The Law Society has warned that children caught up in family law cases will face "alarming uncertainty about their future" because of a stalemate over the funding of expert witnesses in such cases.
The High Court ruled on 10 April that the Legal Aid Agency – formerly the Legal Services Commission (LSC) – is not normally obliged to fully fund the cost of an expert witness report ordered by a judge in the family court, where only the child is legally aided and the parents are unable to afford the costs of a report.
The judgment in the case of the R (JG) v The Legal Services Commission followed the LSC's refusal to pay more than one-third of an expert's fees in a case in which the County Court had previously determined that the parents were not able to pay the other two-thirds. The LSC's decision was based on section 22 (4) of the Access to Justice Act which states that costs cannot be awarded against one party simply because they benefit from legal aid. The Law Society, which has expressed disappointment at the decision, had intervened in the case to ensure that the court was aware of the difficulties that the LSC's decision was likely to cause.
Law Society president Lucy Scott-Moncrieff said: "The LSC's position simply results in deadlock. The court has first to decide that an expert report is necessary, not just desirable, to help it decide a child's future, but unless someone is able to pay – in this case the legal aid budget – there cannot be a report. The court's ruling does not address that impasse, and for that reason it is disappointing for those children who find themselves in the family courts.
"This is going to be a more common problem following the cuts on 1 April which removed legal aid from private law family proceedings in most cases, placing vulnerable people in more difficulty. In future, where children are parties to these proceedings it is more likely that they alone will be legally-aided. Reports required by the court for the child's benefit should be paid for by the legal aid budget where the parents are unable to contribute: it should not be good enough to argue, as the LSC did, that the parents also benefit from a report. These cases are about the child's future.
"For family solicitors the judgment raises questions about when 'exceptional circumstances' would arise which would engage s10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and oblige the legal aid budget to pay to ensure effective access to justice. The Law Society will be preparing guidance on this for firms."