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Re D (Children) [2016] EWCA Civ 89

Date:24 FEB 2016
Law Reporter
(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


Royal Courts of Justice
Date: 11/02/2016

Before :


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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

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Re D (Children) [2016] EWCA Civ 89