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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Re A (Family Proceedings: Expert Witnesses) [2001] EWHC Fam 7 (06 February 2001) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2001/7.html Cite as: [2001] EWHC Fam 7, [2001] 1 FLR 723

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 February 2001

WALL J:

1. Two points of general interest have emerged from these proceedings relating to a father's application for contact with his two daughters, RA born on 6 January 1992 and SA born on 10 September 1993. The first relates to the manner in which expert witnesses should be instructed in family proceedings; in particular whether an expert witness should accept instructions in proceedings under the Children Act 1989 to advise in a case where the documentation is provided to him in anonymised form, and where he is not informed that the permission of the court for him to report has been obtained.
2. The second point relates to whether or not a family centre ('the centre'), brought in by the court to make an assessment of the family and the needs of the children, is entitled to its costs of appearing by counsel at the substantive hearing of the matter before me in September 2000 at which two of its workers who had prepared the centre's report were required to give evidence. The centre seeks an order either against the father of the children or his solicitors, and its reasons for doing so will be clear once I have put the two issues in context.

The essential facts

3. The parents of the children are Indian by origin, and married there in October 1989. Between 1992 and 1995 they lived in Dubai and they did not come to England until August 1995. In June 1999, the mother and the children travelled to the US for a family wedding. They did not, however, return, and on 29 October 1999, Cazalet J warded the children and ordered the mother to return them to England forthwith. The mother duly did so, and on their return, she and the children went to live in a refuge, where they have remained.
4. The wardship proceedings came before me on 17 November 1999. At that point, as I understood it, the mother's primary intention was to seek the permission of the court to return to the US with the children. I therefore directed her to issue an application within 7 days for a residence order and for permission to remove the children from the jurisdiction; and I gave detailed directions designed to ensure that the issues between the parties - which included the father's application for residence of the children - were heard on 28 March 2000.
5. The directions I gave on 17 November 1999 included permission to both parties jointly to disclose the papers in the case to the centre for the purposes of a report, to be filed and served on or before 23 February 2000, dealing with six identified issues, which included the individual needs of the children and their current emotional state; the nature of the relationship the children had with each other and with each of their parents; and whether they should have contact with their father. I also directed that the court welfare officer should liaise with the centre and the parents in relation to any interim contact, whether supervised or not.
6. Most unfortunately, there was a substantial delay before the centre started work, which threw the timetable out, and meant that the substantive hearing did not take place until September 2000. Responsibility for this delay lies with the centre, which has acknowledged that it mislaid the papers. There is no doubt that the delay caused the father considerable frustration, particularly as he had not seen the children since they went to the US in June 1999, and did not resume contact until it was arranged by the centre in March 2000.
7. The centre's assessment was carried out by a multi-disciplinary team comprising three therapists and two consultant psychiatrists. Two reports were produced: an interim report in March 2000 and a final report in May 2000.
8. As already indicated, the centre was able, during the course of its assessment, to set up supervised contact between the father and the children, and one of the recommendations in its final report was that contact should move to a local contact centre on a weekly basis, where it was to be overseen and monitored by the court welfare officer. The need for continuing oversight was explained by the centre's perception of the high levels of mistrust existing between the parents; the alleged risk that the father might be under the influence of alcohol; and the views expressed by RA that she wished contact to continue only if supervised by other adults. It needs, I think, to be said that the two reports from the centre were careful and thorough, and by no means unsympathetic to the father.
9. As the hearing before me in September 2000 approached, it appeared that the issues had narrowed considerably. The mother had abandoned her application to take the children to the US, and the father had told the court welfare officer that he was withdrawing his application for residence. The only remaining issue appeared to be how contact should be progressed.
10. Most unfortunately, however, on 21 August 2000, the father chose to file a statement of 81 pages in length and running to 189 paragraphs, together with exhibits running to some 200 further pages, in which he not only declared his intention to seek residence orders in relation to the children and made a number of highly contentious allegations about the mother and her family, but also launched what can only be described as a grossly intemperate attack on the centre, and, in particular, on the personal and professional integrity of the principal author of its report to the court, a senior social worker/family therapist, LA. In addition, it emerged from one of the exhibits that the father had clandestinely tape-recorded one of his sessions at the centre.
11. It also emerged from the father's statement that he had made a previous complaint against the centre, which, I was told in evidence by LA, had been fully investigated under the centre's complaints procedures and found to be without basis. Contained within the father's statement, however, was a letter written by his solicitors to the centre setting out his complaint.
12. I do not propose to set out in extenso passages either from the solicitors' letter or from the father's statement. It will, I think suffice to give a flavour of the allegations. LA in the solicitors' letter is accused of being prejudiced against the father, and of telling him that she would do everything in her power to ensure that he did not have direct contact with his children. She is accused in terms of lying about the father and treating him like a criminal.
13. The same allegations are repeated in greater detail in the father's statement. He accuses her of bias against fathers on the ground that LA never had a father-figure in her life and was raised by her mother. He accuses her of being a friend of one of the female refuge workers, and of having 'a relationship' with this woman about which she had been asked questions but refused to answer. Words like 'amazing', 'so-called professional person', and other derogatory phrases abound.
14. The virulent terms in which the father, in his statement, attacked in particular the personal and professional integrity of LA alarmed the centre sufficiently for it to appear by counsel on the first day of the hearing before me, and to seek permission to intervene in the proceedings to call the two workers required for cross-examination, one of whom was LA. This I allowed. In the event, however, the father, no doubt on advice, abandoned his application for residence (which stood no prospect of success) and the only substantive issue upon which LA and her colleague were cross-examined was their evidence that they had smelled alcohol on the father's breath on the first occasion he had had supervised contact with the children.
15. When the father came to give evidence, he accepted that the children should live with their mother. He apologised to her for filing the statement, and for the allegations about her which it contained. He explained that he was upset and felt let down by the system.
16. So far as LA was concerned, however, he was prepared to apologise to her for his suggestion that she was poorly brought up: otherwise, he stood by what he said about her.
17. As I have already stated, the letter of complaint upon which the centre based its internal investigation had been drafted by the father's solicitors, and is expressed in intemperate and unprofessional language. The father told me, however, and I accept, that so far as his statement is concerned, this was drafted by him; that it had taken him a week to prepare, and that he had given it to his solicitors to type. It was thus very clear that it represented his views about the case and that it was filed on his very clear and specific instructions.
18. One of several knock-on effects of the father's statement was that even though he abandoned his application for residence orders, negotiations between the parties on the future of contact became impossible, and because the mother's objections to unsupervised contact were based on allegations that the father had drunk to excess during the marriage and been guilty of domestic violence towards her which had been heard and witnessed by the children (allegations which the father denied) it was necessary for me to hear a substantial amount of evidence.
19. Before withdrawing from the proceedings after the centre's evidence had been called, counsel for the centre sought an order for its costs against either the father or his solicitors or both. As this was, in effect, an application for a wasted costs order against the solicitors, I directed that the solicitors should file with the court and serve on the centre a written response to the application within 14 days, and I heard further argument on the point when I undertook a review of the father's contact on 9 November 2000.
20. The second issue also arose from the father's statement. Exhibited to it was a report from a clinical psychologist, Dr B, commenting on a videotape of the father's contact with the children which he had taken whilst seeing the children at the local contact centre. A report from the contact centre makes it clear that the mother had not been aware that the father was intending to videotape the contact, and that when she learned about it, she was anxious that the father might use it in court and out of context. The father reassured the contact centre worker that he had no intention of using the video in court and that he would not bring his video camera to the contact centre again.
21. In fact, the father's solicitors sent the videotape to Dr B and asked him to write a report on the quality of the father's interaction with the children and the desirability of contact being maintained. No permission was sought from the court for this report, and no notice of the father's intention to seek such a report was given to the mother or her solicitors.
22. The first letter of instruction to Dr B invites him to view the videotape and answer ten questions about the relationship between the father and the children and whether or not contact should take place. This letter makes no reference to the proceedings.
23. Not surprisingly, Dr B asked for further information, and for a background history. The solicitors thereupon prepared a detailed letter to Dr B, setting out the history of the case and giving details of the proceedings, all of which was anonymised. They sent this letter to counsel to approve, and she replied in the following terms:

'In so far as your letter to Dr B is concerned it seems OK to me but please be careful what you disclose - no leave has been given. If you intend to make use of his report then your letter of instructions would have to go in the bundle as well.

In the report from the Contact Centre (the father) said that he would not use a video again - and in any event only used it for about 10 minutes - if Dr B is going to make reference to the video it would have to be limited to the time when the staff thought (the father) was videoing otherwise it will emphasise further that (the father) cannot be trusted not only by the professionals but also the professionals at the centre.

I cannot advise as to whether what he says is relevant until I see it.'

24. Counsel who gave this advice did not represent the father at the November hearing. However, a copy of the draft of this judgment was sent to her, and in response she says (inter alia) (1) that she did not advise on (and only later became aware of) the first letter of instruction to Dr B; (2) that her advice was the court would not give permission for the instruction of a further expert; and (3) that she pointed out to her instructing solicitor that she had never heard of an expert being instructed anonymously. She accepts, she says, with the benefit of hindsight, that on being shown the second letter to Dr B, she should have taken a firmer line.
25. The second letter of instruction to Dr B is very long and sets out the history of the case (including the various applications to the court) in considerable detail. It is also highly tendentious in places, notably where it repeats the criticisms of the centre and of LA which I have already identified. Much of it has nothing to do with the advice being sought from Dr B. Two quotations will suffice:

'50. LA has stated to (the father) that she will personally do everything possible in her power to ensure that (he) is not permitted to have direct contact with his children. That is clearly the wish of (the mother). Is LA merely addressing her report to follow the instructions of the client of the lead solicitors, as they are the solicitors who will be footing the bill?

61. What harm has (the father) suffered as a result of being treated like a criminal when he has never harmed the children and his only sin is that he wishes to have contact with his children? (The father) is a man of good character, he does not have a criminal record he is a law abiding citizen, what effect has the assessment had on him?'

26. Although it was patently clear from the second letter of instruction that Dr B was being asked to advise in the context of heavily contested proceedings, he made no inquiry of the father's solicitors as to whether or not permission had been obtained from the court for him to report, or the purpose for which his report was required; he simply wrote a report as instructed.
27. Once again, I was sufficiently concerned by this course of events to direct that the father's solicitors file and serve a written explanation as to the circumstances in which Dr B came to file a report in the proceedings. As with the application for costs, I heard further argument on this point on 9 November 2000. As both points raised matters of general interest, I reserved judgment.

The instruction of Dr B

28. I propose to deal with this point first, since counsel who appeared for the father's solicitors on 9 November 2000 realistically accepted that as no permission had been sought from the court to instruct Dr B, the solicitors would have to accept personal responsibility for discharging his fees. They could not, he accepted, seek payment for them as a disbursement on the father's community legal services funding certificate.
29. Whilst this is plainly the correct result, I do not think that the matter can be allowed to rest there. The manner in which Dr B was given and accepted instructions in this case raises important issues of practice which require examination.
30. The second letter of instruction to Dr B is very detailed, and discloses a great deal of information about the proceedings, although it does not identify the parties or the children, and no court documents were disclosed to Dr B. Counsel for the father's solicitors was thus able to argue that there had been no breach of Family Proceedings Rules 1991, r 4.18, no unauthorised disclosure of court papers (Family Proceedings Rules 1991, r 4.23), and no breach of s 12 of the Administration of Justice Act 1960. The only consequences, accordingly, he submitted were (1) that the court had a discretion to exclude the evidence; and (2) that the father's solicitors could not include Dr B's costs as a disbursement in any assessment under the community legal services funding certificate.
31. I did not hear detailed argument about whether the 'information' revealed to Dr B in the two detailed letters of instruction was sufficient to bring the case within s 12 of the Administration of Justice Act 1960. I prefer to deal with the question as one of practice.
32. The explanation proffered by the father's solicitors pursuant to my direction of 7 September 2000 was that the father had produced the video as evidence that contact was progressing well, contrary to what was being stated by the centre. The father was advised by his solicitors that the only person who could comment on the video was an expert. Dr B was contacted 'with regard to whether he could prepare a report and his costs on this matter'. Dr B then contacted the father's solicitors stating that he needed the background information - hence the second letter setting out the background information on the case. The solicitors sent that letter to counsel, who advised in the terms which I have already set out. The solicitors now accept that the advice they received was incorrect, but did not wish to attach blame on counsel. They expressed regret at any concern the report had caused, and apologised for having obtained it.
33. When, through my clerk, I inquired of Dr B how it was he came to accept anonymous instructions without inquiry as to whether or not permission had been given by the court for him to report, he answered in the following terms:

'I should say that it is not unusual for me to receive instructions which are not jointly agreed to prepare a paper based report. It is not unusual for me to only see the documents or have only a summary of the case or see a video without seeing the clients. Furthermore, it is not uncommon for me to receive anonymised background information and, in particular with Asian families, for the names to be taken out at their request. I had previously prepared a paper based report for (Ms A, the father's solicitor) when she worked for another firm and saw nothing unusual in what she was asking. I had no idea that the instructions did not have the agreement of the court. (Ms A) had a discussion with me on the telephone about my availability and costs and wanted a quotation to apply for authority to meet my costs. She said she would need the court's approval. However, it was of concern to me that I had no background information. I telephoned Ms A to request this information and explained to her that I could not make comment on the issue of contact without this background information. Ms A informed me that she had a draft being reviewed by the involved barrister and would supply this as soon as possible. There was nothing to suggest that the referral was unusual.

In all my dealings with solicitors I assume that what they request me to do has the agreement of the court and is within the law (if I did not have this assumption, then I would have to hold a cynical view of the justice system). If I was to explicitly ask whether solicitors had court approval for my involvement then it is likely that they would see me as questioning their professional integrity and knowledge of the law and I would be seen as being turgid, pedantic and offensive. I assume solicitors work with the requirements of the court and within the law. I am sure the court appreciates the level of trust that is expected and assumed in these matters. It never occurred to me that Ms A did not have the court's permission to instruct me and I did not question whether the basis on which I was instructed was acceptable to the court. It would naturally be my expectation that my preparation of a report to be placed before the court as a legal document would have the court's approval. I accepted the instructions in good faith as I do in all my work with solicitors.'

34. I wish to make it clear that I do not doubt Dr B's professional integrity, nor that he accepted his instructions in this case in good faith. I am nonetheless in no doubt that his response displays an important misunderstanding of the role of the expert witness and of the relationship between such witnesses and their instructing solicitors; and I am likewise satisfied that the advice given by counsel, and which I have set out, was wrong.
35. The essence of case management in proceedings relating to children is that the process should be transparent, and that each party should know the case that party has to meet. It is equally important when it comes to expert evidence, that if such evidence is required in a case, the issues to be addressed by it should be identified at the earliest possible stage in the proceedings and debated at an early directions appointment, so that the briefs to be given to whatever expert or experts are to be instructed can be defined by the court and permission given by the court for the relevant documentation to be disclosed.
36. It is for the court to decide what expert evidence should or should not be obtained in any case, and it is in my judgment quite contrary both to the spirit and the letter of the approach to expert evidence which has developed since the implementation of the Children Act 1989, that one party, without notice to the other party or the court, should commission a report from an expert about which neither the court nor the other party knows anything.
37. It is equally important, in my view, that expert witnesses should always understand their role in the proceedings in clear terms. In particular, they must know the terms of the court order which defines their involvement, and the purpose for which they are being instructed. In my judgment, expert witnesses asked to write reports for proceedings under the Children Act 1989 are not only well advised to find out, but need to know precisely what the court requires of them in order that they can properly fulfil their obligations as experts to report fully and objectively to the court.
38. It is for this reason that, with respect to him, Dr B seriously misunderstands the position when he says that he 'assumes' his solicitors have the agreement of the court in what they request him to do, and that they would see him as questioning their professional integrity and knowledge of the law were he to make further inquiries. To the contrary, it is in my view essential for the proper working relationship between solicitors and expert witnesses that experts are told explicitly both that the court has given permission for them to be instructed, and what the terms of the court order relating to their instruction are. If that information is not provided, expert witnesses must ask for it. Knowledge of the terms of the court order is essential, and to ask for it neither turgid, pedantic, nor offensive.
39. It is also in my judgment contrary to good practice to seek to avoid the need to seek the permission of the court to instruct an expert witness by providing information anonymously, and bad practice for expert witnesses who understand that their opinion is required for court proceedings to accept anonymous instructions. I was very surprised that Dr B says that it is not uncommon for him to receive anonymised background information and, in particular with Asian families, for the names to be taken out at their request.
40. In the context of court proceedings, I find it difficult to envisage circumstances in which it would be appropriate for an expert to be either given or to accept instructions to advise which are anonymous, or in which a court would permit anonymised instruction.
41. In my judgment the instruction of Dr B in this case was wholly inappropriate. It was done without the knowledge of the court and of the mother's advisers. It was done anonymously. Dr B should not have been invited to report, and should not have accepted the instructions he was given without further inquiry. Counsel should have advised that it was not appropriate to instruct Dr B anonymously and without the court's permission. Her advice: 'if you intend to make use of the report then your letter of instruction would have to go in the bundle as well' overlooks the fundamental point that for a report to be used in family proceedings, permission has to be obtained.
42. As counsel for the solicitors points out, the only consequence in the instant case is that the solicitors recognise that they are personally liable for Dr B's fees and cannot claim them as a disbursement on the father's community legal services funding certificate. I hope, however, that what I have set out above will help to discourage the practice where proceedings are in being of giving instructions to experts anonymously and without reference to the court.

The centre's costs

43. The proper conduct of difficult cases relating to the care of children requires particular skills from solicitors and counsel. Parents facing what may be the inevitable removal of their children into the care of a local authority may none the less passionately oppose that course. Parents arguing between themselves about the future of their children are frequently in the grip of powerful emotions which distort their perceptions, and which often have more to do with unfinished business from their broken relationship than with the welfare of their children. The advocates' duty in family proceedings frequently requires the placing before the court of highly emotive issues, and clients in the witness-box are likely to express themselves forcibly - indeed, it may be a necessary element to the court's decision making process that it hears and is able to form a view about the strength and rationality of a party's evidence.
44. It is clearly the duty of counsel and solicitors in such proceedings to present their client's case fully and fearlessly, and no court is going to consider making a wasted costs order against lawyers who have properly fulfilled their duty to their client by putting their client's case before the court, even if that case has little prospect of success.
45. At the same time, however, as counsel for the solicitors in the instant case implicitly recognises, it is the responsibility of solicitors and counsel to present their clients' case in moderate and considered terms; and to maintain a calm and professional demeanour in court. Furthermore, in the preparatory stages of the case, solicitors should ensure that correspondence is conducted in professional language, and that statements presented to the court are likewise carefully drafted to avoid over-emotive, florid or otherwise inappropriate or offensive phraseology.
46. In my judgment, therefore, counsel for the father's solicitors was right to acknowledge that the tone of parts of the father's statement of 20 August 2000 was ill-judged, and that certain of the references to LA and the centre were intemperate and offensive. Counsel proffered the solicitors' unreserved apologies for the distress caused by those references. Counsel also acknowledged that the more florid comments in the father's statement ought to have been deleted, but pointed out (1) that the father had given very firm instructions that he wished his views to be made known to the court; (2) that he felt 'let down' by the system and threatened to terminate the solicitors' retainer if his instructions were not carried out; and (3) that if the statement had not been filed, the father may well have taken the opportunity to make similar observations from the witness box.
47. As to the letter of complaint to the centre dated 3 May 2000, that was also, counsel submitted, written on the father's express instructions, but could, he accepted, have been more temperately worded. However, it reflected how the father felt, whether justifiably or not.
48. So far as the centre's application for costs is concerned, counsel for the father's solicitors raised three points:

(1) whether the solicitors' conduct in filing the statement and making the allegations against the centre fell within s 51(6) and (7) of the Supreme Court Act 1981 - in other words were they guilty of a sufficient degree of misjudgment as to amount to an 'improper, unreasonable or negligent act or omission'?;

(2) whether it was really necessary for the centre to intervene in the proceedings; and

(3) whether the centre was a party within the meaning of s 51(7).

49. Counsel for the father also took the 'party' point under s 51(7). He also argued that the father had withdrawn part of his statement at the final hearing, and submitted there was no need for the centre to be represented as this was 'in essence a matter of evidence'. It would be most unfortunate, he submitted, if a witness aggrieved by another's statement was represented at every hearing. He also argued that if the centre had been concerned about the father's statement it should have raised the matter in correspondence and given the father the opportunity to withdraw or amend his evidence before instructing counsel and appearing at the hearing.
50. As far as the jurisdiction to make a costs order in favour of the centre is concerned, the centre was, in my judgment, justified on the facts of this case in seeking to appear by counsel to protect its professional reputation and the integrity of its workers in the light of the profoundly serious nature of the attack being launched upon it and upon LA in particular by the father. The centre was not a witness of either party: it had been jointly instructed. It was no part of the mother's case to represent the centre's interests, and she was in no position to do so. In my judgment, therefore, the centre was entitled to apply for permission to intervene in the proceedings for the purpose of being represented in order to call its evidence and, if need be, to cross-examine the father on any relevant issues which emerged. In the event, of course, as I have already indicated, the evidence called by the centre was only subject to very limited challenge, and it was not necessary for counsel for the centre to remain beyond the evidence of LA and her colleague.
51. It is not uncommon in public law proceedings under the Children Act 1989 for a person or body to be given permission to intervene for a particular purpose. A simple example is where the court is required to make a finding of fact about the death of a child, where the death is said to have been caused by a person not a party to the proceedings - for example the mother's former cohabitee. In such cases the person in question sometimes intervenes in the proceedings and is represented. In such circumstances it would, I think, be extraordinary if the court did not have the power to make orders for costs either against or in favour of such an intervenor.
52. In any event, Civil Procedure Rules 1998, r 48.2 requires that where the court is considering whether to exercise its power under s 51 of the Supreme Court Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to the proceedings:

(a) that person must be added as a party to the proceedings for the purposes of costs only; and

(b) he must be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.

53. I would not want anything in this judgment to encourage interventions by bodies such as the centre, whose function is, of course, to provide a report and give evidence. However, on the facts of this case, the centre's intervention in the circumstances described was in my judgment justified. I propose, accordingly, to join it as a party for the purposes of costs. The question is thus who, if anybody, should pay its costs.
54. On the facts of this case, I am unimpressed by the argument raised by the father that there should have been - in effect - a letter before action addressed to the father's solicitors, inviting them to withdraw the statement. Whilst in other circumstances this might be a telling argument, the father's statement is dated 21 August 2000, and the hearing began on 4 September 2000. The statement was not, as I understand it, sent directly to the centre: they learned about it from the mother's solicitors. At best, therefore, the centre had some 6 or 7 working days to deal with the statement. Furthermore, the filing of such an emphatic statement so close to the hearing, which repeated the father's previous complaints was - from the centre's perspective - a fair indicator that the father was bent on reviving his previous complaints. In all these circumstances, writing a letter before action seems to me something of a counsel of perfection.
55. Although, in my judgment, the father's solicitors failed in their duty to present his case in moderate and professionally appropriate language; and whilst I agree with counsel that they should have redrafted part of their letter to the centre and the father's statement, they were, none the less, reflecting his instructions and putting forward the case he was determined to advance. In these circumstances, and whilst the language used in the letter to the centre and in the statement is to be deprecated, I cannot find that their conduct comes within s 51(6) and (7) of the Supreme Court Act 1981 so as to make them personally liable for the centre's costs.
56. Although the father issued a qualified apology to LA, it was clear to me from his evidence that he still feels deeply resentful of what he quite mistakenly perceives as the centre's bias against him. His allegations against the centre (apart from the fact that they initially mislaid the papers) were all wholly without foundation, and there is no doubt in my mind that by his insistence on attacking the centre in such a virulent manner he had brought on himself the application for costs which the centre makes.
57. I also bear in mind in this context that there had been an inquiry into his complaints by the centre, which had found them to be baseless. I heard LA in the witness box, and in any conflict of evidence between her and the father had no doubt that her evidence was to be preferred.
58. The court is very reluctant to make orders for costs against parents in family proceedings. Here, however, the father has gone far beyond the limits of toleration. He has deliberately mounted an unwarranted personal attack on the integrity of LA and the centre in circumstances which warranted the centre seeking legal advice and intervening in the proceedings. I therefore see no reason in principle why he should not pay the centre's costs.
59. The father is in receipt of community legal services funding. The question of costs in such cases is governed by s 11(1) of the Access to Justice Act 1999, which provides that any costs ordered against the father shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of the parties and their conduct in relation to the dispute.
60. Section 22 of the Practice Direction About Costs, which supplements Parts 43-48 of Civil Procedure Rules 1998, and regs 8-13 of the Community Legal Service (Costs) Regulations 2000 set out the procedure for making an order for costs against a publicly funded person. The court can either make 'an order for costs to be determined' or an order 'specifying the costs payable'. The former is defined as an order for costs under s 11 of the Access to Justice Act 1999 under which the amount of costs payable by the funded client is to be determined by a costs judge or district judge under s 23 of the Practice Direction. An 'order specifying the costs payable' means an order for costs pursuant to s 11 of the 1999 Act, which specifies the amount which the funded client is to pay.
61. If the court makes 'an order for costs to be determined', s 22.6 of the Practice Direction provides that it may also (1) state the amount of the full costs or (2) make findings of facts, eg concerning the conduct of all the parties which are to be taken into account by the court in the subsequent determination proceedings.
62. Pursuant to s 22.7 of the Practice Direction the court will not make an order specifying the costs payable unless (inter alia) it considers that it has sufficient information before it to decide what amount is a reasonable amount for the funded client to pay.
63. In my judgment, the proper order for me to make against the father in this case is an order for costs to be determined. I do not think I have sufficient information to decide what amount is a reasonable amount for the father to pay. I have, in particular, no information as to his means. At the same time, however, I think I should state the amount of the full costs under s 22.6.
64. The centre has produced a schedule of its costs in the sum of a little over £3000. There was no suggestion at the hearing that this was an excessive sum, and I accordingly propose to assess the centre's costs in the sum of £3000. This will obviate the need for the centre to submit a full bill of costs.
65. My order, accordingly, will be that the amount of the centre's full costs is £3000: and that the father pay the centre's costs in a sum to be determined by the costs judge. This will enable the centre to apply under s 23 of the Practice Direction for the amount to be paid by the father to be determined by the costs judge; it will enable the father to submit a statement of resources and the costs judge will then decide the amount the father should pay.
66. An issue also arises as the costs reserved by Munby J on 17 October, when the father made an application for directions relating to the contact and sought an order that the mother bring the children to the contact centre and leave them there. Munby J made no order on the father's application, but reserved the costs. I see no good reason for making any order in relation to that application other than no order as to costs with appropriate assessments.

Order accordingly.

PHILIPPA JOHNSON

Barrister

The permission for BAILII to publish the text of this judgment
was granted by Jordan Publishing Limited
Their assistance is gratefully acknowledged.