Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
The 10-year-old girl lived with her mother when her parents separated. The father applied for a residence and contact order pursuant to s 8 of the Children Act 1989. The parents throughout proceedings were litigants in person but as a consequence of the child being joined to proceedings she was granted a public funding certificate, represented by a solicitor and allocated a children's guardian.
Upon the suggestion of the children's guardian the judge ordered a psychologist assessment of the family functioning and dynamics in circumstances where the mother had made allegations of domestic violence and a fact-finding had found some but not all of the allegations made out. An expert was identified and was instructed as a single joint expert to proceedings with the cost to be funded by the child as a reasonable disbursement to be incurred under the terms of the public funding certificate. At the hearing there was no consideration of the parties' financial means and the child's solicitors did not seek prior approval of the costs.
The expert prepared the report and produced an invoice for £12,000 as opposed to £7,540 which had been originally quoted. He also recommended an addendum report but would not undertake the work until the first invoice was paid. The child's solicitors would not take the risk and pay in case the LSC would not pay. The LSC, as requested by the court, explained its position that in paying the full cost of the report it would be acting in breach of s 22(4) of the Access to Justice Act 1999 due to the fact that these were private law proceedings and the costs of such a report should be equally apportioned between the parties. The LSC, therefore, agreed to pay one third of the cost. The child brought judicial review proceedings in respect of that decision.
The Law Society, intervening, proposed that the child should be ordered to produce the report and adduce it in evidence alone, ie, the report should not be one of a single joint expert. That proposal was not approved by Ryder J.
The main principles were: the court must recognise the ‘necessity' of the evidence in the first place; the court should be satisfied that the parties have complied with their responsibilities before deciding whether to grant permission for evidence from a single joint expert; the court should order equal apportionment of costs of a single joint expert save in exceptional circumstances; in certain cases prior approval will be necessary, in which case the principles in A Local Authority v DS  EWHC 1442 (Fam) should be applied; the child's timetable should never have to wait for a funding decision.
The child's challenge to the legality of the decision would only succeed if it fell within the exceptionality requirement. On the facts of the case the decision was not unlawful and the ground of irrationality was not argued.