Expert witness ruling a blow to children, Society warns

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Children involved in family law cases will face extra uncertainty following a High Court ruling on the funding of expert witnesses, the Law Society has warned.

The Society reacted with disappointment to the ruling that the Legal Aid Agency, formerly the Legal Services Commission (LSC), is not normally obliged to fully fund the cost of an expert witness report ordered by a family court judge where only the child is legally aided and the parents are unable to afford the costs of a report.

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Mr Justice Ryder gave judgment yesterday in the case of JG v the LSC. JG was a 10-year-old girl who brought a claim for a judicial review of the LSC’s decision not to fund in full an expert report ordered in proceedings under the Children Act 1989.

JG’s father had applied for contact with his daughter who lived with her mother. Both parents were unfunded and represented themselves during the Children Act proceedings.

The LSC agreed to fund one-third of the costs of the report on the basis that there were three parties to the proceedings – mother, father and child, but only the child was in receipt of public funding. It argued that in a private dispute between two individuals, as opposed to a case brought by a local authority, it was not required to pay for the full cost of the report.

The report was produced for the benefit of all three parties and therefore all parties who benefit from it should share the costs jointly, the LSC said.

It was relying on section 22 (4) of the Access to Justice Act which states that costs cannot be awarded against one party simply because they benefit from legal aid.

In a letter to the judge in the proceedings, the LSC said: ‘It cannot be right for the legal aid fund to be expected to pay for the entire costs of reports in order to subsidise a private law dispute where neither parent is prepared to pay their share.’

The Law Society and the secretary of state for justice intervened in the case.

Ryder found that LSC had not acted unlawfully, as claimed, in refusing to pay the full cost, stating that the rights of the child would only require full taxpayer funding in ‘rare cases’.

At the end of the judgment Ryder said: ‘It is perhaps important to express sympathy with any family court that has to navigate these principles at the same time as dealing with litigants in person who may not have the knowledge and sometimes the capacity to understand the court’s process.

‘There is an urgent and compelling need to simplify and bring together the principles set out in the various instruments that apply so that they are readily available and comprehensible.’

A Ministry of Justice spokesman said: ‘Those involved in legal cases should contribute towards costs and fees when able to do so, including paying for expert witnesses. We believe it is only fair these costs are shared equally between those involved.’

He added: ‘Recent reforms will ensure taxpayer-funded legal aid is prioritised at the most vulnerable, and will continue to be provided for children in family law cases.’

However Law Society president Lucy Scott-Moncrieff said the position results in ‘deadlock’. Where a court decides it requires a report to help decide the child’s future, she said, unless someone is able to pay for it, there cannot be a report.

She said: ‘The court’s ruling does not address that impasse, and for that reason it is disappointing for those children who find themselves in the family courts.’

Scott-Moncrieff said the problem will be more common following the legal aid cuts that came into force on 1 April, removing funding from most private law family cases.

‘Reports required by the court for the child’s benefit should be paid for by the legal aid budget where the parents are unable to contribute: it should not be good enough to argue, as the LSC did, that the parents also benefit from a report. These cases are about the child’s future.’

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