DS & Ors (Children)

Where publicly funded parties seek expert evidence, the Legal Services Commission may refuse funding, fund it in part, or cap the expert’s fees, subject to the governing funding provisions and public law challenge. The court deciding the care proceedings must determine whether the evidence is necessary, identify the issues for the expert, give concise reasons, and manage the timetable. A consent order cannot bind the Commission merely by describing expenditure as a necessary and proper disbursement. Applications for prior authority must be prompt and reasoned, and refusals or limited grants must be explained. Expert evidence should not, unless unavoidable, delay proceedings concerning children.

The judgment arose from care proceedings concerning a young child subject to an interim care order. A Family Proceedings Court had permitted jointly instructed independent social work evidence and described its cost as a reasonable and necessary disbursement on publicly funded certificates. The Legal Services Commission refused or limited prior authority, principally because the proposed hours and rate exceeded the applicable limits. Delay followed, and the proceedings were transferred through the Principal Registry of the Family Division. The President was asked to determine whether the independent social worker should be instructed and on what terms, but treated the central issue as the division of responsibility between the trial court and the Commission.

1. Guidance given; no determination of expert necessity. The President declined to decide whether the independent social worker should be instructed or on what terms. That was a case-management decision for the district judge who would hear the care proceedings, particularly because further material had emerged and the position remained inchoate.
2. Power of the Legal Services Commission. The Commission had statutory power to refuse funding, provide only partial funding, and cap fees payable for expert evidence. The court’s order could not bind the Commission by stating that expenditure was a necessary and proper disbursement on a public funding certificate. Any unreasonable or otherwise unlawful decision could be challenged by judicial review.
3. Role of the court. The court ordering expert evidence must decide whether the report is necessary for resolving the case, identify the issues on which the expert is to report, and give reasons. That responsibility cannot be delegated to the parties. Reasons need not be lengthy, but must explain the decision, especially where rates above ordinary funding limits are sought.
4. Prior authority and delay. Applications for prior authority should be made promptly, marked urgent where appropriate, and supported by careful reasons. The Commission should deal with them promptly and explain refusals or limited authorisation. In proceedings concerning children, expert instruction should not, unless unavoidable, hold up the case or abort the final hearing.
5. Funding limits. The Community Legal Services (Funding) Order 2007, as amended, limited payment for an independent social worker to £30 per hour in the circumstances considered. The exceptional-circumstances provisions did not provide a mechanism for paying a higher independent-social-work rate where Schedule 5 governed payment.
6. Subsidiary guidance. The President endorsed the approach in Calderdale MBC v S and the LSC [2005] 1 FLR 751 concerning division of the cost of a jointly instructed expert. The decision on any further parenting assessment was left to the allocated trial tribunal.

The judgment was a guidance decision transferred from the Family Proceedings Court through the Principal Registry of the Family Division. The President did not determine the underlying care proceedings or finally decide whether the proposed expert evidence should be commissioned.