DS & Ors (Children) [2012] EWHC 1442 (Fam) (31 May 2012)

DS & Ors (Children) [2012] EWHC 1442 (Fam) (31 May 2012)

The LSC is bound by statutory funding limits and may lawfully refuse or limit funding for expert evidence in care proceedings, even where a court order is made, unless exceptional circumstances are established. Courts and practitioners must provide clear reasons for the necessity of expert evidence and for any request to exceed standard rates. Applications for prior authority must be made promptly and supported by reasons; the LSC must respond promptly and with reasons. The ultimate decision on the necessity and terms of expert instruction is for the trial judge.

Citation
[2012] EWHC 1442 (Fam)
Parties
Applicant: A Local Authority; 1st Respondent: DS; 2nd Respondent: DI; 3rd Respondent: DS (through a Children's Guardian)
Jurisdiction
England and Wales
Judgment Date
31 May 2012
Procedural Posture
Family Law Care Proceedings / Application for Prior Authority for Expert Evidence (isw) Guidance Judgment
Outcome
Guidance judgment issued; no final decision on instruction or funding of ISW made; matter remitted to allocated judge for case management decision.
Legal Topics
Care Proceedings, Expert Evidence, Legal Aid, Prior Authority, Costs of Experts
Family Law Public Funding Care Proceedings Expert Evidence Legal Aid Prior Authority Costs of Experts

Case Brief

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Parties

A Local Authority

Applicant

DS

1st Respondent

DI

2nd Respondent

DS (through a Children's Guardian)

3rd Respondent

Procedural Posture

Family Law Care Proceedings / Application for Prior Authority for Expert Evidence (isw) Guidance Judgment

Legal Issues

  1. 1 Whether the Legal Services Commission (LSC) can lawfully refuse or limit funding for an expert (ISW) in care proceedings despite a court order
  2. 2 What guidance should be given to courts and practitioners regarding applications for prior authority for expert evidence

Ratio Decidendi

The LSC is bound by statutory funding limits and may lawfully refuse or limit funding for expert evidence in care proceedings, even where a court order is made, unless exceptional circumstances are established. Courts and practitioners must provide clear reasons for the necessity of expert evidence and for any request to exceed standard rates. Applications for prior authority must be made promptly and supported by reasons; the LSC must respond promptly and with reasons. The ultimate decision on the necessity and terms of expert instruction is for the trial judge.

Court Disposition

Guidance judgment issued; no final decision on instruction or funding of ISW made; matter remitted to allocated judge for case management decision.

Orders

  • Guidance provided to courts and practitioners on applications for prior authority for expert evidence in publicly funded family proceedings.
  • No determination on the merits of instructing the ISW; decision reserved for trial judge.