The Court of Appeal has ruled that the Legal Aid Agency (LAA, formerly the Legal Services Commission) acted unlawfully in refusing to fully fund the cost of an expert witness report ordered for a child by the family court.

The case, JG v the Lord Chancellor, followed the LAA’s refusal to pay more than one-third of an expert’s fees in a case under the Children Act 1989 where only the child concerned had legal aid.

The parents, who did not have the benefit of public funding, represented themselves.

Lady Justice Black said: ‘The LSC’s decision not to meet the cost of the expert’s report was unlawful.

The Law Society intervened in the case to argue that where an expert’s report is sought by the child alone, it will be legitimate for the legal aid budget to bear the full cost. 

The lord chancellor (pictured) argued that parents who are not legally aided should pay their share of the expert’s fee, but the court accepted the appellant’s and the Society’s argument.

The Court rejected the lord chancellor’s argument that there is any ‘normal rule’ that costs should be apportioned equally even where a single joint expert is instructed by all the parties.

The judgment overturned the decision of Mr Justice Ryder in the High Court in April, who said the LSC was not obliged to pay the full costs except in ‘rare cases’.

The judgment means that in future the LAA must look at the facts of a specific case to decide whether it should pay the fees in full.

It also means that where unrepresented parents cannot afford to commission expert evidence but the court and the child’s guardian considers such evidence necessary, it may still be appropriate for the full costs to be borne by the child through their legal aid certificate.

Giving judgment today, Black said: ‘Nobody can be in any doubt that the general question encapsulated a real issue of very considerable importance in private law proceedings relating to children in the wake of the severe restriction on public funding for those involved in such proceedings.’

Law Society president Nicholas Fluck said: ‘The family court has to be able to obtain the expert evidence it needs to help it decide a child’s future without being blocked by the legal aid authorities, otherwise the court and the child are left without a report that the judge has said is needed.’
He said: ‘The LSC and lord chancellor’s position has left many family cases at an impasse where expert evidence that the court has deemed necessary is not available.

‘This situation could not be allowed to continue and we welcome the Court of Appeal’s decision.’

Read the full judgment.