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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