Legal aid

Refusal of application by solicitor representing child parties to contact proceedings - by failure to consider statutory requirement to appoint solicitor - decision flawedR v Legal Aid Board, ex parte W and others: CA ( Dame Elizabeth Butler-Sloss, P., Thorpe LJ, Smith J): 20 July 2000

W and his siblings were parties to care proceedings and were represented by a guardian ad litem appointed by the court as required by s.41 of the Children Act 1989.

The guardian appointed a solicitor to act for the children as required under rr 4.11 and 4.12 of the Family Proceedings Rules 1991.

The solicitor applied for legal aid for representation which was refused.

The children applied for judicial review of the decision and appealed from the judge's refusal to grant that application.

Robin Spon-Smith (instructed by Richmond Anderson Goudie, Chester Le Street) for the applicants; Oliver Wise (instructed by Miss Toni Smerdon, Holborn) for the Legal Aid Board.

Held, dismissing the appeal on the ground that to remit the applications for reconsideration would add a delay incompatible with the welfare of the children, that the effect of an application under s.34(4) of the 1989 Act was to trigger the appointment by the court of a guardian ad litem who in turn was obliged to appoint a solicitor who with the guardian ad litem represented the child for the purpose of the specified proceedings; that on an application for legal aid by the solicitor appointed by the guardian ad litem to represent a child in such proceedings, the legal aid board in exercising its discretion whether to grant legal aid for representation erred in failing to have regard to the mandatory requirements of s.41 of the 1989 Act and rr 4.11 and 4.12 of the 1991 Rules for the appointment of a guardian ad litem and for a solicitor.