President’s guidance on applications for prior authority in care proceedings

Richard Ager analyses the recent guidance given by Sir Nicholas Wall, President of the Family Division, on the instruction of experts in care proceedings.

In a case decided on the 31^st May 2012, Sir Nicholas Wall, President of the Family Division gave guidance to the courts, legal advisers and LSC in which applications for prior authority are made to incur the costs of experts’ fees. In this particular case, the issue of outstanding applications for prior authority had delayed the case from December 2011 until May 2012.

A Local Authority v AS and others [2012] EWHC 1442 (Fam) deserves close reading as the President analyses the law on the instruction of experts, the regulations which constrain the LSC and identifies a common problem in proceedings, that of the delay caused in the instruction of experts as ordered by the court by the need to apply for prior authority.

In his guidance the President says that the standard wording ‘ the cost of the assessment is a reasonable and proper charge to the parties’ public funding certificates’ should no longer be used. He urges the court to identify in its order by recital or agreement the reasons for instructing a particular expert. He reiterates that the court must look to the expertise in the court room already through the Local Authority and the Guardian in the exercise of their statutory functions and then consider whether the instruction of an expert is necessary. He then suggests a form of order in the following terms (depending on the facts of the individual case):

• The proposed assessment and report by X (as set out in paragraph 2 of this order) are vital to the resolution of this case.
• This case is exceptional on its facts.
• The costs to be incurred in the preparation of such reports are wholly necessary, reasonable and proportionate disbursement on the funding certificates of the publicly funded parties in this case.
• The court considers X’s hourly rate of £y and the estimated costs of the assessment report to be reasonable in the context of (his) qualifications, experience and expertise.
• The field in which X practises, and the particular expertise which (he) brings to bear on cases involving (subject) are highly specialised. There is no realistic prospect of finding an alternative expert with the necessary expertise at lower fee.
• The court considers that any further delay in order to give the LSC the (further) opportunity to consider an application for prior authority to incur the costs of the proposed amendment or report would be wholly outside the child(ren’s) timescale(s).

With the soon to be statutory 6 month time limit for care proceedings, clearly glitches in the system such as the delay that can be caused by the need to apply for prior authority need to be ironed out. This may well assist.