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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W & Ors v Legal Services Commission [2000] EWCA Civ 225 (20 July 2000)
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Cite as: [2000] EWCA Civ 225

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Case No: QGCOF 2000/0266/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL ( CIVIL DIVISION)
ON APPEAL FROM
THE HON. MR. JUSTICE SCOTT BAKER
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
20th July 2000

B e f o r e :
THE PRESIDENT
LORD JUSTICE THORPE
and
MRS. JUSTICE
SMITH
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W and Others

Appellant


- and -



THE LEGAL SERVICES COMMISSION
(formerly THE LEGAL AID BOARD)

Respondent


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Mr. R.Spon-Smith (instructed by
Richmond Anderson Goudie of Flake Cottages, Cone Terrace, Chester-le-Street, Co. Durham DH3 3QH for the Appellant)
Mr. O. Wise (instructed by The
Legal Services Commission, 85 Gray's Inn Road, London WC1X 8A for the Respondent)

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Judgment
As Approved by the Court
Crown Copyright ©


The President: The applicants appeal from the decision of Scott Baker J. given on the 5th November of 1999. He refused to grant Judicial Review of the refusal by the Legal Aid Board to grant legal aid to three children who were parties to proceedings under Part IV of the Children Act 1989. The application for legal aid was made by their solicitor appointed by their guardian ad litem. Buxton LJ. on the 9th March 2000 gave permission to appeal.
The short facts are that the three children who are the applicants are 12, 10 and 6. On the 15th October 1996 care orders were made to the local authority. At that stage it was hoped that the children might be rehabilitated to their mother. In due course the local authority changed their care plan and considered it was in the children's best interest to be placed for adoption and that their contact with their mother should be brought to an end. The local authority therefore made an application under section 34(4), which states:
"On an application made by the authority or a child, the court may make an order authorising the authority to refuse to allow contact between the child and any person who is mentioned at paragraph (a)-(d) of sub-section 1 and named in the order"

The children were parties to the care proceedings and were represented by a guardian ad litem Mr. PA. On the application under Section 34(4) being made by the local authority the court again appointed Mr. PA as the childrens´ guardian ad litem. That appointment was by virtue of Section 41 of the Children Act which states:

"(1) For the purpose of any specified proceedings, the court shall appoint a guardian ad litem for the child concerned unless satisfied that it is not necessary to do so in order to safeguard his interests.
Sub-section (2). The guardian ad litem shall (a) be appointed in accordance with the rules of court; and (b) be under a duty to safeguard the interests of the child in the manner prescribed by such rules."

The Family Proceedings Rules 1991, which are for this purpose in identical terms to the Family Proceedings Courts(Children Act 1989) Rules set out in Rule 4.10 the appointment of the guardian. In Rule 4.11 the powers and duties of the guardian ad litem include under 4.11(2) to:


"(a) appoint a solicitor to represent the child unless such a solicitor has already been appointed, and
(b) give such advice to the child as is appropriate having regard to his understanding and, subject to Rule 4.12 (1)(a), instruct the solicitor representing the child in all matters relevant to the interests of the child, including possibilities for appeal arising in the course of the proceedings."
By 4.11(4) the guardian ad litem shall unless excused by the court attend all directions appointments in and hearings of the proceedings and advise the court......... Rule 4.11 sets out a number of other duties to be carried out by the guardian ad litem. By Rule 4.12(1):
"A solicitor appointed under Section 41(3) or in accordance with Rule 4.11(2)(a) shall represent the child -
(a) in accordance with instructions received from the guardian ad litem (unless the solicitor considers, having taken into account the views of the guardian ad litem and any direction of the court under rule 4.11(3), that the child wishes to give instructions which conflict with those of the guardian ad litem and that he is able, having regard to his understanding, to give such instructions on his own behalf in which case he shall conduct the proceedings in accordance with instructions received from the child), or ........."
By Rule 4.12(2):
"A solicitor appointed under section 41(3) or in accordance with rule 4.11(2)(a) shall serve and accept service of documents on behalf of the child in accordance with rule 4.8(3)(a) and (4)(a), and, where the child has not himself been served and has sufficient understanding, advise the child of the contents of any documents so served."
4.14 deals with directions for the conduct of the proceedings.
4.15 deals with the timing of proceedings.
The result of Section 41 and either the Family Proceedings Rules or the Family Proceedings Court Rules is that in every court with Children Act public law jurisdiction, that is to say the Family Proceedings Court, the County Court, and the High Court, the same procedure is in place. The effect of an application under Section 34(4) is to trigger the appointment by the court of a guardian ad litem who in turn is obliged to appoint a solicitor who with the guardian ad litem represents the child for the purpose of the specified proceedings. The appointment of a solicitor is not a matter of choice. Unless the child wishes to instruct his own solicitors if he is of sufficient age and maturity, the guardian and the solicitor together act for the child.
In the present case Mr. PA appointed the solicitor to act for all three children. The solicitor made an application for legal aid. On the 23rd October 1998 the solicitor's application for legal aid on behalf of the children was refused by the Legal Aid Area Manager. That refusal was appealed to the Legal Aid Board area committee, and was refused on appeal. On the 1st March 1999 legal aid was granted to the children to apply for Judicial Review of the refusal of legal aid in the Section 34(4) contact proceedings. The grounds of refusal by the Legal Aid Manager were, in respect of each child:
"The reason(s) for this is that it appears unreasonable that you should receive legal aid in the particular circumstances of this case. It is considered that the grant of representation is not justified having regard to the issues of the case, the benefit to be obtained or the need for you to be separately represented as a party."
On appeal the solicitor for the children set out the merits of the appeal, that the children's wishes might not be the same as those of the local authority, that the children needed to have their own representative to put forward any view different from that which the guardian might advance, that the case was opposed and complex and involved a significant legal issue. The notice of appeal by the solicitor did not indicate that the solicitor was obliged to be appointed in accordance with the requirements of the 1991 Family Proceedings Rules. In a letter dated 4th December 1998 from the Legal Aid Board to the solicitor for the children the reasons for refusing the appeal were set as:
"the reason for this is it appears unreasonable that you should receive legal aid in the particular circumstances of the case. No need for separate representation".
Mr. Claxton, who was Chairman of the Area Committee of the Legal Aid Board which determined the appeals against the refusal of legal aid in respect of these three children, said in his affidavit of 11th September 1999 at paragraphs 8 and 9:
"The view of the Area Committee was the question whether the mother should continue to have contact would be resolved without legal representation for the children provided under the Legal Aid Act 1988 and that the civil legal aid merit test was not met. The local authority would act through its solicitor and the mother, if she wished to pursue her application for contact to [the three children], could be represented under a Legal Aid Certificate of statutory means and merits test to be met by her. We could see no good reason why the children should be separately represented under the Legal Aid Act 1988. If the guardian ad litem required legal assistance to put forward any case which might not otherwise be put there was insufficient justification for this having regard to the civil legal aid merits test as there would be one or two legal representatives from the other parties, and the guardian, who would report independently on the children's futures.
Accordingly the unanimous decision of the Area Committee was that legal aid should be rejected because it was unreasonable that the applicants should be granted representation."
The Legal Aid Board was at the time bound by the provisions of the Legal Aid Act 1988 and the regulations thereunder. Since April 2000 the Act and the Legal Aid Board have been superseded by the Access to Justice Act 1999 section 11 and the Board has become the Legal Services Commission. We are however still dealing with the legal position under the 1988 Act. Section 15 of the 1988 Act set out the duties of the Legal Aid Board in respect of applications for legal aid as follows:
(1) representation.... shall be available to any person whose financial resources are such as, under regulations, make him eligible for representation under this Part."
(2 ) A person shall not be granted representation for the purposes of any proceedings unless he satisfies the Board that he has reasonable grounds for taking, defending or being a party to the proceedings."
(3 ) A person may be refused representation for the purposes of any proceedings if, in the particular circumstances of the case, it appears to the Board (a) unreasonable that he should be granted representation under this Part, or ........."
and regulations may prescribe the criteria determining any questions
arising under paragraph (b) above.
There were a number of amendments to the Legal Aid Act after the introduction of the Children Act 1989. The effect of one of those amendments was that in a case of conflict between the guardian ad litem and the child, if a child had a solicitor representing him through legal aid the guardian was not eligible for legal aid (Section 15(3A). By section 15(3B) representation and therefore legal aid must be granted to a child in respect of whom an application is made under the secure accommodation provisions in Section 25 of the Children Act. Under Section 15(3C) representation and therefore legal aid must be granted to a child to cover proceedings for an order under Section 31 (a care or supervision order), an order under Section 43 (a child assessment order); an order under Section 44 (an emergency protection order); or an order under Section 45 (extension or discharge of an emergency protection order). That representation extends to appeal in respect of any of those proceedings before the court. The group of applications in respect of which there is a mandatory grant of legal aid for representation does not include an application for leave to terminate contact between the child and the parent, not even for the child. An application under Section 34(4) is therefore an application in respect of which the Legal Aid Board has a discretion whether to grant or to refuse legal aid. In the present case the issue of financial resources available to the child does not at this stage at least arise. It was not suggested by the Area Committee or on this application that the children did not have reasonable grounds for being parties to the section 34 proceedings and they were automatically parties to them by virtue of the Children Act and the Family Proceedings Rules. The only ground upon which the Legal Aid Board might properly exercise its discretion not to grant legal aid was the issue of reasonableness - if it appeared to the Board unreasonable that they should be granted representation. It was on that ground that the Area Committee decided not to grant legal aid.
Scott Baker J. in refusing relief under Judicial Review referred to an amendment issued by the Legal Aid Board to its guidance in granting legal aid under the merits test in May 1997. The guidance was as follows:
"The requirement of a guardian ad litem to appoint a solicitor in certain specified public law cases (for which legal aid is available on a means and merits tested basis) does not of itself mean that the civil legal aid merits test is satisfied on an application for legal aid by a child. If the solicitor is instructed by the guardian ad litem legal aid is only likely to be granted where, having regard to the particular circumstances, legal representation under a legal aid certificate is justified e.g. due to the matter being opposed or involving a significant point of law."
It is clear that the Legal Aid Board was concerned about unnecessary or duplicated representation as Scott Baker J. pointed out in his judgment. The judge also had his attention drawn to the Guardian ad litem and Reporting Officers (Panels) Regulations 1991 and in particular to regulation 9(1), which states:
"Each local authority shall defray the reasonable expenses incurred in respect of relevant proceedings by members of the panel established in respect of their area and pay fees and allowances for members of such panels in respect of relevant proceedings."
The judge formed the view that the local authority's obligation to defray the reasonable expenses by members of the Guardian Ad Litem Panel included the costs of legal representation on behalf of the child. He held that regulation 9(1) was sufficiently widely drawn to cover the costs of a solicitor representing the child, and was an alternative source of funding.
Mr. Spon-Smith representing the children both before the judge and before this Court pointed out firstly that regulation 9(1) had never been to his knowledge relied upon as an alternative source of funding to legal aid. It was not part of the reasoning of the Area Committee in the present case and it was first raised in the present case as a defence to the application to move for judicial review. Scott Baker J. said that the question of alternative source of funding was:
"relevant to the issue of principle taken by Mr. Spon-Smith namely that because the obligation to appoint a solicitor is in effect mandatory because there is no other source of funding legal aid must be granted otherwise the appointment of a solicitor would be rendered nugatory and Parliament's intention frustrated. Because I believe there is this other source of funding I am unable to accept Mr. Spon-Smith's argument. ........"
He turned to the question of rationality of the decision and said:
"It seems to me that the appointment of a solicitor and `having reasonable grounds for taking, defending or being a party to proceedings' are two entirely different things."
He said at page 10 of his judgment that the Legal Aid Board has to look at the particular facts of this case as put before it and consider whether the expenditure of public funds is justified:
"In my judgment the Area Committee was entirely justified in coming to its conclusion that there was no good reason why separate representation should be provided for the children under the Legal Aid Act 1988 I am certainly quite unable to conclude the decision to refuse legal aid was irrational or unreasonable on Wednesbury grounds. As I have already indicated, I do not accept the argument that in principle legal aid should, in the absence of private funds, be granted in every case. Accordingly the decision to refuse legal aid was a perfectly lawful one."
On appeal to this Court Mr. Spon-Smith repeated the arguments that were set out in the judgment of Scott Baker J. He argued that the requirements under Section 41 of the Children Act and the Family Proceedings Rules obliged the Legal Aid Board to grant legal aid for representation. He accepted however that under the provisions of Section 15 the Legal Aid Board retained a discretion whether to grant or refuse legal aid. He pointed to the clash between the requirements under the Family Proceedings Rules and the requirements under the Legal Aid Act.
Almost all the important areas in which one would expect that a child ought to be represented in court in a public law case are covered by the mandatory grant of representation by way of legal aid in Section 15. It does lead one to wonder whether the significance of contact proceedings in public law cases has been overlooked. In particular Section 34(4) gives the court power to bring a relationship between a child and the natural family permanently to an end usually with a view to adoption. This termination of contact is a determinative point in a child's life. We were told prior to the May 1997 guidance that legal aid was routinely granted to solicitors appointed by guardians ad litem on behalf of children. In my view the May 1997 guidance was not as helpful as it might have been, bearing in mind that it pays lip service only to the requirement in the 1991 Rules that a solicitor shall be appointed. It follows from the 1991 Rules that someone has to pay. The use of Regulation 9(1) was not suggested in the May 1997 guidance. The question has to be asked, if the guardian ad litem is under an obligation to appoint a solicitor by the Rules and there is no alternative funding unless the child is rich (which is improbable in these sort of cases) whether the solicitor is to be funded by legal aid or not at all. That problem is not raised in the guidance. On the contrary the legal aid managers and area committees appear to have been reminded to be more stringent in permitting multiple representation of parties in any case where they have a discretion. It is clear to me therefore in the present case that both the Legal Aid Manager and the Area Committee were focusing on multiple representation and the potential waste of public money and were ignoring the requirement of the guardian to appoint a solicitor. The failure to take account of the requirement to appoint a solicitor was understandable in the light of the notice of appeal to the Area Committee which concentrated upon the merits of the particular case and did not alert the Area Committee to the special position of the guardian and the solicitor under the Rules. I have considerable sympathy with the Area Committee for not considering that matter even though we are told that the particular committee which sat on this matter was experienced in family matters. If this had been a question of relevant facts which the solicitor for the children had failed to put to the Area Committee I should have probably come to the view that the Area Committee could not be faulted in their decision making process by the lack of information. The failure of the Area Committee to take into account the special legal provisions for the proper representation of children in Part IV proceedings is however in my view an entirely different matter. The mandatory appointment of a solicitor for the children is a highly relevant consideration which, if it had been put into the exercise of discretion by the Area Committee, was likely to have had a considerable effect upon their decision. Indeed I would go so far as to say that their decision might well have gone the other way. We are told that for the future The Legal Services Commission will not take alternative sources of funding into account in cases of this sort. It would appear that alternative sources of funding was not taken into account by the Legal Aid Board in the past and the question as to whether Regulation 9(1) should cover these costs was raised by Counsel only by way of reply to the application to move for Judicial Review. In the circumstances I do not think that the issue of alternative funding is of any real relevance to the decision on Judicial Review. I am inclined to the view that the Judge's interpretation of Regulation 9(1) was right and the wording is wide enough to include legal costs as well as the expenses and fees of the guardian ad litem. Even if it is wide enough it is a grey area as Mr. Wise accepted on behalf of the Legal Aid Board. The judge was however in my view unduly influenced in the conclusion to which he came by the possibility of alternative funding through Regulation 9(1).
Insofar as there is a clash between the Family Proceedings Rules and the Legal Aid Act Section 15, Mr. Wise has submitted that the Act must take priority. In my view he is right. The Legal Aid Board retains a discretion whether to grant or to refuse legal aid to the solicitor acting on behalf of children in a Section 34(4) application but in reality in exercising that discretion the Board ought to have taken into consideration the requirement to appoint a solicitor and that the possibility of multiple representation was recognised by the Family Proceedings Rules to be a feature where children were parties.
In my view, a Legal Aid Manager or Area Committee ought to have been very slow to find that there should be no grant of legal aid at all. There might be special circumstances in which to grant legal aid would not be appropriate though for the moment I find it difficult to visualise what those circumstances might be. I can however foresee that it would be entirely appropriate for the recipient of legal aid, that is to say the child, to be put on terms. Anyone in receipt of legal aid, even a child, has to come within the legal aid statutory structure and subject to terms and conditions so long as they are suitable. In a case where the merits of separate representation are not strong and where in particular as in this case the guardian's view was the same as the local authority it would be entirely appropriate for the legal aid certificate to impose conditions or restrictions. I have in mind for instance a limit on the amount of money to be expended, a limit on the number of steps before further approval is sought. But entirely to deny legal aid on the ground of multiple representation does not seem to be in my view in accordance with the philosophy of the Children Act legislation as expressed in the Act and the Rules. I, therefore, consider that the failure of the Area Committee to consider the position of the guardian and the obligatory appointment of the solicitor was so fundamental a flaw in their exercise of discretion as to vitiate their decision.
I agree however with Thorpe LJ, whose judgment I have read in draft, that the Court exercising its power under section 41(1) should examine carefully whether in the particular case a guardian is necessary to safeguard the interests of the child. The applications under section 34(4) were made in September 1998. We are however told that as a result of these Judicial Review proceedings, the important decision as to the long term future of three children of 12, 10 and 6 has been deferred again and again and there has not yet been a decision on any one of these three children. Although the guardian ad litem might well have expected to have been granted legal aid and to have the children whom he represents legally represented, on the facts of this case, the failure to have such legal representation was not and ought not to have been treated as an absolute bar to making decisions about the long term future of these children. In particular B is only 6 and a delay of not far short of two years in taking proper steps to deal with him is a particularly sad outcome of the present proceedings.
It falls to us to consider what relief if any should be granted. Although we are told that the superseding of the Legal Aid Board by the Legal Services Commission would not prevent this matter being sent back for further consideration by an Area Committee, the state of affairs in relation to the children has got to such a point that to remit the applications for a certificate for re-consideration by the Area Committee would add a delay that would be in my view incompatible with the welfare of the children. On the relatively simple facts of this case a judge would probably be able without difficulty to make a decision about whether to terminate the contact between the mother and these children without the attendance of solicitors for the children. The guardian ad litem could give the relevant evidence. If the facts have changed and legal representation is necessary a new application could be made for legal aid. In the case of B we understand that an application to free for adoption has been made and no doubt an application for legal aid will be made, or has already been made on his behalf. In the freeing application the question of any future contact to his mother would be likely to be raised and to be a relevant consideration.
By coming to this conclusion, I do not wish it to be understood that the decision of this court not to grant relief is to be taken as a precedent for a future refusal to grant legal aid nor that a child litigant should be deprived of the legal representation which he or she ought to receive. But section 1(2) of the Children Act states that delay is detrimental to the welfare of the child. That welfare demands that this part of the case be concluded as quickly as possible. At this stage the requirement for the Court to deal with the contact to the mother is now of greater importance than the guardian having the assistance of a solicitor on behalf of the children.
It does appear that the new criteria to be applied by the Legal Services Commission include very similar provisions to those in Section 15. It would be highly desirable for the Legal Services Commission and the Family Policy Unit of the Lord Chancellor's Department to look at section 34 applications and their omission from the mandatory requirements elsewhere in section 15. It does not appear to me to be desirable that there should continue to be this uneasy tension between the obligation of the guardian to appoint a solicitor and the exercise of discretion by the Legal Services Commission as to whether legal aid should be provided to pay for the solicitor so appointed.
I would therefore hold that the decision of the Area Committee of the Legal Aid Board cannot stand but in the special circumstances of this case the matter should not be remitted to the Area Committee for a reconsideration of the application for legal aid and there should be no relief on the application to move for Judicial Review.
Lord Justice Thorpe: I also conclude that this application should be dismissed although it has served to draw attention to the inter-relationship between the Children Act 1989, and regulations made thereunder, and the Legal Aid Act 1988, as amended to accommodate the provisions of the Children Act 1989.
There can be little doubt that the legislative scheme of the Children Act 1989 was to ensure that in public law proceedings children whose future the court surveyed would be joined as parties to the proceedings and would have the benefit of both a guardian ad litem and a solicitor, who might in turn brief counsel. Of course if the children were to be joined then, being under a disability, they would require a guardian ad litem in accordance with the ordinary principles of litigation requiring protection for those under disability. But in reality the guardian ad litem was to be more than a litigation guardian, being drawn from the panel, most if not all of whom would be qualified and independent social workers. This legislative objective was of course achieved by the provisions of section 41 of the Children Act 1989 and Regulations 4.10 and 4.12 of the Family Proceedings Rules 1991. There can equally be little doubt that the legislative intention was that the legal aid fund would meet the legal costs of the separate representation of children involved in public law proceedings. The amendments to section 15 of the Legal Aid Act 1988 required the grant of legal aid in most categories of public law proceedings, although not in the determination of applications under section 34(4) of the Children Act 1989. Section 34 is a fundamental section of the statute in that it gives expression to the legislative intention to impose upon local authorities a duty to ensure that children in care maintain contact with family members. It seems to me therefore an open question as to whether the omission of section 34(4) applications from the categories of Children Act proceedings in which the grant of legal aid was to be mandatory was intentional or accidental. However it is that omission that gives rise to the awkward inter-relationship between the two statutes.
For at first sight it is difficult to reconcile the two statutory schemes. One requires the appointment of a guardian in almost all public law proceedings and equally requires that guardian to appoint a solicitor forthwith. Once appointed the solicitor has the obligation of carrying through the proceedings to their completion, ordinarily acting on the instructions of the guardian. How was that to be funded other than by the Legal Aid Board? But equally how was the Legal Aid Board to apply the triple test, including the all important test of reasonableness, unless in the exercise of an independent discretion? I believe that the solution to the conundrum can be found in a joint or several application of three possible approaches.
First the court itself should exercise a more critical judgment in determining in accordance with the provisions of section 41(1) of the Children Act 1989 whether the appointment of a guardian is indeed `necessary to do so in order to safeguard his interests'. Of course the Legal Aid Board is unlikely to be able to make submissions on that question and I am of the opinion that it is accordingly incumbent upon the court to give careful consideration to the preservation of public funds in exercising its discretion under section 41(1).
Second I am of the opinion that upon the exercise of its discretion as to whether or not the grant of legal aid is reasonable to enable the child to be heard upon the determination of an application for the termination of contact, the Board, and any area committee to which a Board decision is appealed, must give particular weight to the consideration that the joinder of the child as a consequence of the court's decision to appoint a guardian ad litem and the subsequent appointment of a solicitor are not acts of will but acts in compliance with statutory requirements.
Third I am of the opinion that once the child becomes a legally aided litigant as a consequence of a grant they must be subject to the constraints and restrictions of the regime as well as any other litigant. Thus it seems to me that it is open to the Board or Commission to impose conditions and limitations in relation to the conduct of the litigation by the guardian ad litem on behalf of the child. This point was developed by my lady in argument and I am in complete agreement with it. In appropriate circumstances I do not see why the grant of legal aid to the child should not be limited to, say, obtaining counsel's opinion on the merits or, say, not to extend beyond interlocutory steps without express extension. By the more extensive and creative use of these three mechanisms it seems to me lies the potential to harmonise the inter-relationship between the seemingly conflicting statutory provisions.
Turning now to Regulation 9 of the Guardians Ad Litem and Reporting Officers (Panels) Regulations 1991, there can be little doubt that they were certainly not envisaged as a mechanism for loading the guardian's litigation costs upon the local authority. I am in no doubt that they were intended to enable the guardian to recover from the relevant local authority a proper fee for the extensive work in each individual case, certain expenses, such as motoring expenses, which might be recoverable by reference to specific allowances, and proper disbursements recoverable under the heading of expenses. The contention that the litigation costs of the solicitor acting for the children within the litigation might be recoverable as such expenses is a contention that was not raised prior to the hearing before Scott Baker J and it has subsequently been relegated by the Board's statement in this court that they do not intend to advance this alternative funding contention under the replacement regime that came into force in April 2000. To that extent it could be said to be no longer an issue in this appeal. However since Scott Baker J expressed the firm conclusion that the Board was entitled to succeed on this alternative ground I consider it desirable to express my reservations. Whilst it must be admitted that Regulation 9 is drafted in wide terms, I prefer Mr Spon-Smith's submission that `reasonable expenses incurred in respect of relevant proceedings by members of the panel' mean precisely that and no more. The party to the litigation is the child. It is he who is in the client relationship with the solicitor. It cannot be said that the costs of the action are expenses directly incurred by the guardian, although of course it is upon the guardian's instructions that the solicitor acts. I would limit the construction of `reasonable expenses' to those directly incurred by the guardian, by which I mean those expenses for which he is contractually liable to some third party. Mr Spon-Smith has drawn attention to the critical comment on Scott Baker J's conclusion from Mr Richard White in the New Law Journal. There is obvious force in his observation that it would be highly undesirable if the local authority, almost invariably the applicant for the power to terminate or curtail family relationships, should at the same time be discharging not only its own litigation costs but also the costs of what may in many instances be an opposing party. Although there may be no actual perversion of justice it is not difficult for the suspicious mind to perceive unfairness in such an arrangement. I would therefore hope that the alternative funding contention will not be resurrected in future litigation.
It seems that the Board's decision to refuse legal aid in the present case was either inspired or encouraged by the policy statement of May 1997. Whilst I have every sympathy for the Board's determination to curtail wherever possible the huge financial burden of funding public law proceedings, I am of the opinion that the issue of the policy statement of May 1997 was at the least unduly controversial. The statement is too obvious an encouragement to concentrate on some sort of assessment of outcome without an equal emphasis on the balancing consideration that the application is compelled by a statutory scheme. I am in no doubt that the issue of such a policy statement in the heady days of the commencement of the Children Act 1989 would have been unthinkable. I would hope that it should prove possible to devise a less controversial and more balanced statement of policy in reaction to the judgments in the present appeal.
Mrs. Justice Smith: I also dismiss the application.
Order: Application dismissed. No order for costs.
(Order does not form part of the approved judgment.)


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