Children at the centre of family law cases will face alarming uncertainty about their future as a result of a stalemate over the funding of expert witnesses in family cases, following a High Court ruling.
This is the claim of the Law Society, which has reacted with disappointment to a court ruling 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.
While the ruling acknowledges that there may be some cases where the rights of child would require the legal aid budget to pay, this would only arise 'in rare cases'.
The High Court 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 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.'
