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President delivers guidance on seeking prior approval by LSC of expert evidence in family proceedings

Applications for prior authority have risen from 216 in November 2011 to 1840 in March 2012

In A Local Authority v DS [2012] EWHC 1442 (Fam), the President of the Family Division, Sir Nicholas Wall, has given guidance concerning the prior authority by the Legal Services Commission (LSC) in relation to expert evidence.

The case itself concerned the delay and ultimate refusal by the LSC to grant prior authority for the instruction of an independent social worker to perform a parenting and risk assessment of parents. The ISW was requesting a rate of £50 per hour, whereas the current rate set by the Community Legal Services (Funding)(Amendment No 2) Order 2011 restricts payment to an ISW working out of London at £30 per hour. 

The President said that it was for the judge to decide whether particular expert evidence was required. The purpose of the President's guidance was to speed up the process of experts being properly instructed, should the court direct it. He did, however, point out that if a lawyer takes the view that the LSC has acted with Wednesbury unreasonableness, or their decision can be struck down for any other public law reason, then the remedy is judicial review.

In his guidance, the President states that the words "the cost thereof is deemed a necessary and proper disbursement on [a named individual's] public funding certificate" should no longer be used, as they do not bind the LSC. Rule 25.1 of the Family Procedure Rules 2010 will shortly be amended to insert "necessary" for "reasonably required".  If the court is persuaded that expert evidence is necessary, it should say so in a judgment or preamble of an order and should identify the issues on which the expert should report. Should the LSC refuse to grant prior authority, then it should likewise set out its reasons accordingly. He stresses in conclusion that courts should familiarise themselves with Part 25 of the FPR and Practice Direction 25A, in particular paragraph 4.3(h) (soon to be revised) which provides that anyone wishing to instruct an expert needs to explain to the court why the expert evidence proposed cannot be given by the Social Services undertaking a core assessment or by the Children's Guardian in accordance with their respective statutory duties.

The President also highlights the need for courts to keep to the strict timetables set down by the PLO, and that the instruction of an expert should not, unless it is avoidable, hold up the progress of a case. He also points out that the LSC is under extreme pressure due to the number of applications for prior authority which have risen from 216 in November 2011 to 1840 in March 2012. 

For a much fuller summary of this judgment, written by Chris McWatters of Garden Court Chambers, and for the judgment itself, please click here.
Family Law Week will be publishing next week an article by Chris McWatters about the implications of this judgment and undertaking judicial review proceedings against the LSC following refusal of authority.