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Last week the High Court gave their ruling in the case of R (JG) v The Legal Services Commission. This related to a case where the LSC (now the LAA) would not pay more than one third of an expert’s fee. The County Court had determined that the parents were unable to pay for the report and the report was obtained on the basis that the costs would therefore be covered by the child’s Legal Aid Certificate. The LSC had based their stance on Section 22(4) of the Access to Justice Act which prevents costs from being attributed to one party purely because they are legally aided. This has been a frequent problem recently and the Law Society issued Judicial Review proceedings to highlight the difficulties that the approach of the LSC was causing.
The High Court ruled that the LSC were not normally obliged to meet the full costs of the report where the child is legally aided and the parents can’t afford to contribute to the cost. They did however acknowledge that there may be some cases where the rights of the child would require the legal aid fund to pay, although this would only arise ‘in rare cases'.
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.”
The impact is likely to become even more significant as a result of the many family cases being removed from the scope of legal aid. It will be more common to have situations where the child is legally aided but the parents are not.
Lucy Scott-Moncrieff added "Reports required from 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 enough to argue, as the LSC did, that the parents also benefit from a report. 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."