W and Others v Legal Services Commission

In public-law child proceedings, a statutory duty to appoint a guardian ad litem and solicitor does not remove the Legal Aid Board’s discretion under the Legal Aid Act 1988 where the proceedings fall outside the mandatory legal-aid categories. The Board must, however, treat the statutory compulsion and the possibility of multiple representation recognised by the Children Act 1989 scheme as highly relevant. A refusal based only on duplication, without addressing that obligation, is unlawful. Legal aid may be subject to suitable conditions. Relief may nevertheless be withheld where remittal would cause delay contrary to the child’s welfare.

Three children involved in care proceedings became parties to an application by the local authority under section 34(4) of the Children Act 1989 to terminate contact with their mother. A guardian ad litem was appointed under section 41 and appointed a solicitor under the Family Proceedings Rules 1991. The Legal Aid Board refused legal aid on the ground that separate representation was unreasonable. Scott Baker J refused judicial review, holding that the refusal was lawful and that regulation 9(1) of the Guardians Ad Litem and Reporting Officers (Panels) Regulations 1991 provided an alternative source of funding. The appeal concerned the interaction between the statutory representation scheme and the Board’s discretion under the Legal Aid Act 1988, and the appropriate relief.

Appeal dismissed; application for judicial review dismissed; no order for costs. The Area Committee’s decision could not stand, but the court declined to remit the applications because further delay would be contrary to the children’s welfare.

1. Under section 41 of the Children Act 1989 and the Family Proceedings Rules 1991, once a guardian ad litem is appointed, the guardian is ordinarily required to appoint a solicitor. That statutory obligation does not create an automatic entitlement to legal aid for an application under section 34(4). The Legal Aid Act 1988 retained priority in any conflict, and the Board retained a discretion to refuse aid if representation appeared unreasonable.
2. In exercising that discretion, the Board had to take account of the statutory requirement for the solicitor’s appointment and the fact that multiple representation was contemplated by the family-proceedings scheme. The Area Committee concentrated on duplication and expenditure and failed to consider the special statutory position of the guardian and solicitor. That was a fundamental flaw which vitiated its decision. The Board should be very slow to refuse legal aid altogether, although suitable limits on expenditure or procedural steps could be imposed.
3. The court should scrutinise under section 41(1) whether a guardian is necessary to safeguard the child’s interests. Absence of legal representation is not necessarily an absolute bar to determining a contact application where the guardian can provide the relevant evidence and the facts permit a prompt decision.
4. The President considered regulation 9(1) wide enough potentially to include legal costs, though a grey area. Lord Justice Thorpe preferred a narrower construction, confining reasonable expenses to those directly incurred by the guardian. Both treated the alternative-funding issue as insufficient to determine the appeal, particularly because it had been raised only at the judicial-review stage.
5. Although the decision was unlawful, remittal would have caused further delay in determining the children’s long-term future. Applying the welfare principle in section 1(2) of the Children Act 1989, the court withheld relief. This outcome was not intended to establish a precedent for refusing legal aid in future cases.

• Court of Appeal (Civil Division): The application was dismissed. The Area Committee’s decision was held unsustainable, but the matter was not remitted and no relief was granted. [2000] EWCA Civ 225
• High Court: Scott Baker J refused judicial review on 5 November 1999, holding that the refusal of legal aid was not irrational or unreasonable and that regulation 9(1) supplied an alternative funding source.
• Permission to appeal: Buxton LJ granted permission on 9 March 2000.