Calderdale lessons
Date: 26 January 2007
Authors: Dorothea Gartland
Issue: Vol 157, Issue 7257
Categories: Features, Family, Child law
The issue of funding assessments proposed under the Children Act 1989 (ChA 1989), s 38(6) continues to cause difficulties for practitioners and the courts. Sheffield City Council v V (Legal Services Commission intervening) [2006] EWHC 1861 (Fam), [2006] Fam Law 833 is therefore particularly helpful to practitioners.
In Sheffield City Council the local authority successfully appealed the decision of the Family Proceedings Court which directed it to pay all the costs of a residential assessment. Instead the court directed that the costs of the assessment should be shared on a proportionate basis between the parties applying the Calderdale considerations (see Calderdale Metropolitan Borough Council v S [2004] EWHC 2529 (Fam), [2004] All ER (D) 346 (Nov)).
Funding considerations
As practitioners will know, in Lambeth London Borough Council v S [2005] EWHC 776 (Fam), [2005] All ER (D) 341 (May) the court stated that the considerations identified by the court in Calderdale concerning the funding of a jointly-instructed expert report could equally apply to assessments under ChA 1989, s 38(6) in public law proceedings. In Lambeth it was stated as correct that the assumption made in all the reported cases had been that once a ChA 1989, s 38(6) direction had been made it was the local authority who would fund the assessment, but that the specific point about who should fund the assessment had not yet been argued in a reported case.
In Calderdale the court was concerned with the costs of funding a joint expert report by a psychologist in respect of a mother and father. In his judgment Mr Justice Bodey noted the apparent lack of statutory or regulatory guidance on the approach to be taken when a court was asked to determine the funding of a joint expert report, and suggested that “the problem may be likened to the elephant: easy to recognise, but difficult to define”.
Calderdale identified a non-exhaustive set of considerations for the court to take into account to apportion funding. Following these decisions the Legal Services Commission (LSC) revised its funding code in July 2005—the Calderdale considerations are set out in the LSC Manual, Vol 1, Pt D.
Re G and further guidance
G (a child) (interim care order: residential assessment), Re [2005] UKHL 68, [2006] 1 All ER 706 led to further guidance in respect of ChA 1989, s 38(6). The House of Lords defined what was excluded under ChA 1989, s 38(6). In his judgment, Lord Scott identified an issue still to be determined:
“I want to add a word or two about the funding implications of section 38(6) directions. The statute does not identify on whom the cost of compliance with the directions is to fall [see para 20].”
The LSC children and families team prepared a position statement for the court. Lord Scott stated that this made clear:
“...first, that the LSC will not fund any element of treatment, therapy or training within a programme of assessment but, secondly, subject to that will fund the costs of an assessment, or a proportion thereof either agreed between the parties or determined by the court [para 22].”
Sheffield City Council steps
However, there have continued to be difficulties in this area and Sheffield City Council is essential reading for practitioners dealing with this issue. The judgment sets out the considerations and steps to be taken by the parties and the court to ensure a smoother resolution of applications for residential assessments under ChA 1989, s 38(6). They include:
The court should have information before it about the nature of the work proposed, its overall cost per week and the number of weeks likely to be required. Any therapy, training or treatment that is necessarily outside the ambit of the assessment under ChA 1989, s 38(6) should to be provided as a separately stated cost.
To provide this information, an anonymised thumbnail sketch of the case and the nature of the required assessment needs to have been given to the assessment provider.
If what is proposed is both assessment and treatment outside the ambit of ChA 1989, s 38(6), the court should identify the work which falls outside s 38(6) and then apportion the cost of the assessment work according to the authorities and circumstances of the particular case.
Once this information is available, the parties should attempt to agree apportionment—but, if not possible, then the court will require the information set out above and be asked to adopt a common sense and broad-brush approach.
Where an assessment includes elements outside ChA 1989, s 38(6), the court should identify this work which cannot be ordered to be done or paid for.
The issue of funding ought to be determined at the same hearing as the application for the assessment.
It is hoped these guidelines will be particularly useful to practitioners when faced with applications under ChA 1989, s 38(6) and costs arguments at court.
Dorothea Gartland is a barrister at 9 Gough Square
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