Spotlight
Family Law Awards 2020
Shortlist announced - time to place your vote!
Court of Protection Practice 2020
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
The need for proportionality and the ‘Covid impact’
Simon Wilkinson, Parklane PlowdenThe Covid-19 pandemic has infiltrated every aspect of our lives. Within the courts and tribunals service there has been a plethora of guidance since March 2020 which...
Local authority input into private law proceedings, part II
Mani Singh Basi, Barrister, 4 Paper BuildingsLucy Logan Green, Barrister, 4 Paper BuildingThis article considers the interplay between private and public law proceedings, focusing on the law relating...
Time for change (II)
Lisa Parkinson, Family mediation trainer, co-founder and a Vice-President of the Family Mediators AssociationThe family law community needs to respond to the urgent call for change from the...
How Can I Wed Thee? – Let Me Change the Ways: the Law Commission’s Consultation Paper on ‘Weddings’ Law (2020)
Professor Chris Barton, A Vice-President of the Family Mediators Association, Academic Door Tenant, Regent Chambers, Stoke-on-TrentThis article considers the Paper's 91 Consultation Questions...
Consultation on the proposed transfer of the assessment of all civil legal aid bills of costs to the Legal Aid Agency
The Ministry of Justice has launched a consultation on the proposed transfer from Her Majesty's Courts and Tribunals Service to the Legal Aid Agency of the assessment of all civil legal aid bills of...
View all articles
Authors

Re D (Children) [2016] EWCA Civ 89

Sep 29, 2018, 22:45 PM
Private law children – Contact – Supervised contact – Fees for supervision by Independent Social Worker – Terms of instruction
The father’s appeal from an order requiring him to pay the outstanding fees of an Independent Social Worker was allowed.
Slug : re-d-children-2016-ewca-civ-89
Meta Title : Re D (Children) [2016] EWCA Civ 89
Meta Keywords : Private law children – Contact – Supervised contact – Fees for supervision by Independent Social Worker – Terms of instruction
Canonical URL :
Trending Article : No
Prioritise In Trending Articles : No
Date : Feb 24, 2016, 05:23 AM
Article ID : 116884
(Court of Appeal, Patten, Black LJJ and Baker J, 11 February 2016)

Private law children – Contact – Supervised contact – Fees for supervision by Independent Social Worker – Terms of instruction

The father’s appeal from an order requiring him to pay the outstanding fees of an Independent Social Worker was allowed.

When the parties separated the issue of contact was determined by the recorder who concluded that the father could only have professionally supervised contact with the two children. Six initial sessions were ordered to be supervised by the independent social worker and the costs of that instruction would be borne by the father. A letter of instruction was sent by the National Youth Advocacy Service.

Contact took place but the arrangements broke down and the NYAS sent the invoice for the ISW to the father. He replied objecting to the number of items on the invoice and proposing that the fee should be reduced by £355.

At the next hearing the recorder adjourned the issue of the outstanding invoice and directed that the father would be responsible for the ISW costs of the next two contact sessions which would be limited to 8 hours' supervision in total, the ISW's travel time and one hour of contact reporting in respect of each session. Following a further hearing the recorder directed the gather to pay all of the ISW's outstanding fees. The father appealed.

The appeal was allowed.

Section 11(7) of the Children Act 1989 allowed the court, when making an order for contact to specify conditions as to payment of the costs of supervision, it did not provide jurisdiction to resolve a subsequent dispute about those costs, at least when the dispute concerned a non-party. Furthermore, the Family Court's jurisdiction set out in s 31A of the 1984 Act and Schs 10 and 11 to the 2013 Act only applied in relation to family proceedings and did not include jurisdiction to resolve contractual disputes with third parties.

The recorder had not been addressed on the issue of jurisdiction and the judgment was not clear as to the basis upon which she was exercising her discretion. The terms of instruction for the ISW had not set out the level of remuneration and the father had been entitled to challenge her invoice if he had considered it excessive and unless the dispute could be resolved by some other means, he was entitled to have his challenge judicially determined by a court with jurisdiction rather than summarily dismissed.

The ISW in this instance had not been acting in the capacity of a court-appointed expert. Therefore, any power the Family Court might have had under FPR Part 25 to determine issues as to payment was irrelevant. The terms of s 11(7) of the 1989 Act enabled the court to lay down precise and comprehensive terms concerning the payment of costs of supervising contact and the recorder in this instance had done so. However, the order regarding the instruction of the ISW lacked details such as precisely the hours to be taken on each item and left open the possibility of a dispute.

The obligation to pay the ISW had been contractual but the information in the letter of instruction had been insufficient to identify with confidence the terms or, or parties to, the contract. A contact dispute between the ISW and the father would need to be resolved under the small claims procedure in the county court but if the contract was between the ISW and NYAS then NYAS would be entitled to seek reimbursement from the father within the Family Court proceedings of sums paid in respect of the invoice by seeking to enforce the terms of the order. At that point it would be open to the father to ask the court to reduce the sum payable by him to NYAS on the grounds that it had been unreasonably high.

The matter would be referred back to the recorder for determination of: the identity of the parties to and the terms of the contract; if the contact was between ISW and NYAS what order, if any, should be made by way of enforcement of the order, having regard to the father's challenge of the outstanding fees; and, whether the application for enforcement of the order should be stayed pending resolution of a contractual dispute.

Case No: B4/2015/1367
Neutral Citation Number: [2016] EWCA Civ 89

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT SITTING AT WEST LONDON
RECORDER WOOD QCKT12P00084

Royal Courts of Justice
Strand
London
WC2A 2LL
Date: 11/02/2016

Before :


LORD JUSTICE PATTEN
LADY JUSTICE BLACK
and
MR JUSTICE BAKER


- - - - - - - - - - - - - - - - - - - - -


RE D (CHILDREN)


- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -


Simon Rowbotham (instructed through the Northern Circuit Free Representation and Advice Scheme) for the Appellant father
Francis Wilkinson (instructed through the Bar Pro Bono Unit) for the First Respondent mother
Jerry Fitzpatrick (instructed by NYAS) for the children by their guardian


Hearing date : 17th December 2015


 - - - - - - - - - - - - - - - - - - - - -

Re D (Children) [2016] EWCA Civ 89

Judgment
Categories :
  • Judgments
  • Private Law Children
Tags :
Provider :
Product Bucket :
Recommend These Products
Related Articles
Load more comments
Comment by from