The Court of Appeal has ordered the government to fully fund the cost of an expert witness who had been consulted during a family court case.
In JG v the Lord Chancellor & Others, the father of an unnamed family made an application to see his daughter under Section 8 of the Children Act 1989. This covers ‘residence, contact and other orders with respect to children’. Both parents were unrepresented, acting as litigants in person in the subsequent court proceedings.
After a time the child herself was made a party to the proceedings, where she was to be represented by a legal guardian and a solicitor. She received a public funding certificate, setting out her entitlement to legal aid.
The guardian suggested to the girl’s solicitors that a psychological assessment of the family dynamics might be appropriate. An expert was identified and a judge agreed to their appointment. An order stated that:
“d) The [guardian] shall take the lead in instructing the expert and shall apply for further directions if there are any difficulties in complying with this paragraph.
e) The cost of the report to be funded by the child, the court considering it to be a reasonable and necessary disbursement to be incurred under the terms of her public funding certificate.”
In 2010, the psychotherapist completed their report and sent an invoice for £12,000 to the child’s solicitors, who then passed this on to Legal Services Commission (LSC), which distributes legal aid funding. They, however, insisted the cost of settling the bill should be divided between the parties to the proceedings. Therefore the unrepresented parents would have to pay half.
At a subsequent court hearing, Mr Justice Ryder – now Lord Justice Ryder – rejected a challenge to this decision. He said there was insufficient evidence to suggest that the parties could legitimately expect the LSC to pay the bill in full and that it had not been clearly established that they had committed themselves to doing so in any case.
But at a subsequent hearing in the Court of Appeal, Lady Justice Black stated that, after a careful examination of the evidence, she had “reached a conclusion which differs from that reached by Ryder J.”
“It may be imperfect but so are all the possible solutions to this case.”
The judge explained:
“…it is tolerably clear that the idea of an expert was the guardian’s and that what was before the district judge at the directions appointment was her proposal that the expert should be instructed.”
“…the proper interpretation of what happened…was in fact that [the earlier judge] was completing the process instigated by the guardian…and authorised by him then and that the report was, in substance, ordered at her request in order to address issues that needed to be addressed in the interests of the child. As I have said earlier, the fact that other parties may have an input into the report does not convert it into their report or necessarily render them liable for the costs of it. What matters, in my view, is the substance of the transaction.”
Consequently, the appeal was allowed and the Court of Appeal declared that the Commission’s refusal to pay the therapist’s bill in full had been unlawful.