Children: Public Law Update (June 2012)
John Tughan, barrister, 4 Paper Buildings, reviews some recent important judgments concerning children public law matters.
- The President's recent guidance relating to the LSC and prior authority to instruct an expert;
- The continuing debate as to the import of paragraph 49 of Re S-B, as substantially added to by McFarlane LJ;
- The recent judgment of Theis J in relation to rickets.
In A Local Authority v DS  EWHC 1442 (Fam) the President gave important guidance relating to the inter-relationship of the parties to proceedings, the court and the LSC.
The situation facing the President in this case is a common one and practitioners in this field will be familiar with the issues thrown up by the funding of the instruction of experts.
The instruction of the Independent Social Worker was ordered and the order stated that the
"...costs of the parenting assessment shall be shared by the local authority, the mother and the father (i.e. one third each) the court deeming this to be a reasonable and necessary disbursement on the certificates of the publicly funded parties….."
which practitioners will recognise is a widely used and very common formula for such order. After months of correspondence the LSC explained, to the Court, that they would not agree prior authority for the ISW as her rates were above the statutory rate set by Schedule 5 to the Community Legal Services (Funding) Order 2007.
The President gave the following guidance:
i) The words "the cost thereof is deemed to be a necessary and proper disbursement on [a named individual's] public funding certificate" (or words to equivalent effect) should no longer be used when the court orders a report from an expert. The words do not bind the LSC or, for that matter anybody else. In addition, there must be doubt about the court's power to make such an order. It is, in my judgment, far better to follow the words of the Regulations, particularly if the court is being asked to approve rates in excess of those allowed by the Funding Order. A copy of such an order is attached at the end of this judgment.
ii) The test for expert evidence will shortly import the word "necessary". The question which the court will have to ask itself is whether or not the report of the expert is necessary for the resolution of the case. FPR rule 25.1 will shortly be amended to insert the word "necessary" for "reasonably required" and there will be a new Practice Direction.
iii) It is the court which makes the order for the instruction of an expert, and this responsibility neither can nor should be delegated to the parties. It is of the essence of good case management that the court should identify the issues on which it wants the expert to report. It would thus be helpful and important for the tribunal to be able to say - if it is the case and the hard pressed Tribunal with a long list has had the time - that it has read all the (relevant) papers.
iv) If the court takes the view that an expert's report is necessary for the resolution of the case, it should say so, and give its reasons. This can be done by a preamble to the order, or by a short judgment, delivered at dictation speed or inserted by the parties with the judge's approval. I have considered this point carefully, and have come to the conclusion that this does not impose an undue burden either on the court or the profession.
v) There is no substitute for reasons. A consent order is still an order of the court: it is a judicial decision and must be supported by reasons. Equally, a decision by the LSC is a decision. It too should be supported by reasons.
vi) "Reasons" in circumstances such as these need not be lengthy or elaborate. They must, however, explain to anyone reading them why the decision maker has reached the conclusion he or she has particularly if the expert is seeking to be paid at rates which are higher than those set out in the table in Schedule 6 to the Funding Order.
vii) Speed is of the essence in proceedings relating to children. An application for prior authority must be made at the earliest opportunity and, once again, must be carefully drafted and supported by reasons.
viii) By like token, it behoves the LSC to deal with such applications promptly and, particularly if the application is being refused, or only granted to a limited extent, to give its reasons for its decision. Once again, the reasons can be concise. Of course the solicitor seeking prior authority can go ahead regardless, and instruct the expert at the rates the expert demands, but such a suggestion, in reality, is unreal. The expert's contract is with the solicitor, and if he or she does not recover the expert's costs from the LSC, it is the solicitor who is liable. Given the exiguous rates of remuneration, this is a risk no solicitor is willing to take, particularly where the client is impecunious.
ix) Similar considerations to those set out above apply to any challenge to the LSC's ruling.
x) If a case is urgent, it should be so marked and the reasons for its urgency explained.
xi) Courts should familiarise themselves with Part 25 of the FPR and with Practice Direction 25A which supplements it. Specifically, they should be aware of paragraph 4.3(h) or its equivalent when amended which provides that the person wishing to instruct an expert must explain to the court why the expert evidence proposed cannot be given by Social Services undertaking a core assessment or by the Children's Guardian in accordance with their respective statutory duties. The Rule and the Practice Direction are being revised to make them (it is to be hoped) more practical and "user friendly". Practitioners should look out, in due course, for the amendments.
The President sets out in his judgment that he recognises the extra burdens that such a course will impose on already hard-pressed court lists.
The proposed order for an instruction of an expert depends on the particular facts of the case:
a) The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.
b) This case is exceptional on its facts.
c) The costs to be incurred in the preparation of such report are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.
d) The court considers X's hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.
e) The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at a lower fee.
f) (The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior funding approval would be wholly outside the child(ren)'s timescale(s).
As far as remedies available to the parties, the President states this:
"48. As I have said several times in this judgment, there is no substitute for reasons. As I have said again, they need not be long or over-elaborate. For example, if the expert has to read 500 pages, all of which are relevant to his or her work, he or she should explain why they are relevant, and he or she can say that based on long experience on average he or she reads at the rate of one page a minute (or as the case may be), so that reading the papers is likely to take her a minimum of 8 hours. Similarly, if he or she needs to see the parent or the child more than once, he or she should explain why this is necessary in order to write a proper report. There is no substitute for reasons. It follows that if the expert's time frame is rejected by the LSC; (a) there is a rational basis for a challenge; and (b) if the LSC's refusal is manifestly unreasonable, there may be grounds for judicial review of the decision."
In Re J (Children)  EWCA Civ 380 the Court of Appeal were considering the issue of a finding of non-accidental injury with an unidentified perpetrator where the parents in the pool of perpetrators form new relationships and have children with persons not in the pool of perpetrators. Practitioners will recognise this issue as the much debated issue of paragraph 49 of the S-B (Children) [2009} UKSC 17 decision in the Supreme Court. In Re J McFarlane LJ was sitting with the Lord Chief Justice and the Master of the Rolls and gave the lead judgment.
This appeal was from the decision of a preliminary point before the Judge of first instance, who found that the threshold criteria were not crossed and dismissed the care proceedings. Both McFarlane LJ and the Lord Chief Justice were critical of the procedure and methods of the way the case was presented to the lower court. They considered it too artificial to limit the remit of the court to the issue of the past findings of non-accidental injury, to exclude the other care issues thrown up in the earlier proceedings and to fail to file updating evidence given that the past findings were seven years of age.
The appeal was dismissed on the basis of the earlier decisions of S-B and Re F. However, McFarlane LJ significantly and substantially added to the debate as to the correct approach and the full judgment in Re J bears close scrutiny. In particular:
"110. The Lancashire case in the Court of Appeal is undoubtedly authority for the proposition that where there is absolutely no adverse finding of fact against a parent, the likelihood threshold cannot be established. It is not, however, authority for the obverse proposition that you can only establish the likelihood threshold if you can identify the perpetrator irrespective of any other adverse findings that have been made.
111. Likewise Re S-B is not authority for the proposition 'if you cannot identify the past perpetrator, you cannot establish future likelihood'. In that case, which was of a one off ('whodunit') injury, there was no question of failure to protect and no finding of collusion. Thus when, in paragraph 49, Baroness Hale describes as it as impermissible to hold that the likelihood threshold in relation to the non-injured child, William, was established on the basis only that there was 'a real possibility' that the mother had caused the injury, she does so in the context of there being no other adverse findings
against that mother."
Finally, practitioners should be aware of the case of LB of Islington v Al Alas and Wray  EWHC 865 (Fam) which received a great deal of publicity when it was decided by Theis J in April of this year. The space available in this article does not allow for a detailed analysis of all of the court's findings. The court found that all the fractures found on the dead baby were a product of rickets and that the death was attributed to a constellation of benign causes, this decision having followed on from the acquittal of the parents at a trial for murder of the dead baby. The judgment on Family Law Week is preceded by a detailed summary wtitten by three of the counsel involved in the case.