned to the question of rationality of the decision and said:
"It seems to me that the appointment of a solicitor and `having reasonable
grounds for taking, defending or being a party to proceedings' are two entirely
different things."
He said at page 10 of his judgment that the Legal Aid Board has to look at the
particular facts of this case as put before it and consider whether the
expenditure of public funds is justified:
"In my judgment the Area Committee was entirely justified in coming to its
conclusion that there was no good reason why separate representation should be
provided for the children under the Legal Aid Act 1988 I am certainly quite
unable to conclude the decision to refuse legal aid was irrational or
unreasonable on Wednesbury grounds. As I have already indicated, I do not
accept the argument that in principle legal aid should, in the absence of
private funds, be granted in every case. Accordingly the decision to refuse
legal aid was a perfectly lawful one."
On appeal to this Court Mr. Spon-Smith repeated the arguments that were set out
in the judgment of Scott Baker J. He argued that the requirements under
Section 41 of the Children Act and the Family Proceedings Rules obliged the
Legal Aid Board to grant legal aid for representation. He accepted however
that under the provisions of Section 15 the Legal Aid Board retained a
discretion whether to grant or refuse legal aid. He pointed to the clash
between the requirements under the Family Proceedings Rules and the
requirements under the Legal Aid Act.
Almost all the important areas in which one would expect that a child ought to
be represented in court in a public law case are covered by the mandatory grant
of representation by way of legal aid in Section 15. It does lead one to
wonder whether the significance of contact proceedings in public law cases has
been overlooked. In particular Section 34(4) gives the court power to bring a
relationship between a child and the natural family permanently to an end
usually with a view to adoption. This termination of contact is a
determinative point in a child's life. We were told prior to the May 1997
guidance that legal aid was routinely granted to solicitors appointed by
guardians ad litem on behalf of children. In my view the May 1997 guidance was
not as helpful as it might have been, bearing in mind that it pays lip service
only to the requirement in the 1991 Rules that a solicitor shall be appointed.
It follows from the 1991 Rules that someone has to pay. The use of Regulation
9(1) was not suggested in the May 1997 guidance. The question has to be asked,
if the guardian ad litem is under an obligation to appoint a solicitor by the
Rules and there is no alternative funding unless the child is rich (which is
improbable in these sort of cases) whether the solicitor is to be funded by
legal aid or not at all. That problem is not raised in the guidance. On the
contrary the legal aid managers and area committees appear to have been
reminded to be more stringent in permitting multiple representation of parties
in any case where they have a discretion. It is clear to me therefore in the
present case that both the Legal Aid Manager and the Area Committee were
focusing on multiple representation and the potential waste of public money and
were ignoring the requirement of the guardian to appoint a solicitor. The
failure to take account of the requirement to appoint a solicitor was
understandable in the light of the notice of appeal to the Area Committee which
concentrated upon the merits of the particular case and did not alert the Area
Committee to the special position of the guardian and the solicitor under the
Rules. I have considerable sympathy with the Area Committee for not
considering that matter even though we are told that the particular committee
which sat on this matter was experienced in family matters. If this had been a
question of relevant facts which the solicitor for the children had failed to
put to the Area Committee I should have probably come to the view that the Area
Committee could not be faulted in their decision making process by the lack of
information. The failure of the Area Committee to take into account the
special legal provisions for the proper representation of children in Part IV
proceedings is however in my view an entirely different matter. The mandatory
appointment of a solicitor for the children is a highly relevant consideration
which, if it had been put into the exercise of discretion by the Area
Committee, was likely to have had a considerable effect upon their decision.
Indeed I would go so far as to say that their decision might well have gone the
other way. We are told that for the future The Legal Services Commission will
not take alternative sources of funding into account in cases of this sort. It
would appear that alternative sources of funding was not taken into account by
the Legal Aid Board in the past and the question as to whether Regulation 9(1)
should cover these costs was raised by Counsel only by way of reply to the
application to move for Judicial Review. In the circumstances I do not think
that the issue of alternative funding is of any real relevance to the decision
on Judicial Review. I am inclined to the view that the Judge's interpretation
of Regulation 9(1) was right and the wording is wide enough to include legal
costs as well as the expenses and fees of the guardian ad litem. Even if it
is wide enough it is a grey area as Mr. Wise accepted on behalf of the Legal
Aid Board. The judge was however in my view unduly influenced in the
conclusion to which he came by the possibility of alternative funding through
Regulation 9(1).
Insofar as there is a clash between the Family Proceedings Rules and the Legal
Aid Act Section 15, Mr. Wise has submitted that the Act must take priority. In
my view he is right. The Legal Aid Board retains a discretion whether to grant
or to refuse legal aid to the solicitor acting on behalf of children in a
Section 34(4) application but in reality in exercising that discretion the
Board ought to have taken into consideration the requirement to appoint a
solicitor and that the possibility of multiple representation was recognised by
the Family Proceedings Rules to be a feature where children were parties.
In my view, a Legal Aid Manager or Area Committee ought to have been very slow
to find that there should be no grant of legal aid at all. There might be
special circumstances in which to grant legal aid would not be appropriate
though for the moment I find it difficult to visualise what those circumstances
might be. I can however foresee that it would be entirely appropriate for the
recipient of legal aid, that is to say the child, to be put on terms. Anyone
in receipt of legal aid, even a child, has to come within the legal aid
statutory structure and subject to terms and conditions so long as they are
suitable. In a case where the merits of separate representation are not strong
and where in particular as in this case the guardian's view was the same as the
local authority it would be entirely appropriate for the legal aid certificate
to impose conditions or restrictions. I have in mind for instance a limit on
the amount of money to be expended, a limit on the number of steps before
further approval is sought. But entirely to deny legal aid on the ground of
multiple representation does not seem to be in my view in accordance with the
philosophy of the Children Act legislation as expressed in the Act and the
Rules. I, therefore, consider that the failure of the Area Committee to
consider the position of the guardian and the obligatory appointment of the
solicitor was so fundamental a flaw in their exercise of discretion as to
vitiate their decision.
I agree however with Thorpe LJ, whose judgment I have read in draft, that the
Court exercising its power under section 41(1) should examine carefully whether
in the particular case a guardian is necessary to safeguard the interests of
the child. The applications under section 34(4) were made in September 1998.
We are however told that as a result of these Judicial Review proceedings, the
important decision as to the long term future of three children of 12, 10 and 6
has been deferred again and again and there has not yet been a decision on any
one of these three children. Although the guardian ad litem might well have
expected to have been granted legal aid and to have the children whom he
represents legally represented, on the facts of this case, the failure to have
such legal representation was not and ought not to have been treated as an
absolute bar to making decisions about the long term future of these children.
In particular B is only 6 and a delay of not far short of two years in taking
proper steps to deal with him is a particularly sad outcome of the present
proceedings.
It falls to us to consider what relief if any should be granted. Although we
are told that the superseding of the Legal Aid Board by the Legal Services
Commission would not prevent this matter being sent back for further
consideration by an Area Committee, the state of affairs in relation to the
children has got to such a point that to remit the applications for a
certificate for re-consideration by the Area Committee would add a delay that
would be in my view incompatible with the welfare of the children. On the
relatively simple facts of this case a judge would probably be able without
difficulty to make a decision about whether to terminate the contact between
the mother and these children without the attendance of solicitors for the
children. The guardian ad litem could give the relevant evidence. If the facts
have changed and legal representation is necessary a new application could be
made for legal aid. In the case of B we understand that an application to free
for adoption has been made and no doubt an application for legal aid will be
made, or has already been made on his behalf. In the freeing application the
question of any future contact to his mother would be likely to be raised and
to be a relevant consideration.
By coming to this conclusion, I do not wish it to be understood that the
decision of this court not to grant relief is to be taken as a precedent for a
future refusal to grant legal aid nor that a child litigant should be deprived
of the legal representation which he or she ought to receive. But section 1(2)
of the Children Act states that delay is detrimental to the welfare of the
child. That welfare demands that this part of the case be concluded as quickly
as possible. At this stage the requirement for the Court to deal with the
contact to the mother is now of greater importance than the guardian having
the assistance of a solicitor on behalf of the children.
It does appear that the new criteria to be applied by the Legal Services
Commission include very similar provisions to those in Section 15. It would be
highly desirable for the Legal Services Commission and the Family Policy Unit
of the Lord Chancellor's Department to look at section 34 applications and
their omission from the mandatory requirements elsewhere in section 15. It does
not appear to me to be desirable that there should continue to be this uneasy
tension between the obligation of the guardian to appoint a solicitor and the
exercise of discretion by the Legal Services Commission as to whether legal aid
should be provided to pay for the solicitor so appointed.
I would therefore hold that the decision of the Area Committee of the Legal Aid
Board cannot stand but in the special circumstances of this case the matter
should not be remitted to the Area Committee for a reconsideration of the
application for legal aid and there should be no relief on the application to
move for Judicial Review.
Lord Justice Thorpe: I also conclude that this application should be
dismissed although it has served to draw attention to the inter-relationship
between the Children Act 1989, and regulations made thereunder, and the Legal
Aid Act 1988, as amended to accommodate the provisions of the Children Act
1989.
There can be little doubt that the legislative scheme of the Children Act 1989
was to ensure that in public law proceedings children whose future the court
surveyed would be joined as parties to the proceedings and would have the
benefit of both a guardian ad litem and a solicitor, who might in turn brief
counsel. Of course if the children were to be joined then, being under a
disability, they would require a guardian ad litem in accordance with the
ordinary principles of litigation requiring protection for those under
disability. But in reality the guardian ad litem was to be more than a
litigation guardian, being drawn from the panel, most if not all of whom would
be qualified and independent social workers. This legislative objective was of
course achieved by the provisions of section 41 of the Children Act 1989 and
Regulations 4.10 and 4.12 of the Family Proceedings Rules 1991. There can
equally be little doubt that the legislative intention was that the legal aid
fund would meet the legal costs of the separate representation of children
involved in public law proceedings. The amendments to section 15 of the Legal
Aid Act 1988 required the grant of legal aid in most categories of public law
proceedings, although not in the determination of applications under section
34(4) of the Children Act 1989. Section 34 is a fundamental section of the
statute in that it gives expression to the legislative intention to impose upon
local authorities a duty to ensure that children in care maintain contact with
family members. It seems to me therefore an open question as to whether the
omission of section 34(4) applications from the categories of Children Act
proceedings in which the grant of legal aid was to be mandatory was intentional
or accidental. However it is that omission that gives rise to the awkward
inter-relationship between the two statutes.
For at first sight it is difficult to reconcile the two statutory schemes. One
requires the appointment of a guardian in almost all public law proceedings and
equally requires that guardian to appoint a solicitor forthwith. Once
appointed the solicitor has the obligation of carrying through the proceedings
to their completion, ordinarily acting on the instructions of the guardian.
How was that to be funded other than by the Legal Aid Board? But equally how
was the Legal Aid Board to apply the triple test, including the all important
test of reasonableness, unless in the exercise of an independent discretion? I
believe that the solution to the conundrum can be found in a joint or several
application of three possible approaches.
First the court itself should exercise a more critical judgment in determining
in accordance with the provisions of section 41(1) of the Children Act 1989
whether the appointment of a guardian is indeed `necessary to do so in order to
safeguard his interests'. Of course the Legal Aid Board is unlikely to be able
to make submissions on that question and I am of the opinion that it is
accordingly incumbent upon the court to give careful consideration to the
preservation of public funds in exercising its discretion under section
41(1).
Second I am of the opinion that upon the exercise of its discretion as to
whether or not the grant of legal aid is reasonable to enable the child to be
heard upon the determination of an application for the termination of contact,
the Board, and any area committee to which a Board decision is appealed, must
give particular weight to the consideration that the joinder of the child as a
consequence of the court's decision to appoint a guardian ad litem and the
subsequent appointment of a solicitor are not acts of will but acts in
compliance with statutory requirements.
Third I am of the opinion that once the child becomes a legally aided litigant
as a consequence of a grant they must be subject to the constraints and
restrictions of the regime as well as any other litigant. Thus it seems to me
that it is open to the Board or Commission to impose conditions and limitations
in relation to the conduct of the litigation by the guardian ad litem on behalf
of the child. This point was developed by my lady in argument and I am in
complete agreement with it. In appropriate circumstances I do not see why the
grant of legal aid to the child should not be limited to, say, obtaining
counsel's opinion on the merits or, say, not to extend beyond interlocutory
steps without express extension. By the more extensive and creative use of
these three mechanisms it seems to me lies the potential to harmonise the
inter-relationship between the seemingly conflicting statutory provisions.
Turning now to Regulation 9 of the Guardians Ad Litem and Reporting Officers
(Panels) Regulations 1991, there can be little doubt that they were certainly
not envisaged as a mechanism for loading the guardian's litigation costs upon
the local authority. I am in no doubt that they were intended to enable the
guardian to recover from the relevant local authority a proper fee for the
extensive work in each individual case, certain expenses, such as motoring
expenses, which might be recoverable by reference to specific allowances, and
proper disbursements recoverable under the heading of expenses. The contention
that the litigation costs of the solicitor acting for the children within the
litigation might be recoverable as such expenses is a contention that was not
raised prior to the hearing before Scott Baker J and it has subsequently been
relegated by the Board's statement in this court that they do not intend to
advance this alternative funding contention under the replacement regime that
came into force in April 2000. To that extent it could be said to be no longer
an issue in this appeal. However since Scott Baker J expressed the firm
conclusion that the Board was entitled to succeed on this alternative ground I
consider it desirable to express my reservations. Whilst it must be admitted
that Regulation 9 is drafted in wide terms, I prefer Mr Spon-Smith's submission
that `reasonable expenses incurred in respect of relevant proceedings by
members of the panel' mean precisely that and no more. The party to the
litigation is the child. It is he who is in the client relationship with the
solicitor. It cannot be said that the costs of the action are expenses
directly incurred by the guardian, although of course it is upon the guardian's
instructions that the solicitor acts. I would limit the construction of
`reasonable expenses' to those directly incurred by the guardian, by which I
mean those expenses for which he is contractually liable to some third party.
Mr Spon-Smith has drawn attention to the critical comment on Scott Baker J's
conclusion from Mr Richard White in the New Law Journal. There is obvious
force in his observation that it would be highly undesirable if the local
authority, almost invariably the applicant for the power to terminate or
curtail family relationships, should at the same time be discharging not only
its own litigation costs but also the costs of what may in many instances be an
opposing party. Although there may be no actual perversion of justice it is
not difficult for the suspicious mind to perceive unfairness in such an
arrangement. I would therefore hope that the alternative funding contention
will not be resurrected in future litigation.
It seems that the Board's decision to refuse legal aid in the present case was
either inspired or encouraged by the policy statement of May 1997. Whilst I
have every sympathy for the Board's determination to curtail wherever possible
the huge financial burden of funding public law proceedings, I am of the
opinion that the issue of the policy statement of May 1997 was at the least
unduly controversial. The statement is too obvious an encouragement to
concentrate on some sort of assessment of outcome without an equal emphasis on
the balancing consideration that the application is compelled by a statutory
scheme. I am in no doubt that the issue of such a policy statement in the
heady days of the commencement of the Children Act 1989 would have been
unthinkable. I would hope that it should prove possible to devise a less
controversial and more balanced statement of policy in reaction to the
judgments in the present appeal.
Mrs. Justice Smith: I also dismiss the application.
Order: Application dismissed. No order for costs.
(Order does not form part of the approved judgment.)