Costs of residential assessment

Lambeth London Borough Council v S and others FD TLR 19 May

In Calderdale Metropolitan Borough Council v S and another [2005] 1 FLR 751 (24/ LL p9) it was held that a pragmatic half-and-half apportionment between the parties of the costs of obtaining jointly commissioned experts’ reports was out of step with the rationale and conventional use of costs orders. The judgment gave detailed guidance on the approach to be adopted and in that case there were three respondents as well as the local authority and therefore it was appropriate that each party should pay a quarter, resulting in the Legal Services Commission paying three quarters of the cost. The question in the present case was whether the same approach applied to the cost of a residential assessment in child care proceedings or whether the cost should be borne solely by the local authority. Section 38 of the Children Act 1989 provides: ‘(6) Where the court makes an interim care order or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child …’ Such an assessment was not part of the local authority’s case; it was a power in the court to direct its own process within inquisitorial proceedings for the benefit of the child. A s38(6) direction was no more made against the local authority than it was against any other relevant party: the importation of the language of the adversarial contest into child proceedings was unhelpful. There was an obligation on the parties in child proceedings to help the court further the overriding objective; a process which was inextricably linked to the obligation on the court to ensure within its process an exploration rather than the inclusion of expert assessment and opinion that might negate the state’s case for the child’s permanent removal from his parents. There is no relevant distinction in principle between funding of a jointly instructed expert report and a s38(6) assessment. The plain meaning of s22(4) of the Access to Justice Act 1999, which provides that the court should not make any different order or exercise its discretion in any different way because a party had the benefit of public funding, suggested that the normal practice in child proceedings was to be followed. That would be to make no order as to costs absent exceptional circumstances. On a joint instruction that would involve an equal apportionment of the overall cost between the parties, funded or otherwise. That was precisely what the Calderdale criteria provided for, just as they provided for the circumstances where the local authority should take a greater or full share of the costs because of the circumstances of the case. Accordingly the costs of the residential assessment in child care proceedings does not have to borne solely by the local authority which had brought the care proceedings and can be apportioned between the parties. The Legal Services Commission has power to fund such an assessment.