Tag Archives: Hemming

Costs of Experts in Care Proceedings – what happens when parents dispense with their lawyers?

 

The decision in J (A Child: Care Proceedings: Apportionment of Expert’s fees) [2017] EWFC B49 is mainly concerned with how to ensure the court gets help from expert witnesses now that their fees are subject to pretty stringent caps by the Legal Aid Agency (LAA -formerly Legal Services Commission or LSC)

I set out the discussion about hourly rates and apportionment of fees below; its pretty dry stuff but horribly necessary. It is clear that we live in a society now where a decision by the court that an expert’s opinion is ‘necessary’ is a decision that can be thwarted by a branch of the government that has set the level of acceptable rates for expert pay. It is possible to argue that your expert should be paid more but only in ‘exceptional circumstances’.

Matters were complicated here by both parents refusing to instruct lawyers and thus take advantage of the non means non merits tested public funding they would get.

If all the parties had lawyers the costs would probably be split 4 ways – in this case the court had to split them between the LA and the guardian. This does in fact reduce the burden on the LAA as it faces only 50% of the bill rather than 75% had costs been split four ways and the LA was the only party not with a legal aid certificate. So hopefully it won’t be a problem in this case. But what if it is? What if there are problems for the guardian on his publicly funded certificate? Best case scenario is further delay while arguments are had with LAA. Worst case scenario  is the court doesn’t get the evidence it needs and more experts are put off appearing in family courts over concerns they may not get paid for the work they do.

The discussion and clarification about issues of apportionment of expert fees are very relevant for lawyers, which is why I deal with it below. But the real worry for me about this case is WHY are the parents not accepting lawyers? I accept from some Twitter discussions about this, it could just be that they are distrustful of lawyers having had previous bad experiences.

But I worry – and have plenty of evidence to support my worry – that whispering in their ears will be the voices of those such as Hemming. That they have been told not to trust ‘legal aid losers’ and thus they will try and fight their corner alone. Their baby has a serious head injury and they are in the pool of perpetrators. One of the options before the court is adoption. To attempt to participate in these proceedings without a lawyer is sheer madness. But to end up paying money to some dodgy McKenzie Friends would make it a tragedy.

I remain shocked, sad and baffled that the activities of some self styled McKenzie friends appear to attract so little attention or concern in the wider world. I hope these parents do not come to regret the choice they made here.

For more details about my concerns about Hemming and his organisation JFF, see the posts set out here. 

Summary of the decision in Re J concerning experts’ fees

  • There is no ‘normal rule’ that costs are apportioned equally between all parties. The court retains discretion.
  • Hourly rates are matter for the LAA to determine but apportionment of fees a mater for the court – probably…
  • Guidance re applying for prior authority is inconsistent but to avoid delay it should be done quickly
  • The LAA should give reasons for its refusal

Fixed rates paid to experts when parties are legally aided.

1. Para 1 of Schedule 5 to the Civil Legal Aid (Remuneration) Regulations 2013 provides that subject to paragraph 2, the Lord Chancellor must pay remuneration to the provider for the expert service at the fixed fees or at rates not exceeding the rates set out in the Table. The Table that follows sets out a list of different categories of expert and the permitted maximum hourly rate for that expert.
2. It is possible to get paid more than these rates. This is set out at paragraph 2 of Schedule 5, if the circumstances are ‘exceptional’. This is defined as meaning the expert evidence must be ‘key’ to the client’s case AND either the material is so complex an expert with high level of seniority is required OR the material is so ‘specialised and unusual’ that only very few experts could deal with it.
3. If parties want to get their expert paid by the Lord Chancellor via the Legal Aid Agency, beyond the rates set in the Table because of exceptional circumstances, they have to apply to the LAA for ‘prior authority’ , i.e. permission to go over the fixed rates. If they don’t get this permission, the solicitors could end up with the bill as they have now a contractual relationship with the expert to pay for his or her services. They are not expected to take this risk and can’t be compelled to take it.
4. The application for prior authority is via a prescribed form. If refused there is no right of appeal. The solicitor can ask the LAA to reconsider but only challenge to refusal is by way of judicial review. The LAA suggest that they take 9 days to process an application but in reality it appears it will take much longer than that. This is potentially a cause for delay in Children Act cases.

Is equal apportionment of fees the ‘normal order’ where there is no issue over resources? ANSWER NO

5. This was the first question posed in Re J. With regard to the issue of apportioning fees the court examined the decision of the Court of Appeal in Re JG (A Child) [2014] EWCA Civ 656. The Lord Chancellor asserted it was the ‘normal’ rule that costs should be apportioned equally between the parties and any departure from this ‘normal’ rule that increases a burden on a publicly funded party should be confined to only ‘exceptional circumstances’. The court rejected the idea that such a ‘normal rule’ existed and said ‘it all depends on the particular circumstances of the case’ (para 16).
6. Instead the court looked to the decision in Calderdale MBC v S and the LSC [2005] 1 FLR 751. All parties were publicly funded except the LA. The parties jointly appointed an expert. The LSC persuaded the court to apportion 50% of the costs to the LA. On appeal Bodey J apportioned costs equally between all parties – so the LA paid 25%.
7. Bodey J was clear this was a matter for the court’s discretion. In the exercise of its discretion the court must consider all circumstances but in particular:
a. The adequacy of the work done by the LA itself
b. Where the report is directed at threshold or welfare issues
c. The need for each party to have confidence in the integrity of the forensic process.
8. The court in Re J considered two other authorities and concluded it was clear that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings.

The Family Procedure Rules 2010

9. The impact of Rule 25.12(6) FPR mirrors Rule 35.9(5) CPR and provides:
Unless the court directs otherwise, the relevant parties are jointly and severally liable for the payment of the expert’s fees and expenses
10. The court conceded this is an odd provision as it appears to be concerning itself with the contractual relationship between the parties and the expert. However, the court decided that when reading it alongside Rule 2512(4)(a) – the court may give directions about experts fees and expenses – it is not intended to be prescriptive and simply establishes a ‘default’ position in the absence of any other court directions. This does not however set up a ‘normal rule’ that costs are to be apportioned equally.

What happens when one party has no money?

11. In re J neither parent was able to pay anything as they had very limited means and they had refused to instruct lawyers even though they would have attracted non means and non merits tested legal aid. If the parents had been legally aided the court had no doubt it would have ordered the expert fees to be shared equally between all parties. Black LJ in re JG was very clear that ‘equality is not the norm’ and the impecuniosity of a party may justify the unequal apportionment of an expert’s fees between the parties’.
12. The court therefore concluded at para 18 of the judgment that it had to accept this was a case ‘in which fairness and common sense dictate that an order requiring an equal sharing of the experts’ fees is wholly inappropriate’. The fees should be paid equally by the guardian and the LA.
13. However, the court still needed to consider the Guidance published by the LAA, which was updated in September 2014. Para 1.6 of the Guidance headed ‘Joint instructions and apportionment generally’ advises that it is normal practice for an application to be made for prior authority wherever a party’s legal representative or the expert are unwilling to take a risk as to assessment of expert fees’
14. There is also Guidance published in 2013 on Remuneration of Expert Witnesses which was updated in April 2015. Section 4 of that guidance appears to contradict para 1.6 of the 2014 guidance as it makes application for prior authority mandatory – ‘you MUST always apply for prior authority where you seek to incur costs of an expert service at higher rates than those set out in the Remuneration Regulations…’
15. Para 4.5 of the 2013 Guidance also recognises that unequal apportionment of costs will not always be unusual in care proceedings – for e.g. one party may be an intervenor and it wouldn’t be appropriate for them to bear an equal share of an expert report going to an issue which is not relevant to their intervention.

So what happened in Re J about splitting costs between LA and Guardian?

16. The court approved the instruction of two experts and determined their fees should be split 50/50 between the LA and the Guardian. The court asked – why is prior authority needed before a letter of instruction can be sent? And if an application is made for prior authority for an unequal apportionment of an expert’s fees ordered by the court, is it open to the LAA to refuse that application?
17. Sir Nicholas Wall P in A local authority v S and others [2012] EWHC 1442 (Fam) was clear that the LSC has power conferred on it by Parliament to refuse to fund an instruction or fund in part only. The only remedy is by judicial review. BUT that was a case dealing with the hourly rate paid to experts. How payment of that hourly rate is to be shared between the parties is NOT subject to any regulations. ‘The issue of apportionment is at large’ (para 24).
18. The court was doubtful that the LAA could interfere with the decision of the court about apportionment, but this was a question for another court on another day. However, the guardian’s solicitor thought it prudent to apply for prior authority in any event and court agreed this was sensible.

The hourly rates of the expert in Re J

19. The excess requested by the expert was £432. Dividing this between the LA and the guardian means that the guardian would have to pay £216 more than could be claimed by the LAA. Even if the guardian was only paying 25% that represents £108 more than could be claimed back. The court agreed that the guardian must seek prior authority to instruct the expert at an hourly rate in excess of the standard rates.
20. The application for prior authority should be made without delay and the LAA, if it refused the application should give reasons for its decision as fairness dictates that the parties are able to understand why it has refused to allow what the court has considered necessary – and if appropriate, challenge can be made speedily.

The Particular Dangers of Conspiracy Theories for Parents

This is a post by Sarah Phillimore.

‘Conspiracy theories/theorists’ is a phrase often used on this site by me. Sometimes I slip into rather coarser language and refer to ‘conspiraloons’, which reflects the degree of exasperation I often feel for those who promote narratives about the child protection system that I think bear very little resemblance to the reality but instead promote fear and distrust.

I accept that it isn’t helpful if I let these feelings take over and lead me into dismissive language – and dismissive thinking. I can’t possibly know the truth about everything. But I do have some pretty good ideas about the truth of many things – based on my own direct experiences as well as wider reading/thinking about issues. So if you want me to accept a different truth, it will help if you can demonstrate by something other than mere assertion that my ‘truth’ is wrong.

So that is my individual perspective. But why I worry about conspiracy theories, and get impatient and testy with those who promote them, goes much deeper than simply my own personal annoyances.

Conspiracy theories about the child protection system have a real and immediate danger for parents caught up in care proceedings. I have often stated this but not clearly articulated exactly why. I found some very useful exposition in ‘Rising Strong’ by Brene Brown who defines a ‘conspiracy theory’ in this way in Chapter Five of her book:

What do we call a story that is based on limited real data and imagined data and blended into a coherent, emotionally satisfying version of reality? A conspiracy theory.

She refers to the research of Jonanthan Gottschall who examines our human need to tell a satisfying story in ‘The Storytelling Animal’ and that this need is not confined to those with intellectual limitations or posters of David Icke in their bedrooms; it is a need that drives us all.

So why is this so dangerous for parents in care proceedings? Brene Brown explains it in this way:

Conspiracy thinking is all about fear-based self protection and our intolerance for uncertainty. When we depend on self-protecting narratives often enough, they become our default stories. And we must not forgot that storytelling is a powerful integration tool. We start weaving these hidden, false stories into our lives and they eventually distort who we are and how we relate to others.

When unconscious storytelling becomes our default, we often keep tripping over the same issue, staying down when we fall, and having different versions of the same problem in our relationships – we’ve got the story on repeat.

A real example – the Latvian case.

I was prompted to write this post by some email correspondence with a journalist who was concerned that a mother could not obtain a transcript of their care proceedings in 2012. There was a new baby on the way and clearly the local authority were investigating because the mother’s two elder children were removed from her care. I was immediately concerned that the focus of this mother appeared to be wishing to challenge the veracity or integrity of the 2012 proceedings. This would mean her energies would be directed to an almost certainly futile aim of attempting to challenge a court decision now four years old. What she needed to do was engage with a lawyer or a social worker, not a journalist.

A further worrying and practical example of the dangers of such diverted energies, which was ultimately destructive of the mother’s wish to be reunited with her child is in the CB Latvian case, which I discuss in more detail here. It is worth reminding ourselves of the situation in which this child was found:

I then heard a whimpering sound from a door directly in front of me. Once I had opened the door, I saw a room. In the left-hand corner of the room was a wardrobe and there were toys all over the floor. In the right-hand corner of the room against the window was a double bed that looked very soiled. On the wall beside the bed was a large area of damp and the wallpaper was coming away. There was a very strong and overpowering smell of urine and faeces in the room. I saw the child curled in an almost foetal position on the bed lying on a pillow. She sat up when we came into the room and she was holding an empty pink bottle. I went towards the child and she stood up and came towards me. I saw that her clothes were wet and that she was wearing a nappy that was falling off between her legs. Once in a different room, I could see that the child’s clothes were wet and she was shivering. The strong smell was coming from her and it was clear that she had not been changed or cleaned all day. I removed the child’s nappy to find dried and fresh faeces. The nappy was so swollen with urine that the child was unable to walk properly. There were also dried faeces on the child’s body and her skin was soaked in urine that had leaked from her nappy and gone through her clothes.

However, this case was taken up by John Hemming as an example of the ‘conspiracy theory’ that  local authorities are driven to remove children to meet ‘targets’ for adoption and that there had never actually been anything wrong with this mother’s parenting. From his discussions on Twitter it was clear that he wished to minimise the harm caused to this child and refer to it as a case about ‘not changing a nappy’ or simply the mother leaving home before her babysitter.

It is unsurprising that mother found this version of events both coherent and satisfying. Rather than address the consequences of the choices she made, which lead to her child suffering significant harm, she could instead be a ‘victim’ of a corrupt state that wanted to steal her child.

But not being able to accept what had in reality happened to her child meant that she could never show that she understood what had gone wrong and what support she needed to make things better. Her fight was always doomed because it wasn’t based on what the majority of people in her case saw as the reality.

Even more worryingly, Hemming asserts that politicians are also seduced by this ‘coherent and satisfying’ narrative.

 

EDIT – Following Discussions with Readers

I am grateful to everyone who commented. It made me think, which is the whole point. I agree that it must be very frustrating for a parent who has actually been the victim of professionals who lied or did a very sloppy job to hear me say that their dissatisfaction with the system is down to their own false internal narrative.

Of course I accept that professionals (as fellow humans) can and do behave badly. I have commented about that on this site; a particularly horrible example is the social workers who were found to have lied to the court but who then went on to get promoted! The Rotherham scandal is a clear example of what happens when assumption and prejudice harden into ‘facts’  and families and children are dismissed.

However, this post was born out of frustration with what is my now frequent experiences in court and on-line – parents for whom their are demonstrable, tangible concerns: police reports, drug and alcohol tests, scene of crime photographs of their houses, children with injuries, worried schools, doctors and members of the public who make referrals. And very often, I will find these parents will not or cannot engage with me to represent them. I hear from these parents phrases which are worryingly familiar – ‘lambs to the slaughter’ ‘no punishment without crime’. It is quite obvious who they are talking to.  I have had several clients tell me that the social worker will be paid a cash bonus if she ‘gets’ their child.

And by refusing to engage, the system just rolls on over them. They lose their children and are reduced to on line petitions or Facebook raging, in a desperate and miserable fury. But an on line petition is meaningless against a court ruling. If parents don’t engage with their case WHEN IT IS HAPPENING then they will lose.

A clear example from my own practice: I had a client who had been an alcoholic for many years and when care proceedings started had been evicted for rent arrears. The child was removed. An adoption order was sought. The client resisted because – amazingly – they had managed to stop drinking and get a new tenancy. The court was interested. This was real and serious change. Then the client said they wanted to read from a pre-prepared statement in court. It was part of Ian Joseph’s manifesto and referred to the child being stolen by the State and of social workers who got bonuses. I saw the interest draining from the Judge’s eyes. The court could not now believe the client had any real insight into the previous problems and thus the sustainability of the changes made was in real doubt. The adoption order was made.

So I am not going to apologise for pointing out to parents the very real dangers of not being brutally honest about the ‘story’ you are telling – to yourself and to others. And of course, the stories we tell ourselves are the most difficult to challenge.

But I accept it must be hard for parents who know they have been the victims of really poor professional practice to feel that their concerns are dismissed. I hope they accept that I don’t – but it might be the subject for another post.

 

Further reading/watching

An excellent study of the whys and hows of conspiracy theories by Rob Brotherton ‘Suspicious Minds: Why We Believe Consipracy Theories’

Academic study about how social media provides perfect breeding ground for conspiracy theories: Science vs Conspiracy: Collective Narratives in the Age of Misinformation [2015].

For those who doubt the malign reach and impact of conspiracy theories, see what Melanie Shaw has to say about it  and the problems they cause for investigations of real problems and abuse.