HB v A Local Authority & Anor (Wardship - Costs Funding Order), Court of Appeal - Family Division, March 21, 2017, [2017] EWHC 524 (Fam)

Resolution Date:March 21, 2017
Issuing Organization:Family Division
Actores:HB v A Local Authority & Anor (Wardship - Costs Funding Order)
 
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Neutral Citation Number: [2017] EWHC 524 (Fam)

Case No: FD16P000415

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/03/2017

Before:

THE HONOURABLE MR JUSTICE MACDONALD

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Mr Charles Hale QC and Mr Christopher Barnes (instructed by Irvine Thanvi Natas Solicitors) for the Applicant

Mr Teertha Gupta QC and Mr Oliver Jones (instructed by the local authority solicitor) for the Respondent

Mr Peter Oldham QC (instructed by the LGA) for the Intervener

Hearing dates: 14, 15 and 16 February 2017

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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THE HONOURABLE MR JUSTICE MACDONALD

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

Mr Justice MacDonald:

INTRODUCTION

  1. The question before me is whether the High Court has power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid. I am satisfied that the answer to that question is `no'.

  2. The question arises in circumstances where the local authority has in this case chosen to issue wardship proceedings in respect of the children under the inherent jurisdiction of the High Court rather than care proceedings under Part IV of the Children Act 1989. In choosing this course of action, the local authority avers that it was following what it considers to be guidance given by Hayden J in Re Y (A Minor: Wardship) [2015] EWHC 2099 (Fam) and LB Tower Hamlets v M and Others [2015] EWHC 869 and endorsed, the local authority submits, by the President in Re M [2015] EWHC 1433 (Fam).

  3. In consequence of the type of proceedings issued by the local authority the mother is not entitled to non-means, non-merits tested legal aid, as she would have been had care proceedings been issued. The mother's application for means and merits tested legal aid has been refused by the Legal Aid Agency on grounds that her monthly income takes her slightly over the income limit stipulated by the regulations, beyond which income limit means and merits tested legal aid is not available for wardship proceedings (the Legal Aid Agency did not take issue with the mother's application for funding of the basis of merit).

  4. On behalf of the mother, Mr Charles Hale QC and Mr Christopher Barnes (who, with their instructing solicitor and in the very best traditions of the legal profession, appear today for the mother pro bono) submit that, by reason of the local authority choosing to issue wardship proceedings in preference to care proceedings, the mother now finds herself as a parent (as distinct from other categories of carers and family members) who faces grave allegations levelled against her by the State of having caused or being likely to cause significant harm to her children but without an entitlement to non-means, non-merits tested legal aid to defend those allegations. Mr Hale and Mr Barnes accept that the costs funding order that they seek as a remedy to this situation is without precedent. They argue however that, in the present case, the law can and should be extended to provide for such an order, contending as they do that existing principle and authority demonstrates that the court can find a power under its inherent jurisdiction to make a costs funding order in favour of a parent against a local authority in proceedings of this nature.

  5. On behalf of the local authority, Mr Teertha Gupta QC and Mr Oliver Jones argue that to accede to the mother's application for a costs funding order against the local authority using the inherent jurisdiction would amount to the court engaging in impermissible judicial legislation in circumstances where Parliament has created a detailed, carefully thought out statutory regime governing the provision of legal aid. Mr Gupta and Mr Jones submit that the proper remedy for the situation the mother finds herself in (and that other respondents may potentially find themselves in the future) is for this court to reconsider what the local authority submits is guidance given in Re Y (A Minor: Wardship), LB Tower Hamlets v M and Others, and endorsed in Re M, so as to ensure that all cases in which the State levels allegations against a parent that they have caused or present a risk of significant harm to their child are pursued under the statutory regime designed to deal with such cases, namely Part IV of the Children Act 1989, in respect of which statutory regime Parliament has made provision for non-means, non-merits tested legal aid. Mr Gupta and Mr Jones further submit that, insofar as there remain cases in which it is appropriate for the local authority to proceed under the inherent jurisdiction, the court should consider indicating that a change to the scope of the legal aid regulations is merited to bring cases under the inherent jurisdiction in which a local authority makes allegations against a parent within the scope of non-means, non-merits test legal aid.

  6. The Local Government Association (hereafter the LGA) has accepted an invitation to the court to intervene on the question of a costs funding order. Mr Peter Oldham QC has provided written submissions to the court on behalf of the LGA, for which the court is grateful. Mr Oldham submits that, in circumstances where Parliament could have, but has not made statutory provision for costs funding orders for proceedings of this type, where the mother has not sought to challenge by way of judicial review the lawfulness of the Legal Aid Agency's refusal to grant her a certificate by reference to the provisions of the Legal Aid and Sentencing of Offenders Act 2012 and the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013, where the granting of a costs funding order under the inherent jurisdiction would, in effect, be to set up an ad hoc extra-statutory legal aid fund and where, within this context, the making of a costs funding order would constitute an arbitrary decision and be contrary to good administration, the mother's application should be dismissed.

  7. The court also invited both the Legal Aid Agency and the Lord Chancellor to intervene on the question of whether a costs funding order should be made in favour of the mother and against the local authority. Those invitations were declined. By way of an email dated 7 February 2017, Mr Michael Rimer, Senior Lawyer for the Legal Aid Agency replied on behalf of the Legal Aid Agency and the Lord Chancellor as follows:

    ``...the Legal Aid Agency (Director of Legal Aid Casework) and Lord Chancellor politely decline the invitation to intervene. [HB] was assessed as being financially ineligible to be granted civil legal aid. Her witness statement in support of her application confirms that her monthly income is above the threshold of £733. If [HB] thought that the Legal Aid Agency had made an error in assessing her financial resources, she could have written to the Agency to point this out. Additionally, if [HB] thought that the Agency's decision was wrong or otherwise unlawful, her remedy is to challenge the decision by bringing a claim for judicial review. When an individual is financially ineligible for civil legal aid, there is no discretion in the scheme to grant them funding.''

  8. Finally, by way of introduction, at the conclusion of this hearing the local authority indicated through Mr Gupta and Mr Jones that were the court to dismiss the mother's application for a costs funding order, and were the court to consider that what the local authority submits is the guidance given by this court on the use of the inherent jurisdiction in cases of alleged radicalisation should be revisited, it would be the local authority's intention to issue care proceedings in this case.

    BACKGROUND

  9. HB is the mother of ML, aged 6, and BL, aged 3. The children's father is MB, also known as MM. MB has been in Syria since the end of 2013. There is some evidence that certain material in the family home indicates the father is now dead. Whilst the mother disputes the provenance of that evidence, she has heard rumours that the father is, indeed, dead. The evidence before the court is further said to establish links between a number of other members of the extended maternal family and extremism and terrorism.

  10. It is not necessary for the purposes of this judgment to go into the detail of the allegations levelled at the mother by the local authority. In summary, the local authority seeks findings against the mother that on one occasion she took the children to a town in Turkey close to the Syrian border, that on two occasions she has been stopped leaving the country with large sums of money, that she has sought to provide funds to persons associated with the so called Islamic State, that she holds, and sympathises with extremist views and that, within that context, she has placed, and is at risk of placing her...

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