HB v A Local Authority & Anor (Wardship - Costs Funding Order)

The inherent jurisdiction does not empower the High Court to require a local authority to fund legal representation for a litigant who has been lawfully refused legal aid under Parliament’s detailed statutory scheme. A general jurisdiction to ensure fairness, equality of arms or the child’s welfare cannot circumvent that scheme or authorise public expenditure without clear statutory authority. Any challenge to the lawfulness or Convention compatibility of the legal-aid refusal must be pursued by judicial review. In alleged radicalisation cases, the inherent jurisdiction may be appropriate for urgent removal or passport issues, but care proceedings under Part IV of the Children Act 1989 may be more appropriate where the issues concern wider welfare effects, significant harm and continuing statutory oversight.

The mother faced wardship proceedings issued by a local authority concerning allegations of extremism, travel to the Syrian border, provision of funds and risk of significant harm to her children. Her application for means- and merits-tested legal aid was refused because her income exceeded the applicable threshold. She sought an order requiring the local authority to fund her legal advice and representation.

The parties accepted that no statutory provision directly authorised such an order. The central questions were whether the High Court could derive that power from its inherent jurisdiction, whether Articles 6 and 8 supported it, and whether the choice between wardship and care proceedings should be reconsidered.

1. Application dismissed. The inherent jurisdiction did not confer power to require a local authority to incur expenditure funding representation for a parent lawfully refused legal aid.
2. The local authority was not merely a private party. It was also a public authority subject to statutory controls and publicly funded. The proposed order would therefore involve public expenditure and could not be equated with private-law costs funding orders made under express statutory powers.
3. The principles identified in Re K required clear statutory authority for public expenditure. A general power could not circumvent the detailed legal-aid code. The statutory examples relied upon by the mother rested on express powers to award funds for defined purposes.
4. The order would affect substantive rights, not merely regulate procedure. The court could not use its inherent jurisdiction to achieve fairness where the general law and statutory rules governed the proposed expenditure.
5. Articles 6 and 8 did not create an alternative funding jurisdiction. Reasonable means and merits tests were permissible. Any challenge that the refusal of legal aid was unlawful, unfair or Convention-incompatible had to be brought by judicial review, not by a collateral application in the Family Division.
6. The authorities concerning alleged radicalisation did not establish a general preference for wardship. Wardship was particularly apt for urgent removal, passport or recovery issues. Care proceedings were likely to be more appropriate where the issues extended to parental beliefs, extremist material or wider welfare consequences. Funding availability was a powerful factor, although jurisdiction could not be selected solely for that reason.
7. The court could not compel the local authority to issue care proceedings. It nevertheless indicated that issuing such proceedings was a realistic course in this case, and would give case-management directions if they were issued.

First-instance decision. No prior appellate decision is stated in the judgment.