A family judge has told the Legal Aid Agency not to issue a letter 'almost akin to a tick-box form' should it refuse to pay an expert's fee in a case involving a three-month old boy at the centre of care proceedings.
His Honour Judge Clifford Bellamy, in Re J (Care Proceedings: Apportionment of Experts' fees), said the agency 'must engage with the case advanced by the guardian's solicitor' when determining an application for prior authority.
The judgment, handed down this month, centres around the payment of experts' fees in a case involving a baby who sustained bilateral parietal skull fractures and a small right-sided subdural haemorrhage. The baby's parents took him to hospital after becoming concerned about swelling to his head. The local authority does not believe the injuries are accidental.
Although the parents originally consulted solicitors and legal aid is available to cover their legal costs, Bellamy said they are now, through choice, litigants in person.
Had the parents been legally aided, Bellamy would have ordered the experts' fees to be shared equally between all four parties. He acknowledged that ordering the parents to make a contribution - which they cannot afford - is a 'futile gesture'.
The two experts' fees should be split equally between the local authority and the guardian, Bellamy said. He agreed that the £180 hourly rate for one of the experts - higher than the allowable rate set out in civil legal aid regulations - was justified.
Should that expert's fee be divided equally between the local authority and the guardian, the guardian's solicitor would have to pay £216 more than she will be entitled to claim back from the agency. Even if she only paid 25% of the fee, the guardian's solicitor would still have had to pay £108 more than she would be entitled to claim back.
Bellamy said the guardian's solicitor was 'prudent' to seek the agency's prior authority, and that the application should be made and determined 'without delay'.
Should the agency refuse the solicitor's application, Bellamy said the agency must give reasons for its decision.
He added: 'The reasons given for refusal of a request for prior authority should be "concise" but must also but be sufficient to enable the parties to understand why the application has been refused.'
Bellamy referred to a different case where the agency had not made a final determination of an application for prior authority submitted 12 weeks ago. 'The initial refusal of the application was communicated to the solicitor by means of what is clearly a standard form letter almost akin to a tick-box form. The letter makes no attempt to engage with the particular circumstances of the case,' he said.