How often has it been said that delay is the cancer which eats away at our system of justice? The Civil Procedure Rules were brought in on a tide of enthusiasm to reduce delay. The latest Family Procedure Rules adopt much of the style, form and content of their civil sibling, but delay still occurs.
A common source of that delay is the failure of parties to comply with the timetable laid down by the court. Nowhere are such failures more evident than in the family justice system. These typically occur over funding issues, especially where practitioners feel obliged to seek the prior authority of the Legal Services Commission for payment of a disbursement for an expert or for representation at a substantive hearing.
Lord Justice Wall has provided some excellent guidance to the judiciary and parties in the decision of DS & Ors (Children)  EWHC 1442 (Fam),  All ER (D) 06 (Jun). The facts, as his lordship remarked, are not pertinent to his guidance save for the principle involved. The court had made an order for a report from an independent social worker as an expert in care proceedings.
The LSC refused an application for prior authority, principally because this expert’s rate exceeded the guideline rate. It brought the case to a standstill, which the district judge at the Principal Registry found untenable and so referred the matter to his lordship, who directed that the LSC should attend. Initially it declined his invitation. It did offer to attend at a telephone hearing, but after some prompting by the president the commission did attend in person to explain its position.
The issue in this instance was the charging rate of the independent social worker, but the remarks of the president make it clear that it could have applied to any direction by the court for which a solicitor seeks a prior authority. In his judgment the president declined to make any specific order in respect of the issue before him as it appeared that the issues were being resolved elsewhere.
The court posed the anomaly that an administrative body (the LSC) ‘can render nugatory a judicial decision taken in what the court perceives as the best interest of the child’. The scope of funding for such litigation was made in regulations approved by parliament, and thus the president concluded that such a decision was valid unless it was open to review by the High Court upon Wednesbury principles. The president did, however, emphasise that the decision to appoint an expert is one for the ‘tribunal which is to hear the case’ and ‘not some third party to whom the case has been assigned for a specified purpose’, which must be a reference to the LSC.
On the face of it, the battle lines looked as if they were being drawn between the authority of the court to determine the outcome of an application under the Children Act 1989, and the power of the LSC to determine at what costs an expert could be employed. Reason, however, prevailed over such a conflict since it was clear that there was an escape route available in appropriate cases. Article 5(2)(e)(ii) of the Community Legal Services (Funding) Order 2007 (the funding order) affords the commission discretion to permit the authorisation of higher fees in exceptional circumstances.
The regulations even define ‘exceptional circumstances’, in paragraph 2 of section 2 of schedule 6 to the funding order, as either the complexity of the material being such that an expert of a high level of seniority is required, or the material being of such a specialised and unusual nature that only few experts are available to provide the necessary evidence. However, this case was unlikely to reach such criteria and so the decision concerning the use of the independent social worker was left to the court of first instance to decide.
The president’s decision clearly signals his awareness of the problems facing practitioners. Unusually, he ventured into the minutiae of the rates for experts including their travel costs. He acknowledged the pressure imposed upon judges and advocates in dealing with such issues in congested lists, as well as the recounting of anecdotal complaints over poor remuneration to the professions.
His decision does, however, provide guidance to judges, parties and no doubt the LSC as to what steps the parties should take. Taking account of the forthcoming amendment to rule 25.1 of the Family Procedure Rules 2010, where ‘reasonably required’ will be replaced by ‘necessary’, the president emphasises the need for any order made to address the reason for direction in the determination of the case. He commends the use of a preamble to explain the reason, or indeed a short judgment that can be incorporated into the order to enable the LSC to understand why it is necessary. The use of the phrase ‘the costs thereof is deemed to be a necessary and proper disbursement’ should not be used in future.
This phrase is not capable of restricting the decision of the LSC under the funding order. Instead, practitioners should familiarise themselves with rule 25 of the Family Procedure Rules and the practice direction which requires the party seeking such a report to deliver to the court, one working day before the hearing, a statement complying with those matters set out in the practice direction. This would include an explanation as to why one of the other agencies such as Cafcass or Social Services is not able to carry out the relevant assessment. A template direction is also included for use with suitable adaptation when seeking to instruct an expert. Expect these magic paragraphs to start springing to life in every order where an expert is required in place of the previous magic phrase that was deprecated.
Could the Family Division of the High Court make the decision that the parties wanted by forcing the commission to concede? It seems unlikely, considering the application was one under the Children Act 1989 rather than the exercise of the High Court’s administrative jurisdiction. The guidance given by the court does, however, give parties the best of opportunities in the best of cases for breaking any barriers laid down by the commission. How frequently ‘exceptional circumstances’ will arise is yet to be seen. It is clear that advocates will need to be alert to the requirement to ensure that preambles, as suggested by the president, are used.
If there is a tension between ‘exceptional’ in the funding order and ‘necessary’ under the Family Procedure Rules, it will need to await the outcome of a more clear-cut set of circumstances than afforded by this case. In the meantime it is to be hoped that the LSC will react appropriately when presented with the compelling need for expert evidence. We owe it to the children in these cases to arrive not only at a just decision, but also a prompt one.
District Judge Christopher Vokes sits at Bow County Court