Judge: High Court (Family Division) (Mostyn J)
Citation:  EWHC 564 (Fam)
This case concerned an application for a costs allowance under Schedule 1 to the Children Act 1989 to fund representation and experts’ fees in a private children dispute. MG and JG, a same-sex couple, decided in 2005 that they wanted a child. In 2006, MG was impregnated artificially with JF’s sperm. The child, JFG, was born in 2007. It was agreed that JF would be named on the birth certificate and that JG would be a “legal step-parent” with the idea that all three (MG, JG and JF) would have equal legal parenting rights. In October 2012, serious difficulties arose in relation to the contact of JF to JFG. Conflict erupted on many fronts and contact completely broke down. MG and JG later separated. JF issued an application for a contact order and the case was due to be set down for a five day final hearing.
Mostyn J was clearly of the view that it was impossible to expect MG and JG to be able to represent themselves having regard to the factual and legal issues in the case. However, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) had removed legal aid from private law children proceedings save in those exceptional cases where domestic violence is a central feature. Thus, MG and JG were no longer eligible for legal aid funding. JF was of reasonable means and privately paying for legal representation. JFG, aged 7, was represented in the proceedings by a guardian and funded by legal aid.
Although MG and JG were not entitled to an order for costs, they were entitled by operation of the provisions of Schedule 1 to the Children act 1989 to seek an order for costs funding from JF. Mostyn J ordered that JF should pay 80% of each of the claims of MG and JG for legal representation and that in future JF should pay 80% of all professional costs in respect of therapeutic work. MG and JG would each pay 10% of such costs. Whereas MG and JG could not reasonably or realistically be expected to contribute more given their means, Mostyn J was satisfied that JF could bear the costs without undue hardship.
In respect of the expert evidence, Mostyn J ordered that the fees should be paid for in their entirety by JFG and that such fees were a reasonable charge on the legal aid certificate. Although the normal rule is that the cost is to be apportioned equally, MG and JG did not have the means to contribute and JF was already shouldering a great burden of the costs. Therefore, it was just and reasonable that JFG bear the costs of the expert evidence, whether or not he was legally aided, because these fees were being incurred primarily for his benefit.
Mostyn J recognised that ordering JF to pay over £20,000 plus 80% of the cost of future therapeutic work could be said to be “grossly unfair”. However, it was deemed to be necessary because “that is where the government has left him.” Mostyn J endorsed previous judicial criticisms of the Government’s legal aid cuts and described it as “a sorry state of affairs.”
It is easy to imagine similar concerns arising in COP cases. Mostyn J’s remarks are reminiscent of Baker J in the COP case of A Local Authority v M, E and A  EWCOP 33 to the effect that “[o]ne lesson of this case is that, if parties such as E and A are to be unrepresented in hearings of this kind, be it in the Court of Protection or in the Family Court, the hearings will often take very considerably longer than if they were represented. Denying legal aid in such cases, is thus, a false economy.”
The position in relation to COP cases is even more parlous, however, because there is no equivalent in the COPR to Schedule 1 to the Children Act, and the COP therefore does not have the power to direct that a party to the proceedings pay all or part of the costs of any of the other parties to secure representation. Ps may be in a special position: it is, for instance, absolutely clear that the Official Solicitor cannot be compelled to act as litigation friend unless he is put in funds to instruct solicitors (and continues to be put in such funds: Bradbury v Paterson  EWHC 3992 (QB), and the position in medical treatment cases is that the OS will not act unless the NHS Trust making the application agrees to pay half of his costs, although this simply reflects custom and practice: see An NHS Trust v D  EWHC 886 (COP)). Family members and others who may be parties to proceedings, however, enjoy no such privileged position; we will wait with interest to see how the Court of Protection will proceed in a case where it is clear that the lack of representation of such a party due to non-availability of legal aid will give rise to a real risk of a breach of their rights under Articles 6 and/or 8 ECHR.
As regards expert evidence, in the Court of Protection, like the Family Court, the normal rule for funding expert evidence is that costs are shared equally between the instructing parties: see COP Rule 131(5). However, where some parties are family members acting in person, it is conceivable that the COP may order expert evidence to be funded by one party, either a party with means or P where P is being publicly funded. For more detail in this regard, interested readers are referred to JG v The Lord Chancellor & Ors  EWCA Civ 656 and the discussion at paragraphs 6.92-6.103 and 13.68-13.73 of the LAG Court of Protection Handbook.