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Court of Appeal considers who should bear translation costs in public law children proceedings

Parties must collaborate to avoid time consuming satellite litigation

The Court of Appeal has considered, in Z (A Child) [2017] EWCA Civ 157, which party should bear the cost of translating documents in public law children proceedings.

Parents to care proceedings in the court below were Polish nationals, and resided in Poland throughout the proceedings. Neither read nor spoke English.  At first instance the judge had ordered that translation costs should be borne by the parents as the parties requiring the translation of documents in the proceedings.

Lady Justice Macur, giving the judgment of the Court, cited Re L (Procedure: Bundles: Translation):

"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".

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 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.

Since the Court was unable to exercise its own discretion, it affirmed the order made.

For the judgment, prefaced by a summary by Emily Ward of Broadway House Chambers, click here.