Z (A Child)

In family public law proceedings, the court has a discretion to decide who should pay document-translation costs. That discretion must be exercised case by case, having regard to all the circumstances and the forensic context.

There is no general rule that the party producing a document, bearing the threshold burden, or requiring translation must pay. Documents may be disclosed against a party’s interest or may serve a shared forensic interest. A routine or blanket practice is therefore not a proper exercise of discretion. The distinction between adversarial threshold issues and inquisitorial welfare decisions informs the analysis but does not determine the allocation of costs. Legal aid funding, the European legal aid directive and article 6 do not displace the domestic discretion.

Reading Borough Council appealed against a case-management order made by His Honour Judge Oliver in public law care proceedings. The order required the local authority to translate documents it served on the parents where translation was necessary for a just resolution.

The parents were Polish nationals who did not speak or read English and were legally aided. The judge rejected the local authority’s application to vary the order and held that the party producing or relying on the original document should bear the translation cost. The central issue was whether that approach could operate as a general rule, or whether allocation had to depend on the circumstances of each case.

1. Outcome. Macur LJ allowed the appeal. The lower court had exercised its discretion on an erroneous general basis. However, the Court of Appeal lacked sufficient information to exercise its own discretion safely. It therefore set aside the judge’s order but affirmed the order in substance. Longmore LJ agreed.
2. Statutory discretion. Under sections 51(1) and 51(3) of the Senior Courts Act 1981, costs in family proceedings are within the court’s discretion, and the court may determine by whom and to what extent they are paid. Section 26(1) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 incorporates reasonableness into the treatment of costs. Section 30 confirms that public funding does not exempt the legal aid fund from costs orders.
3. No general allocation rule. The party producing a document may bear the cost where the circumstances justify that order. The party requiring the translation may bear it in another case, and costs may be apportioned. Production does not establish that a document is solely for the producer’s benefit. Documents may be disclosed against interest or may reflect a shared forensic interest, as illustrated by Calderdale Metropolitan Borough Council v S and the Legal Services Commission [2005] 1 FLR 751. The approach in JG v The Lord Chancellor and Others [2014] 2 FLR 1218, requiring costs discretion to be tailored to the facts, applied equally to translation costs.
4. Necessary translation and case management. Translation should be confined to material necessary for a just resolution, with attention to the important substance of the case rather than fine detail, applying Re L (Procedure: Bundles: Translation) [2015] 1 FLR 1417. Disputes about which documents require translation should be resolved by the judge where the parties disagree or funding approval may be problematic. The Family Procedure Rules 2010 require collaboration to avoid satellite litigation.
5. Nature of care proceedings. Contested threshold issues are adversarial because the local authority bears the burden of proving the relevant past events. Welfare decisions are inquisitorial. This distinction, confirmed in In the Matter of TG (A Child) [2013] EWCA Civ 5, informs the analysis but does not create a fixed rule on translation costs. The European legal aid directive and article 6 of the European Convention on Human Rights were irrelevant to the allocation issue.

• Court of Appeal (Civil Division) [2017] EWCA Civ 157: allowed the appeal because the discretion had been exercised on a wrong basis, but affirmed the order in substance because the appellate court could not determine the allocation afresh on the available information.
• Family Court at Reading: His Honour Judge Oliver dismissed the local authority’s application to vary the translation-cost order and maintained the approach that the party producing or relying on the original document should bear the cost.