Re R (A Child) [2007] EWCA Civ 943

Regular readers/insomniacs will recall I discussed Re W (A Child) [2007] EWCA Civ 102 indicating the dangers of judge’s being overawed by the constant advice to progress cases.

Another less common but related error is found in Re R (A Child). The principal error into which the judge fell in this case was to look at the case from the adult’s point of view. Having effectively forgotten the welfare principle, he nonetheless remembered the need to press on and make an order.

A father against whom findings of fact had been made of domestic violence and inappropriate physical chastisement to the child sought what the judge described as ‘modest’ contact of two half-hour sessions during the Summer holidays. But though from the father’s perspective the contact was modest and the court would in normal circumstances be almost bound to order it, from the daughter’s it was not. She was partially blind, had Asperger’s Syndrome and exhibited extreme behaviour at school, where she was not settled.

Moreover, CAFCASS had observed a contact session with the father and had reported that the effect on the child was such that it was not appropriate to continue. The CAFCASS and a doctor’s report both recommended that it would be prudent to allow the child to settle into school before trying again and CAFCASS went further to say that even then, contact should not take place without a positive school report. One was not available at the disposal and neither expert was cross-examined.

The Court of Appeal, overturning the judge’s order, found that at the child’s stage of development, the two half-hour sessions were ‘an enormous leap’ and the benefit of waiting as suggested by the experts outweighed any disbenefit to the relationship with her father. The Court of Appeal seems to have been reasonably polite given that the judge a) effectively ignored the welfare checklist &/or b) gave disproportionate weight to the need to conclude matters swiftly and c) gave no consideration to the fair trial rights of the mother who opposed the making of the order but had no opportunity to re-examine the experts who agreed with her, as they had not given evidence.

Charging assessment/contact costs to the Legal Services Commission

Readers will be aware of the horse-trading that precedes the making of an order for assessment and the incurring of costs for experts’ reports. They will also be mindful of the phenomenon of a publicly-funded party’s certificate bearing the whole cost of a report or supervised contact sessions where the other side is privately-funded.

Though the general mechanism for this is for the court to specify that it is a proper disbursement on the funding certificate in question, readers should be aware that in the view of the LSC at least, that apportionment is subject to the scrutiny of the costs assessors of the Fund. (I have not read Lambeth v S, C, V & J and the LSC [2005] EWHC 776 Fam, which purports so to find) The consequence of that is that solicitors could find themselves having paid a bill of several thousands of pounds and never recovering it from the LSC. Worse still, they could recover it, have it spotted in an audit and lose their franchise as a consequence of having over-billed.

It is responsible in the writer’s view for counsel to remind themselves of the relevant guidance which appears at http://www.legalservices.gov.uk/docs/civil_contracting/Vol1PartDSection5.6FINAL49.9KB.pdf.

This gives the Commission’s view on the effect and consequences of the Calderdale guidelines (Calderdale v S [2004] EWHC 2529). Two moot points which it is useful to have the Commission’s view on are a) that just because a party is interested in a particular part of an expert’s report, it does not follow that they should share in the costs of the whole report (see para 5.8.4 (where, maddeningly, the LSC state that ultimately the apportionment is a matter for the judge (i.e. conflicting with the overall thesis that the costs assessor is the ultimate authority)) and b) that apportionment should be divided between the parties including each child i.e. if there are four parties and one child, a five-way split; four parties and three children, a seven-way split.

On the discrete point of contact centre fees, readers should not miss the short guidance at paragraph 5.9 of the paper and in particular the three bullet-points which suggest to the writer’s mind that the LSC might have in mind a tightening up of this growth area of expenditure. This area does not, happily, bear the risk that the fees cannot be paid (as for those associated with 38(6) assessments, even if ordered) but there remains the risk that they will not.