Re P (Minors) (Official Solicitor's Costs) ; [1993] 2 FCR 550

Children Act 1989, ss 8, 31, 37, 38(1)(b) and 41.

Family Proceedings Rules 1991, r 4.11.

Guardians ad Litem and Reporting Officers (Panels) Regulations 1991.

Supreme Court Act, s 90.

G (A Minor) (Wardship: Costs), Re [1982] 1 WLR 438; [1982] 2 All ER 32.

Margaret de Haas for the local authority.

Judith Daley for the Official Solicitor.

This case concerns the case of three children, in respect of whom the Sefton Metropolitan Borough Council had applied for care orders under s 31 of the Children Act 1989. Ultimately, that was not in contention. There

were a number of other issues which required determination. The children were represented by the Official Solicitor, acting as their guardian ad litem. At the conclusion of my substantive judgment, the Official Solicitor applied for an order that one half of his costs of the hearing should be paid by the local authority. Sefton resisted this application. That gave rise to an issue as to the matters which should be considered by the court in determining such an application, having regard to the requirements of the Children Act and the relevant rules and regulations.

Proceedings in relation to these children commenced on 19 Sepember 1990, when Sefton issued an originating summons making the youngest child, a girl then aged three months, a ward of court. Apart from one or two interlocutory hearings, the matter proceeded no further and no substantive orders were made. On 26 April 1992, the mother shot the father dead and then took all the children to the home of a member of the father's family. Shortly afterwards, on 6 June the youngest child went to live with the mother in a bail hostel. On 12 June the mother issued a summons making the other two children wards of court and applied for their interim care and control. That application came before Cazalet, J, sitting in Manchester, on 26 June.

He was clearly faced with quite exceptional circumstances. The defendants to the mother's wardship summons were four members of the deceased father's family, his mother, two brothers and a sister, and they wished to retain the care of the children in the family. The local authority was so far not involved in those proceedings and the first wardship summons in relation to the youngest child was not then before the court. Cazalet, J adjourned the mother's application to 2 July, but he invited the Official Solicitor, subject to his consent, to act for the two older children. The matter came back before Cazalet, J on 3 July. On that occasion, he directed that the two sets of wardship proceedings should be linked and heard together and he invited the Official Solicitor to act for the youngest child. He also ordered that Sefton should undertake an investigation pursuant to s 37 of the Children Act, of the circumstances of the placement of all three children. The next hearing took place before Hollings, J, sitting in Liverpool, on 10 July. It was by his order that the local authority were joined as a party to the proceedings and directed to carry out further investigations under s 37 of the Act. At the same time, all three children were committed to their interim care, under s 38(1)(b). The case then proceeded by way of interlocutory hearings to the substantive hearing before me. By then Sefton were seeking a care order in respect of all the children on the basis that they should continue to live with their mother, with the support which the authority could offer the family. That was agreed by all parties and the contentious issues principally related to what contact, if any, the children should have with members of the father's family. At the conclusion, I made orders under s 31 of the Act and orders in relation to contact, which it is unnecessary to enumerate.

In resisting the application of the Official Solicitor for a contribution towards his costs, Miss de Haas, on behalf of Sefton, placed importance upon a number of significant features in the chronology of the case. The Official Solicitor was invited to act for the two older children before the local authority were in any way

involved in their proceedings. It was not until 3 July, when the Official Solicitor was invited to act for the youngest child, that Sefton was directed to carry out a s 37 investigation without at that stage being joined as a party or having any of the children committed to its care. The Official Solicitor was, therefore, effectively in place before the local authority was involved and well before they were joined as a party. So, Miss de Haas submitted, it would not be right now to require the local authority to contribute to his costs, an argument which she founded upon the judgment of the Court of Appeal in Re G (A Minor) (Wardship: Costs) [1982] 1 WLR 438 to which I will return shortly.

It is convenient first to consider the means by which the interests of a child may be represented in family proceedings, either by a panel guardian ad litem or by the Official Solicitor. By the Guardians ad Litem and Reporting Officers (Panels) Regulations 1991, each local authority must establish a panel of guardians ad litem and reporting officers from which a guardian ad litem, other than the Official Solicitor, appointed under s 41 of the Children Act must be selected. Section 41(l) requires the court to appoint a guardian ad litem for a child in any "specified proceedings" unless it is satisfied that it is not necessary to do so. When a panel guardian ad litem is appointed, the local authority are under a duty to defray his reasonable expenses, fees and allowances incurred in respect of those proceedings.

The meaning of "specified proceedings" is contained in s 41(6) and includes, in addition to an application for a care or supervision order, proceedings "in which the court has given a direction under s 37(l) and has made or is considering whether to make an interim care order". Wardship proceedings and applications for section 8 orders are not specified proceedings for the purpose of the Act. In such cases, the court is under no duty to appoint a guardian ad litem and the local authority is not required to make any payments to a penal guardian for such work.

The powers and duties of a guardian ad litem are contained in r 4.11 of the Family Proceedings Rules 1991. His first duty is to appoint and instruct a solicitor to act on behalf of the child, who will then apply for legal aid for the child. The legal aid board will fund the costs of preparing the case and defraying the fees of any experts who may be consulted, while the expenses of the guardian ad litem incurred in carrying out his other duties will be met by the local authority. Those duties include conducting all investigations and making all inquiries as will enable him to ascertain the child's wishes and assess his interests as well as to fulfil the various obligations specified in the rule.

The position of the Official Solicitor is very different. The office derives from statute and is now governed by s 90 of the Supreme Court Act 1981. The Official Solicitor is appointed by the Lord Chancellor and his salary, together with the expenses of his department, are paid out of the public funds. In relation to his work with children, he may be appointed, subject to his consent, to act for a child in all family proceedings, public and private, in the High Court and he is a member of the panel network of guardians ad litem. In accordance with a direction issued by the Lord Chancellor, he may be appointed to act as guardian ad litem for a child in specified proceedings where there are exceptional circumstances which make it desirable that he rather than a panel guardian ad litem should be appointed.

In this case, the appointment of the Official Solicitor was made by Cazalet, J in respect of the children when the only proceedings before the court were the two sets of wardship proceedings. At that stage, it would not have been open to the court to appoint a panel guardian ad litem since there were no specified within the meaning of the Act and the requisite funding would not have been available. The appointment was also made before the local authority was effectively involved, although Sefton had instituted the wardship proceedings in respect of the youngest child which had remained in abeyance. But, as Miss de Haas conceded, the facts of the matter were so exceptional that the court would have wished in any event to have appointed the Official Solicitor and not a panel guardian ad litem. Nevertheless, she argued that it would not be just in the circumstances of the appointment to require Sefton to pay any part of his costs.

Save in adoption cases, it is no longer the practice of the Official Solicitor to seek an undertaking in respect of his costs before consenting to act on behalf of a child. Like any other party, he will decide whether or not to apply for an order that they be paid by one or more of the other parties. This can present the court with a difficult decision as to whether or not it is just to order a local authority to pay the whole or part of those costs from its funds or whether it is appropriate for them to be borne by the Official Solicitor and defrayed from the resources allotted to him from the public purse. In each case, budgets are severely stretched and both the local authority and the Official Solicitor have many demands made upon their restricted finances, but those are not matters to be taken into account by the court. Any application for costs must be considered in accordance with the established principles.

The judgment of the Court of Appeal, delivered by 0Ormrod, LJ, in Re G (above) remains the classic exposition of the basis upon which the court should exercise its unfettered discretion in relation to the costs of the Official Solicitor. But, as with any authority which preceded the implementation of the Children Act, that judgment must now be read in the light of the new statutory provisions and procedures. In directing attention to some of the considerations which trial Judges should bear in mind in reaching their decisions as to costs Ormrod, LJ put as the first and most important of them the consideration that:

"A Judge, whenever he thinks it would be right to invoke the assistance of the Official Solicitor, should feel free to do so without being constrained by anxiety about the possible effect in relation to costs on one or other or both of the other parties to the proceedings."

That consideration continues to apply today with equal force. Ormrod, LJ went on to draw a distinction between the position which pertained when the Official Solicitor was appointed guardian ad litem on the Judge's own motion and that when he was appointed on the application of one or other of the parties, in which case it might be just to order his costs or a proportion of them to be borne by the party asking for his assistance.

He then continued his judgment with these words:

"The Official Solicitor like all guardians ad litem, can only be appointed if he has consented to act. This enables him, where he thinks it right, to ask for a full or partial indemnity for his costs. This is some protection but where the appointment is on the Judge's own motion it will rarely, if ever, be applicable."

Miss de Haas relied on those words in particular to support her argument where the court has of its own motion appointed the Official Solicitor to act for a child the court should not, as a general rule, require another party to pay his costs. She did not go so far as to say that this is an absolute rule and realistically accepted that the court must also have regard to all the other circumstances of the case. Nevertheless, she submitted that it was a material circumstance to be taken into account. If the Official Solicitor, on his appointment by the court of its own motion, would not have then sought any indemnity from any other party, the court should only rarely make an order to that effect.

The significance to be attached to the means by which the Official Solicitor came to be appointed in any case, whether by the' court or its own motion or upon the application of another party, must now be considered in the light of the Children Act and the duty imposed upon the court by s 41 to appoint a guardian ad litem in specified proceedings. In those proceedings the court is bound to provide for the representation of the child, whether or not there is an application for it to do so and it is a matter for the court to decide whether or not the facts of the case make it more appropriate to appoint the Official Solicitor. In that respect, the position is very different now from what it was at the time of the judgment in Re G. It is for that reason that I do not consider that the manner by which the Official Solicitor now comes to be involved in the case to be of any material importance and I am of the opinion that the guidance to be found in the judgment of Ormrod, LJ must be modified to that extent.

At the conclusion of any case the court has to look at all the circumstances before exercising its discretion in relation to costs. In this case, the exceptional facts made it inevitable that both the local authority and the Official Solicitor would be involved and it was by chance that the matter came before the court in such a way that made it appropriate for the latter to be involved before the former. I do not regard that as a fact of any significance in reaching a decision as to costs.

In advancing the argument on behalf of the Official Solicitor, Miss Daley submitted that had a panel guardian ad litem been appointed by the local authority, the local authority would have been bound to have defrayed his or her reasonable expenses which would not have been paid by the legal aid board. It was, therefore, right that the local authority should pay a contribution to the Official Solicitor's costs. In this case he seeks half of the costs of the hearing, that is half counsel's fees and half the fees of his expert witness, together with valued added tax. Having regard to the considerable extent of his inquiries and the lengthy involvement of the consultant whose assistance he sought, that is a modest request. Had that work been done by a panel guardian as part of his statutory duties, then the cost to the local authority would have been considerably greater.

I accept Miss Daley's submission. In my judgment it is just that the local

authority should pay a contribution towards the Official Solicitor's costs. Parliament has placed upon local authorities responsibilities and financial liabilities in respect of the representation of children in a particular class of family proceedings. The fact that the circumstances warrant the appointment of the Official Solicitor to carry out the work instead of a guardian ad litem drawn from a panel for which the local authority has statutory responsibility, should not of itself render the local authority immune from any liability for the costs incurred by him. The extent of their liability, however, must be a matter for the court in the exercise of its discretion and must be a decision reached in the light of all the circumstances of the case. In this instance, the work of the Official Solicitor was necessarily time consuming and costly. At the conclusion of the case, and with the consent of all parties, the children were committed to the care of Sefton in accordance with their plan. Against that background, I consider it is just for Sefton to pay a contribution towards the Official Solicitor's costs and that which he seeks of one half of the costs of the hearing is reasonable and just.

These decisions are never easy. At the conclusion of his judgment in Re G Ormrod, LJ expressed the hope that when public bodies are involved they will be able to agree between themselves how the Official Solicitor's costs should be dealt with. It is a hope which I reiterate.

For those reasons I will accordingly make an order that the Sefton Metropolitan Borough Council do pay one half of the Official Solicitor's costs of the hearing, such costs to be taxed if not agreed.

Solicitors: The Council Solicitor for the local authority.

The Official Solicitor.

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