Select Committee on Lord Chancellor's Department Written Evidence


Written evidence submitted by Stephen King, Mills & Reeve Solicitors (CAF 1)

INQUIRY INTO THE WORK OF CAFCASS

  Having read about the inquiry into the work of CAFCAA, which the Committee on the Lord Chancellor's Department is currently organising, I would be grateful if this letter could be accepted as a written submission on a matter pertaining to the funding arrangements of CAFCAA.

  This letter is in four parts.

  1.  Background.

  2.  Issues around funding.

  3.  Present rules and case law.

  4.  Submissions.

1.  BACKGROUND

  I am a partner with this large regionally based law firm. I and other lawyers in the firm have come across the work of CAFCASS in our roles as lawyers to a number of NHS Hospitals. My firm, like other law firms acting for such institutions, provides an emergency service which is mostly used by the client hospitals when urgent matters relating to consent to treatment arise, usually outside normal business hours, and often where the patient, the subject of the consent issue, is in a parlous state.

  Dealing with such matters requires not only up to date knowledge of the law on matters of consent to treatment, human rights, and the legislation relevant to the operation of the NHS, it also requires up to date knowledge of the court system and in particular the workings of the Family Division, out of hours services, including the role of CAFCASS.

  Like other firms acting for similar clients, we have particular knowledge in this area and are able to advise the clients appropriately, including the giving of advice about whether it is appropriate for our client, the court, or the patient or their advisers or relations, to seek the involvement of CAFCASS.

  The issues which typically arise in the matters I become involved with, revolve around the capacity of the patient to give consent. The patient may be a minor and therefore lack capacity, or an adult who by virtue of mental illness or injury may lack capacity, perhaps temporarily. There are issues around what is in the best interests of the patient, this issue usually encompasses clinical concerns and the availability or non availability of treatment.

  There may also be issues about representation, such as whether the patient is separately represented or ought to be. Whether the interests of the patient conflict with those of the patient's parents or other relations.

  Finally there is the almost ever present issue that justice has to be seen to be done, which often means that notwithstanding the expertise, know how and experience of firms such as mine, our access to the most eminent expert assistance and legal counsel, there are occasions where there is an obligation to involve CAFCASS if only to allow the court and the other parties to satisfy themselves as to the reasonableness of what is proposed.

2.  ISSUES AROUND FUNDING

  An article in The Lawyer dated 24 February 2003 indicated that the present budget for the CAFCASS was £84.5 million and that CAFCASS would like that to be raised to £107 million for the next financial year. Mr Charles Prest the legal director was reported to say that "outsiders", by which I believe he means those familiar with, but not part of CAFCASS, would say that CAFCASS is under funded. He does not disagree that CAFCASS is under funded. He is reported to go on to say that more money would only be made available for CAFCASS if:

  (i)  There was a sudden improvement in the economy.

  (ii)  If the funding received by the LCD from the Treasury was increased.

  (iii)  If CAFCASS received a greater amount of the Lord Chancellor's Fund.

  At present there are a raft of cases, which I will refer to as the consent cases, where CAFCASS seeks a contribution towards it's costs from those persons, bodies, or organisations, who either invoke the involvement of CAFCASS in any particular case, or find themselves one of a number of parties to a case, involving CAFCASS. Commonly the contribution sought is 50% of the costs actually expended by CAFCASS.

  This claim for a contribution towards the costs is not typically made from what I might describe as the lay party, the patient or their family. Instead it is commonly sought, from the institution, in my cases the health authorities and NHS Trusts where a patient might be located.

  Whilst the courts have in the past made it clear that each case must be decided on its own facts, commonly up to a 50% contribution is ordered against the institution involved in these consent type cases.

  This convention of allowing a 50% recovery appears to be less a reasonable or fair award against a party invoking the involvement of CAFCASS, than a matter of policy, adopted by the courts, on the understanding that unless CAFCASS can be allowed to recover a proportion of its running costs, it cannot pay its way. Not being able to pay its way must be a considerable burden for such a necessary public service and a concern which, commonly with other public services, ought not to exist. In short CAFCASS should be funded sufficiently to operate free of concern about who pays for its service, other than the taxpayers in general.

3.  PRESENT RULES AND CASE LAW

  With the consent type cases I get involved with there are many well known cases which can be cited to illustrate the points I have made above.

  The starting point for CAFCASS and my clients is that the Civil Procedure Rules 1998 Rule 44.3(1) make it clear that the court has a complete unfettered discretion as to a) whether to order costs to be paid by one party to another b) the amount of such a costs order and, c) the date of payment of a costs order (enclosure 1).

  In Re G (A Minor) [1982] 1WLR 438 the Court of Appeal made it clear that it is at the complete discretion of a trial judge as to whether the official solicitor (the predecessor to CAFCASS in these cases) is able to recover his costs or a proportion of his costs from the parties. Justice Ormrod said that:

  "There is no rule of practice in wardship in custody cases which requires the court to order a plaintiff in wardship proceedings to pay the official solicitors costs."

  In ReP (A Minor) [1993] 2FLR 411 the official solicitor was appointed by the court to represent the child's interests in a wardship case. He was able to recover his costs from the Local Authority despite the fact that they had not appointed him. The following points were made:

      (i)  First, the court has an unfettered discretion as to costs which should be exercised with regards to the circumstances of each individual case.

      (ii)  Second, the fact that the official solicitor was appointed of the courts own motion should have no impact on costs. The manner of appointment was not materially relevant. The court should feel free to invoke the assistance of the official solicitor without being constrained by the issue of costs.

      (iii)  Third, the fact that the official solicitor had become involved prior to the Local Authority's involvement was again irrelevant as his involvement was inevitable.

  It seems to me therefore that the court is conventionally asked to exercise a discretion to award costs against the public body party in these types of case. I am unaware of any other person being asked to pay costs in such cases.

  Occasionally one might distil issues of conduct, benefit to one or other party, or public policy as the reason relied upon by the court in exercising discretion one way or the other. Conduct could be a consideration to be taken into account by a court when considering the matter of who should pay the costs of a case. Most hospitals will have access to experienced lawyers and it is reasonable to assume that those advising the hospital will be well prepared to provide assistance and evidence to the court to enable it to consider the issues before it. Similarly such lawyers will know that it would be reasonable to make the court aware, if it was unaware, that the use of CAFCASS might be invoked in order to assist the court deal with the matters in issue.

  There is no doubt a benefit to the court and to society in general in assisting justice and ensuring that justice is seen to be done. However that should not be at the expense of the innocent reasonable client, conscious of and advised of the public need to allow the court access to all relevant information and, at times of great emotion and stress for family the patient and the hospital staff, assist the patient and their relatives in securing appropriate representation.

  Finally the issue of public policy seems to be the over riding consideration when it comes to funding.

4.  SUBMISSIONS

  It is not fair to impose on a party to what I have described as consent cases, what amounts to a special fee because a party to the proceedings, or the court, or the general law, demands the involvement of CAFCASS if justice is to be done and be seen to be done.

  It is inconsistent to say that parents or other relations of a patient, acting bona fide in the interests of a patient should not pay the costs of CFCASS but that a local authority or NHS Trust or Health Authority, also acting bona fide in the interests of the patient should be obliged to pay.

  It offends common ideas of justice and fairness that a public agency, should be unable to perform that function unless someone else pays its costs.

  Making a public body pay the costs of CAFCASS is simply churning money from one part of the public purse to the other.

  There should be proper funding for CAFCASS so that time spent dealing with costs of hearings is avoided.

Stephen King

26 February 2003


 
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