(Queen's Bench Division, Collins J, 26 April 2013)
The six children, all under 11 years of age and of Bangladeshi origin, were removed from their parents' care due to concerns of neglect and were placed in foster care. During proceedings permission was granted to instruct a psychologist and a specialist family service to report on the attachment between the parents and children as well as the parents' capacity to meet the needs of the children. The judge determined that the reports were necessary for a determination of whether the parents could care for the children and because the case was exceptional as involving allegations of neglect of six young children.
The judge approved fees of £90 per hour, to be paid in equal shares by all the parties, as being wholly reasonable, necessary and a proportionate disbursement on the public funding certificates of those parties who were publically funded.
In the event prior approval was eventually granted but at a level significantly less than the minimum fees estimated. Despite requests for the Legal Aid Authority to engage with proceedings and explain why the request was refused, a representative failed to provide an explanation for the decision.
The parties' brought judicial review proceedings. The Legal Aid Authority decision was quashed. While it was open to the defendant to determine a request was excessive and refuse prior authority it also had to be reasonable. In cases where children may be removed from their parents' care, Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was engaged and the welfare of the child was paramount. Fairness dictated that where prior authority was refused sufficient reasons should be provided so any challenge could be brought speedily.