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Z (A Child) [2017] EWCA Civ 157

Appeal against case management order concerning which party should bear the cost of translating documents in public family law proceedings.

This is an appeal against the order of the Designated Family Judge for Reading, HHJ Oliver (sitting as a section 9 judge), for the purpose of confirming a case management order concerning the costs of translating documents served in family public law proceedings. His judgment was expressed as guidance for the purposes of local family courts.  The judge granted permission to appeal the order he made on the basis that the issue "raises a point not previously considered at a higher level".

First instance
The relevant case management order was first made on 25 June 2015, without full argument or formal adjudication and in accordance with the judge's 'conventional practice' to direct that translation costs be borne by the party relying upon the document/s concerned. Aware that on 14 August 2015, the Designated Family Judge for Essex and Suffolk, had ordered that translation costs be borne by the parents as the parties requiring the translation, (see [2015] EWFC B112), Reading Borough Council ('the LA'), applied to vary the 25 June 2015 case management order. The application was dismissed. The court maintained that the party 'relying on' or 'producing' the original document 'in support of their case' should bear the burden of its translation. 

Appeal
Accepting the distinction as to threshold and welfare decisions in public family law cases, Macur LJ noted that she well understood HHJ Oliver's instinctive view that the party which bears the burden of proof in establishing the need for state intervention should translate documents as may be necessary to establish their case, subject to the caveat that: "it is essential to focus on the forensic context… it is necessary for K to understand the case as a whole and to be aware of the important substance – not the fine details – of the various other witness statements, reports and assessments". (See Re L (Procedure: Bundles: Translation).)

However, the Court of Appeal found that the judge's rationale could not withstand those situations where documents are produced by one party, against interest, but in observance of the public interest of disclosure in proceedings concerning the welfare of a child, even at the threshold stage. These reports are not "for the benefit" of the party that produces it/them. In addition, other documents may support the local authority in one respect but the parent in another, ie: there may be a "shared forensic interest" as identified in Calderdale Metropolitan Borough Council v S and the Legal Services Commission [2005] 1 FLR 751.

The Court of Appeal referred to:

The Court of Appeal found that to deal with an issue of translation costs devoid of context does not connote a reasonable exercise of judicial discretion, and that whilst the promulgation of a court's usual practice on the question creates certainty and may save some court time it could also lead to unfair demands upon either public (local authority and legal aid) or private financial resources.

The order was set aside, on the basis that HHJ Oliver exercised his discretion on a wrong basis, but unable to exercise its own discretion, the Court of Appeal affirmed the order below.

Collaboration
The Court of Appeal took the opportunity to highlight that the application of Family Procedure Rules 2010, r 1.1 (2) and (3) requires collaboration between parties to avoid the prospect of time consuming satellite litigation on the issue of identification of which documents, or parts of the same, it is necessary to translate and in summary or full, together with a non-partisan appraisal of which party it would be reasonable to invite the judge to order to pay, or contribute towards, the costs of the same.

Summary by Emily Ward, barrister, Broadway House Chambers
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Case No: B4/2016/3670

Neutral Citation Number: [2017] EWCA Civ 157
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Family Court at Reading
His Honour Judge Oliver
RG15C00950

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28/03/2017

Before :

LORD JUSTICE LONGMORE
and
LADY JUSTICE MACUR

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In the matter of :

  
 Z (A Child) 
  

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Aidan Vine QC and Alex Forbes (instructed by the Local Authority) for the Appellant
Samantha Broadfoot QC for the Intervener

Hearing dates : Thursday 23 February

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Judgment
MACUR LJ :
1. This is an appeal against the order of His Honour Judge Oliver, Designated Family Judge for Reading but sitting as a Judge of the High Court for the purpose of confirming a case management order concerning the costs of translating documents served in family public law proceedings. His judgment is expressed as guidance for the purposes of local family courts.  He granted permission to appeal the order he made on the basis that the issue "raises a point not previously considered at a higher level."

2. The point will inevitably arise in family courts nationwide. The number of family cases necessitating translation services have increased.  The costs of translating documents in care proceedings has significant financial impact upon local authorities, privately funded respondent parties, and the Legal Aid Agency. 

3. The relevant case management order in the instant case was first made on 25 June 2015, apparently without full argument or formal adjudication and in accordance with the judge's "conventional practice" to direct that translation costs be borne by the party relying upon the document/s concerned. That is, it was ordered that Reading Borough Council:

"… shall be responsible for translating (and meeting the costs of such translation) any documents it serves on the parents in accordance with a court order or any other documents it provides to the parents, provided that the material to be translated is confined to that which it is necessary to translate in order to resolve the proceedings justly". 

4. Aware that on 14 August 2015, HHJ Lynne Roberts, Designated Family Judge for Essex and Suffolk, had ordered that translation costs be borne by the parents as the parties requiring the translation, (see In the matter of R (A Child) (Translation of Documents in Proceedings) [2015] EWFC B112), Reading Borough Council, applied to vary the case management order made by HHJ Oliver on 25 June, at a further case management hearing on 14 September 2015. Judgment was handed down on 23 August 2016 after the conclusion of the substantive proceedings.

5. His Honour Judge Oliver dismissed the local authority's application to vary the case management order concerning the costs of translating court documents. He maintained that the party 'relying on' or 'producing' the original document 'in support of their case' should bear the burden of its translation.

6. The Respondent parents to the care proceedings below were Polish nationals, and resided in Poland throughout the proceedings. We are told that neither read nor speak English.  They were represented by counsel and were legally aided. They are not represented in this appeal.

7. The child, D, aged 13 by the time the proceedings concluded, was represented by a solicitor briefed by her Children's Guardian and was legally aided. She is not represented at this appeal.

8.  His Honour Judge Oliver invited the Legal Aid Agency to file and serve written submissions on the issue as to translation costs.  The Legal Aid Agency did so on behalf of the Lord Chancellor. The Lord Chancellor has briefed Ms Samantha Broadfoot QC to "provide such assistance to the Court as she is able on matters affecting the Legal Aid Agency."

9. The appellant, Reading Borough Council, is represented by Mr Aidan Vine QC.

10. Neither Mr Vine nor Ms Broadfoot appeared in the court below and are unable to assist this court with the details of the case below save that it related to 'welfare issues' arising from the father's care of D when resident in England; her mother had not been part of the household.

11. Submissions on the issue of translation costs were made on behalf of all parties, and on behalf of the Lord Chancellor, which were not confined to the facts of the case. HHJ Oliver sat as a Deputy High Court Judge in order that his judgment, which differed in principle from that of HHJ Lynn Roberts, provided "a higher level of authority" for review by the Court of Appeal to "hopefully draw a line under this difficult issue". 

12. The judgment records the substance of the submissions in paragraphs 12 to 57. It is unnecessary to repeat them verbatim in this judgment. In summary, counsel for the local authority argued that: it is for a party's legal representative to determine which documents must be translated; translation costs are a proper disbursement on a legal aid certificate; and duplication of translation and associated costs can and should be avoided by prior liaison and collaboration between those parties who require the translation. Counsel for the parents and the child argued that the rules of natural justice, and the interests of the child, demanded that the party which brings the case against the parents must do so in a manner to enable them to understand it, and implicitly to participate in the proceedings; delay occasioned as a result of the legally aided parties seeking prior approval for the disbursements attributable to translation costs must be avoided. The Lord Chancellor submitted that the court should determine the issue dependent upon the facts and circumstances of the case; the Legal Aid Agency may fund the reasonable costs of documents translated from English to a foreign language, but not the translation of documents from a foreign language to English, which must be met by the party commissioning/relying upon the same; the fact that a party is legally aided is not determinative of where the costs lie. 

13. Reviewing the statutory provisions, guidance and jurisprudence to which he had been referred, HHJ Oliver concluded in paragraph 81 that:

"So, drawing all these points together, I see a clear structure for the costs of interpretation and translation:

a) Interpretation in court is the responsibility of HMCTS

b) Out of court interpretation falls to an individual party's public funding certificates

c) The cost of translating pre-proceeding documents falls to the local authority in any event (LAA Guidance on Remuneration of Expert Witnesses paragraph 6.21)

d) Only those documents which are necessary should be translated (Re L)

e) Which documents need to be translated is a matter which needs to be determined during the case (and probably done on a Section of the Bundle basis….)

f) The determination of which document should be translated has to be made by the judge

g) Once that decision has been made, the burden of paying for the translation of a document shall fall on the party who produces it."

14. Rightly, it seems to me, the focus of counsels submissions before this court have focused on (g) above. The judge's conclusions (a) and (b) are well founded in the judgment Re C (Care Proceedings: Parents with Disabilities) [2015] 1 FLR 52. The Legal Aid Agency Guidance as to payment for translation of any relevant/necessary documents created by the local authority prior to proceedings being issued states the obvious and underlies conclusion (c).  Conclusion (d) is decided by reference to Re L (Procedure: Bundles: Translation) [2015] 1 FLR 1417. Conclusions (e) and (f) involve practical application of necessary case management decisions. My only observation is that (f) is too broadly drawn; I consider it is implicit in paragraphs 69 to 71 inclusive of the judgment in the court below that disputes as to which documents are to be translated will be resolved by the judge in those situations in which there is disagreement between the parties, or likelihood that the Legal Aid Agency would not accept the disbursement to be reasonably incurred.

15. The judge's determination as to conclusion (g) was based on three points: benefit; the operation of the Standard Civil Contract seen as in accord with the European Directive on Legal Aid 13385/02; and, Article 6 of the European Convention on Human Rights

16. HHJ Oliver could not "see how a receiving party can benefit from evidence which almost certainly is contrary to their position. The benefit of the document provided has to lie with the party creating it as it seems to be self-evident that a party produces documents for its own benefit (or case) not for others (who may disagree with the contents…) …the proper meaning of the phrase 'for the benefit of' has to be 'relying on'."

17. The judge noted that the Standard Civil Contract provided that a party can only rely on a non-English document if a translation is provided to the court by the party relying upon it. "Why then, should the principle be different if a document needs to be translated into another language? This is the force behind the European Directive on Legal Aid". 

18. Article 6 was based on "equality of arms. Is it really fair and equal to expect any party facing serious allegations to have to organise the translation of documents before they have any idea of the case they are having to face? …Without understanding of the document and evidence a party is not able to engage with the proceedings or provide instructions…"

19.  Mr Vine QC acknowledges that a judge has a wide discretion in the apportionment of translation costs, which is a case management decision. (See Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] 1 FLR 1250) Nevertheless, he argues that this discretion must be exercised in the context of 'the overriding objective', that the case be dealt with 'justly', 'fairly' and 'in ways which were proportionate' and which encouraged the parties to 'co-operate with each other' and that any order in relation to costs be 'just'. (See Family Proceeding Rules 2010, r 1.1(1), (2), 1.2, 1.3, 1.4(1), (2) and 28.1.)

20. He submits that all stages of public law children' proceedings are essentially 'welfare based' and call for inquisitorial investigation rather than an adversarial process. "The judge's perspective of identifying the party 'relying on' or 'producing' the original document 'in support of their case' … simply did not recognise the much broader nature of the proceedings and the shared interest as to 'welfare outcome'."  Documents to be translated, and the determination of where the costs should lie, should therefore fall to be assessed on the basis of their utilisation in the inquisitorial arena.

21. Further, he states, the judge misunderstood the operation of the European Directive on Legal Aid 13385/02. EDLA Article 7(b) relates to  costs for translation of documents required by the court or competent authority and presented by the recipient which are necessary for the resolution of the case by legal aid granted in the Member State in which the court sits, whereas Article 8  obliged the Member State of origin to cover translation of the original application for legal aid and necessary supporting documents and taken together do not give rise to a general right to receive translated documents throughout proceedings.

22. Finally,  the judge failed to have regard to:  (i) the principle that ECHR Article 6 applied to the proceedings 'considered as a whole', (ii) the translation costs were recoverable on public funding certificates in respect of any court ordered translation costs, (iii) a translated solicitor's summary of the wider evidence would have been available, following Re L (Procedure: Bundles: Translation) [2015] 1 FLR 1417, and (iv) as the issue was allocation of translation costs, not whether necessary documents should be translated "it is questionable whether ECHR Art 6 was strictly engaged at all"

23. Therefore, he argues that HHJ Oliver did not exercise discretion but formulated a general presumption. That is, he did not have regard to all the circumstances of the case or to the disproportionate burden which would fall on the local authority as the party with primary responsibility for the preparation of the evidence. He contends that it is appropriate to direct the translation costs be met by the parents on their public funding certificates as the parties 'requiring' the same; this reflects the analogous approach in relation to expert costs in cases where expert evidence is required by only one party, eg JG v the Lord Chancellor and Others [2014] 2 FLR 1218. There is clear authority for the apportionment of the costs of experts, (Calderdale Metropolitan Borough Council v S and the Legal Services Commission [2005] 1 FLR 751.  

24. Consequently, he seeks that this Court set aside the case management order in relation to translation costs and substitute an order in the following terms:

(1) That paragraph 13 of the case management order dated 25 June 2015 be set aside.

(2) That the costs of translating documents the Local Authority serves on the parents in accordance with the court's orders and case management directions and any other documents it provides to the parents be met by the parents, provided that the translation of the same is 'necessary' to enable the proceedings to be resolved 'justly'.

(3) That the translation costs to be incurred in accordance with (2) are wholly necessary, reasonable and proportionate disbursements on the parents' public funding certificates.

Alternatively:

(1) …

(2) That the costs of translating documents the Local Authority serves on the parents in accordance with the court's orders and case management directions and any other documents it provides to the parents be apportioned between the parties.. (in such shares as this Court may determine).

(3) ….

25. Ms Broadfoot QC, submits that since the decision of which documents should be translated must depend on the "imperative necessity" to do so in order to dispose of the case fairly, payment of the costs of the translation should depend on the nature of the document and whether it is being translated into English for the Court or into another language so that instructions can be taken on it. She recognizes that in determining the issue,  the judge has a discretion which must be exercised in the light of all the circumstances of the case, but she does not adopt the argument that all decisions in family proceedings are essentially welfare based, and differentiates between decisions as to threshold which must be proved by the local authority as the gateway to prospective state intervention into family life, if not conceded by the parents /carers, and thereafter, if appropriate, the welfare outcome. That is an adversarial and inquisitorial process respectively.

26. She identifies the arrangements under which the Legal Aid Agency reimburses the service provider for disbursements in family cases that is contained in the Standard Civil Contract 2013 which is not a matter falling within the jurisdiction of the family court.  Further, the fact that a person is publicly funded is not permitted to affect "(a) the rights or liabilities of other parties to the proceedings, or (b) the principles on which the discretion of a court or tribunal is normally exercised": see s30(1) of Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012.

27. She agrees with Mr Vine that neither Directive 2003/8/EC nor Article 6 adds anything to the issues as framed.

28. She does not advance any argument in relation to the order for translation costs that should be made in the instant proceedings.

Discussion
29. I agree with Counsels submissions concerning the European Directive and Article 6; consequently, they are irrelevant to the point in issue.

30. I have no doubt that Ms Broadfoot is correct in distinguishing threshold and welfare decisions in public family law cases, as confirmed by the President in In the Matter of TG (A Child) [2013] 1 F.L.R. 1250, [2013] EWCA Civ 5, paragraph 70: 

"It is a truism that family proceedings are essentially inquisitorial.  But in certain respects they are inevitably and necessarily adversarial.  Human nature being what it is, parents will fight for their children; so in care cases where the State is threatening to remove children permanently from the care of their parents, the process will inevitably be highly charged.  But care cases are not merely adversarial in the colloquial sense; since the local authority has to establish 'threshold' they are also necessarily adversarial in the technical sense.  If, as typically, the local authority seeks to establish threshold on the basis of what it asserts are events which happened in the past, then the burden is on the local authority to prove on a balance on probabilities that those events did indeed happen."

31. In this respect I well understand the judge's instinctive view that the party which bears the burden of proof in establishing the need for state intervention should translate documents as may be necessary to establish their case, subject to the caveat that:

"it is essential to focus on the forensic context… it is necessary for K to    understand the case as a whole and to be aware of the important substance – not the fine details – of the various other witness statements, reports and assessments". (See Re L (Procedure: Bundles: Translation) above).

32. However, the judge's rationale cannot withstand those situations where documents are produced by one party, against interest, but in observance of the public interest of disclosure in proceedings concerning the welfare of a child, even at the threshold stage. These reports are not "for the benefit" of the party that produces it/ them. Other documents may support the local authority in one respect but the parent in another.  There may be a "shared forensic interest" as identified in Calderdale Metropolitan Borough Council v S and the Legal Services Commission [2005] 1 FLR 751. That is, it is impossible to state authoritatively that any documents produced by one party or another at whatever stage in the proceedings, will be in support of their case.

33. There is no ambiguity in the relevant statutory provisions. Section 51(1) of the Senior Courts Act 1981 provides that "Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in … (ba) the family court ... shall be in the discretion of the court". Section 51(3) "The court shall have full power to determine by whom and to what extent the costs are to be paid".

34. Section 26(1) of LASPO 2012 expressly incorporates 'reasonableness' into the treatment of costs, including those necessary in respect of translation, and s 30 (see above) ensures that the legal aid fund is not exempt from orders for costs. The Legal Aid Agency is unlikely to refuse to approve disbursement of costs for translation if indicated as 'necessary for a just resolution of the case' by the judge. (See:  R(T) v Legal Aid Agency [2013] 2 FLR 1315)

35. Black LJ, in JG v The Lord Chancellor and Others (see above) analysed previous pertinent authorities and concluded at paragraph 90 that:

"the court has a discretion as to what order is made as to the costs of instructing experts in family proceedings and that that discretion must be exercised bearing in mind all the circumstances of the particular case…The careful examination of Bodey J and Ryder J of the various factors in play in the Calderdale case and the Lambeth case shows the importance of tailoring the order to the facts…."

It is illogical to approach the costs of translation of documents as distinct from  expert evidence.

36. There can be no criticism of any judge who determines that, bearing in mind the circumstances of a particular case, the party bearing the burden of proof shall be responsible for translation costs of a relevant document.  The circumstances of other cases may reasonably inform a view that the party which requires the translation should bear the cost. Both of these views may be reasonable in the context of the case in hand, but cannot be considered as determinative of the issue across all cases.

37. To deal with an issue of translation costs devoid of context does not connote a reasonable exercise of judicial discretion. Whilst the promulgation of a court's usual practice on the question creates certainty and may save some court time it could also lead to unfair demands upon either public (local authority and legal aid) or private financial resources.

38. The application of Family Procedure Rules 2010, r 1.1 (2) and (3) require collaboration between parties to avoid the prospect of time consuming satellite litigation on the issue of identification of which documents, or parts of the same, it is necessary to translate and in summary or full, together with a non-partisan appraisal of which party it would be reasonable to invite the judge to order to pay, or contribute towards, the costs of the same.

Outcome:
39. I have no doubt that the judge erred in his approach to the issue of translation costs as indicated above. We are effectively invited to conclude that because the judge's approach was wrong, then so must be his order. This is a logical argument, and although the actual order may have been justified on the facts of the case, I would allow the appeal.

40. Neither counsel in the appeal was able to assist with the detail of the case, nor the substance of the documents itemised in a vaguely particularised schedule of translation costs, which amount to £14,119.75. If we allow the appeal and adopt either of Mr Vine's proposed costs order against the parent's legal aid certificates, we would be imposing a blanket policy equivalent to that of HHJ Oliver, of which approach the appellant complains.

41. This is an unsatisfactory and entirely avoidable situation.  The total amount of the translation costs is small compared with the costs of remitting this case to the lower court and the adverse impact upon the listing of other more pressing family court business. In these circumstances I would set aside the judge's order since he exercised his discretion on a wrong basis but, unable to exercise our own discretion, affirm the order below.

LONGMORE LJ
42. I agree.