Re K and Re S (Legal Aid: Experts’ Fees) [2025] EWFC 100 

• These two decisions raised the issue as to what the Court should do when the instruction of an expert has been authorised in Public Law proceedings, and the Court has directed that the expert’s fees are to be covered in equal contributions from each party, but the rate to be charged by the expert exceeds that which the Legal Aid Agency (‘LAA’) is prepared to sanction, resulting in a shortfall in the overall fee.
• The facts of both cases related to babies with fractures and several experts were instructed in preparation for fact-finding hearings.
• The fees for each expert exceeded the LAA authorised rate and the Local Authority were directed to meet the shortfalls, which were £1,370 and £2,884 respectively.
• Whilst these proceedings were taking place, the LAA were also revising the now amended Guidance on the Remuneration of Expert Witnesses in Family Cases published in April 2025. A summary of this guidance is set out within the judgment of Sir Andrew McFarlane P who utilised his judgment to clarify the position.
• The guidance makes clear that it is not the intention of the LAA that the Local Authority should make up a shortfall in expert’s fees (other than in unusual circumstances) and that once a prior authority is granted it should cover the full cost of the expert [2.4].
• The guidance includes a checklist to ensure that all of the relevant information is submitted to the LAA [3.26 & Annex 6] and that whilst there is no formal appeal process following a decision on prior authority, the LAA operates a system whereby they can be asked informally to review the decision [3.22 and 3.27].
• The President’s Experts Working Group have also endorsed a list of general principles proposed by the Local Authority which includes the following:
  • Those seeking to instruct an expert should make all efforts to identify an expert with the requisite experience and expertise who works within the prescribed rates and hours and can report within an acceptable timeframe;
  • If such an expert can be identified then that expert should be preferred by the court absent an exceptional reason;
  • A Local Authority should not routinely be considered to cover any shortfall, and instead only where the court is satisfied:
    • That there has been proper exploration of other experts who may be able to complete the work within the prescribed rates and hours;
    • That the application for prior authority has been argued fully and included all material relevant to the decision making of the LAA;
    • That the parties (including the Local Authority) have given proper consideration to the possibility of a claim for judicial review against the LAA;
    • That the reason given by the LAA for refusing to approve the application for prior authority was full and enabled the court and the parties to understand the reason for refusal.
• The Experts Working Group has also agreed with the LAA a helpful template wording for draft orders, set out in full at paragraph 30.
• Sir Andrew McFarlane P concluded his judgment by endorsing the principles devised to clarify the position, and said that ‘only then, when the court is satisfied that these other reasonable steps have been properly taken, should it turn towards the local authority as a possible source of additional funding’ [31].
• Where any process of review may take time, and postpone the chosen expert starting work, the court should consider the Local Authority covering any shortfall on an interim basis pending further consideration once any challenge has concluded [33].
• Practitioners and the courts themselves should therefore consider the above principles in determining who and when the Local Authority should cover the shortfall in expert fees.

Re E (Section 37 Direction) [2025] EWCA Civ 470 

• The appeal in Re E centred around the interpretation of section 37(1) and section 38(1)(b) of the Children Act 1989.
• s37(1) provides for the court to direct the ‘appropriate authority to undertake an investigation of the child’s circumstances in any family proceedings in which a question arises with respect to the welfare of any child, it appears to the court that it may be appropriate for a care or supervision order to be made with respect to him’.
• s38(1)(b) provides that where a direction has been made under s37(1) the court may make an Interim Care Order or Interim Supervision Order with respect to the child concerned.
• The issue on appeal was whether the court’s power under s37(1) extended to any child about whom it becomes aware during the proceedings or only to a child who is the subject of the proceedings, and subsequently whether the power under s38(1) extends to the making of Interim Supervision Orders without notice to or representations by that child’s parents.
• The subject child, E, had temporarily been staying with maternal aunt, A, her partner, B, and their 3 children.
• The Judge at a case management hearing concerning E expressed his concerns about the conditions of A’s property and that he would be considering a s37 direction at the next hearing.
• At a subsequent CMH relating to E the court made a s37 direction in respect of A’s children as well as placing them under the supervision of the Local Authority.
• Lord Justice Baker found on appeal that ‘that in taking steps he thought necessary to protect the three children, the judge misunderstood the scope of s37. Furthermore, in his anxiety about the three children, and placing them under Interim Supervision Orders, he overlooked the need to ensure that the procedure he adopted was fair’ [64] and that ‘his interpretation of s37 was wrong’ [65].
• The judgment focussed on the construction of the statue, as well as the principles of fairness and proportionality in reaching the conclusion that s37(1) does not extend to children who are not subject to the existing proceedings:
• In summary the judgment considers:
  • It is important to consider the entire statutory phrase [66];
  • It is important to consider the purpose of s37, quoting Wall J in Re CE (s37 direction) ‘a means of assisting the court in its assessment of the options available for dealing with the child’ in other words, to enable the court to obtain a report about the child who is the subject of proceedings [68].
  • Thirdly, this interpretation is consistent with the underlying principles of the 1989 Act which was to provide a single route (application under s31(1)) and a single set of threshold criteria (under s31(2)) in which the state is granted care under a court order. The powers granted under s37 and s38 are therefore exceptions to the general principles (similar to the EPO provisions) and therefore should be interpreted narrowly [71];
  • Fourthly that the FPR, and the original 1991 Rules are either silent on, or not supportive of a broad interpretation that it extends to any child not subject to proceedings which is therefore indicative of the intention of the powers pursuant s37(1) and s38(1)(b). These include [79-81];
    • No provision for the service of either the direction under s37(1) or the report on any other person whom is not a party to proceedings;
    • The rule expressly provides that the court may adjourn the proceedings which suggests that the s37 scheme is focused on the child who is the subject of the proceedings;
    • No provision for service of an order under s38(1)(b) on any person who is not a party to the proceedings (i.e. the child’s parents);
    • No provision for such persons to file evidence, make representations, or apply to set the order aside;
    • No provision for the disclosure of evidence on such persons;
    • No provision for notice of intention to make the direction or interim orders;
    • No provision that the court is able to make such orders without notice.
• The judgment went on to determine that placing A’s children under Interim Supervision Orders was procedurally unfair, as A’s parents had not been given notice, or the opportunity to respond, and the court had failed to list the matter for an earlier on-notice hearing [83-87].
• The judgment goes further to say that the court had an insufficient evidential basis in which to make interim orders pursuant to s38(1) as well as lacking analysis of the Welfare Checklist within s1(3), the least interventionist principles, or the interference with article 8 [89-90].
• The judgment concludes by making clear that where a judge in the course of proceedings becomes aware of circumstances which suggest that a child may be at risk of significant harm, he or she should consider taking appropriate steps to notify the relevant Local Authority, and the Judge may be justified in disclosing information from these proceedings to the social work team involved with that child.
• The appeal was therefore allowed and the s37 direction, and Interim Supervision Orders set aside.
• The judgment reminds us of the importance of ensuring fairness to all involved when making decisions regarding children’s welfare.

J v Bath and North East Somerset Council & Ors [2025] EWCA Civ 478  

• This appeal concerns whether the Local Authority could consent to the de facto confinement and deprivation of liberty of a child who was subject to a Care Order.
• J was a profoundly disabled 14-year-old boy with long-standing and life-long disabilities. He had been in a specialist children’s home pursuant to s20 since April 2020 until proceedings were issued and a final Care Order made by agreement with the parents.
• In her judgment Lieven J held that, in circumstances where J was subject to a full Care Order pursuant to s31 and where it was beyond dispute that J needed to be looked after in such a way that his liberty was restricted to a degree sufficient to engage ECHR, Article 5, but where both of J’s parents and the Local Authority consented to that restrictive regime, there was no need for the High Court to make an order authorising the deprivation of J’s liberty [i.e to make a DOLS order].
• The appeal centred around whether Lieven J was correct in her legal analysis or, as all of the parties asserted that she was wrong and a DOLS order was in fact necessary.
• Firstly, the judgment reminds us of the settled authority of Stock v Germany (App No 61603/00) (2006) 43 EHRR 6) and the test for engaging Article 5:
  • ‘Objective element’ – Confinement in a particular restricted space for a not negligible length of time; and
  • ‘Subjective element’ – there has not been valid consent to the confinement in question; and
  • The deprivation must be imputable to the state.
• Lieven J accepted in her judgment that limbs 1 and 3 were satisfied in this case.
• In considering whether valid consent had arisen, Lieven J concluded that it was lawful for the Local Authority in the discharge of its parental responsibility to consent to the continued restriction of J’s liberty, so that limb 2 was not met and a DOLS order was not required.
• Sir Andrew McFarlane P on appeal considered that firstly, the issue must be determined in accordance with the Human Rights Act 1998 in a manner that is compatible with the ECHR, rather than analysing the matters through the lens of domestic law, that which Lieven J did not do [46].
• In doing so, the starting point is HL v United Kingdom (Application: 45508/99) 40 EHHR 761 and the subsequent judgment of Cheshire West [2014] UKSC 19, which emphasises the purpose of Article 5 being to ensure that people are protected by the relevant safeguards.
• Sir Andrew McFarlane P’s judgment is clear that a child in the position of J must be afforded the benefit of the checks and safeguards under Article 5(1), or separately of access to a process in court under Article 5(4).
• The decision goes on to say that the effect of Lieven J’s decision, where a local authority consents to the confinement by the State of a child in their care, would be to remove the case from Article 5, thereby avoiding the important protection, safeguards and independent authorisation by a court that would otherwise be required. Irrespective of whether it may be said that, as a matter of domestic law, a Local Authority may give valid consent if they hold parental responsibility under a care order, HL v UK and Cheshire West make it plain that it is simply not open to the State, through the Local Authority, to avoid the constraints of Article 5 [50].
• Further that, the absence of connection by Lieven J with the authorities of HL v UK and Cheshire West may explain Lieven J’s difficulty in seeing ‘what the point of a DOLS order is on the facts of a case like J’s’ [51].
• The error of Lieven J was to focus on whether, as a matter of domestic law, a Local Authority may provide ‘valid consent’ in order to avoid engaging limb 2 of Storck. If, instead, the focus had been, as it should have been, upon the overarching purpose of Article 5, the inevitable conclusion would have been that, irrespective of the domestic law relating to parental responsibility, the State can never give valid consent in these circumstances [52].
• Lady Justice King adds to the judgment of Sir Andrew McFarlane P, that it is “…inconsistent with Article 5 for that organ of State to both create the conditions in which a vulnerable person is confined and then to be able to give valid consent [to that confinement] so as to remove the case from Art 5” [57].
• Lord Justice King adds a reminder to us all that human rights issues can arise in any legal context and that the Human Rights Act 1998, and the Convention rights to which it gives effect in domestic law, constitute the overriding legal framework for the determination of such issues, in whatever jurisdiction they arise. It is important therefore that sight should not be lost of that framework, and the values which underlie the fundamental rights which it seeks to protect, whatever the context in which those issues arise.