L (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 26 February 2015 |
| Neutral Citation | [2015] EWFC 15 |
| Court | Family Court |
| Date | 26 February 2015 |
| Docket Number | Case No: CV14C00431 |
[2015] EWFC 15
IN THE FAMILY COURT
Sitting at NORTHAMPTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: CV14C00431
Mr David Hadley (of the local authority's legal department) for the local authority
Mr Guy Spollon (instructed by Hammonds) for the mother
Ms Cecilia Barrett (instructed by Turpin Miller LLP) for the father (K) of child L
Ms Keira Gardner (of Kundert Solicitors LLP) for the father of the younger children
Ms Gill West (of Jackson West) for the children's guardian
Hearing date: 28 January 2015
This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I have before me care proceedings issued by Warwickshire County Council in relation to three children. The father of the oldest child, L, a girl aged 8, is a citizen of and resident in Slovenia. I shall refer to him as K. The two younger children have a different father. The proceedings in relation to L and her younger half-sibling were issued in the Family Court at Coventry on 30 April 2014. The proceedings in relation to the youngest child were issued on 30 July 2014. The final hearing, before a Circuit Judge, is fixed for 27 April 2015. So there has already been much delay.
K does not read or speak English. His native tongue is Slovene. He has not yet received a single document in the court bundle in his own language. Although he has the benefit of a solicitor who speaks Slovene he says that he cannot participate properly in the proceedings unless all the essential documents are translated into Slovene.
The issue came before the District Judge on 25 November 2014 when he made an order which in material part read as follows:
"K is unable to put forward a position at present until he has had the opportunity of considering the papers.
The Court notes that K agreed not to receive the full bundle of papers in Slovene. Turpin and Miller LLC instructed on behalf of K have produced a schedule of documents considered to be essential to be translated, as per the schedule attached. This was undertaken in an attempt to reduce the costs of translation.
…
The Court Orders …
The solicitor for K shall have leave to disclose the bundle of documents proposed to be translated to KL Translation Services for the purposes of obtaining a quotation as to the costs of translation. It is certified by the Court that the costs of translation of £0.102 per word is reasonable cost and costs justified to be expended on the public funding certificate of K. The Court certifies that it is necessary for the bundle of papers to be translated to Slovene so that they are accessible to K."
The scheduled documents run to 591 pages extracted from a court bundle which at that stage contained 989 pages. I am told that the quoted rate of £0.102 per word is less than the rate –£0.108 – prescribed by the Legal Aid Agency (LAA). I am also told that the cost of translating these 591 pages will be in excess of £23,000. So on average each page costs about £38 to translate.
The LAA's response to the District Judge's order, and to the application by K's solicitor for prior authority, was set out in two letters each dated 19 December 2014. One read as follows:
"I refer to your application for prior authority to incur over £23,000.00 translating a substantial part of the Court bundle from Slovenian to English.
This application is refused as it is not considered the expenditure is necessary or justified. It is accepted that if the client cannot speak or read English he does need to understand the evidence. However, it is very unlikely indeed that he will actually to read such a large volume of documentation. Further, unless the client is a lawyer or has some experience of the work done by child professionals, I cannot see that a verbatim translation would be of any real benefit to him. If the client were an English speaker, would you consider it essential that he was provided with a copy of the Court bundle?
I suggest you review your strategy and put together a further quote in which the conducting solicitor summarises the key documents for the client and then provides an estimate for the cost of translation of that summary for the client. It is the experience of the writer this is likely to result in a fraction of the cost of a full translation.
There is no right of appeal against this refusal. However, in the event that you decide to go ahead with the cost of the translation without prior authority, there will be a right of appeal to an Adjudicator in the event that these costs are disallowed on consideration of your High Cost Case Plan."
The other letter read as follows:
"Thank you for your request for prior authority. After considering the information provided, I have refused your application for the following reason(s): it is not considered that the expense is reasonable or necessary having regard to the issues in the case and/or the value of the claim.
Since the introduction of the 2010 Standard Civil Contract and the 2012 Family Contract there is no right of appeal.
If you have any questions, please call our Customer Service Team on the number at the top of this letter."
I am not at all surprised that the LAA decided as it did. Its decision was re-iterated in a further letter dated 6 January 2015.
On 22 January 2015 the matter was listed before the Designated Family Judge for Coventry, Her Honour Judge Watson, to consider what should be done in light of the LAA's stance. Judge Watson transferred the case to me, solely for the purpose of considering this discrete issue. It came before me when I was sitting at Northampton on 28 January 2015.
Bearing in mind the requirement of the Bundles Practice Direction, FPR 2010, PD 27A, para 5.1, that
"Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text",
it is at first blush surprising that the court bundle in this case is well over 2 1/2 times that size and that the number of pages to be translated is so greatly in excess of the bundle page limit.
When I inquired whether judicial approval had been obtained in accordance with PD27A para 5.1 to exceed the permitted limit, I was told that it had not. This did not surprise me at all. My experience, shared by far too many of my brethren, is that in this respect, as indeed in too many other respects, PD27A is frequently, indeed in some places almost routinely, ignored.
As long ago as 2008, in Re X and Y (Bundles) [2008] EWHC 2058 (Fam), [2008] 2 FLR 2053, over eight years after the promulgation of the original bundles Practice Direction in March 2000, I expressed myself in strong terms. I said (para 2), that:
"Th[e] continuing failure by the professions to comply with their obligations is simply unacceptable. Enough is enough. Eight years of default are enough. Eight years are surely long enough for even the most casual practitioner to have learned to do better."
I added (para 7) that:
"there is, and can be, absolutely no excuse for [practitioners] not being completely familiar with the Practice Direction and its contents and complying meticulously with its requirements".
Yet here we are, more than six years on, and almost fifteen years after the original Practice Direction, continuing to experience, and experience far too frequently, serious default in complying with the requirements of PD27A.
In Re W (Children) [2014] EWFC 22, para 12, I drew attention to PD27A para 6.4:
"The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, where the hearing is before a judge of the High Court and the name of the judge is known, shall (with the exception of the authorities, which are to be lodged in hard copy and not sent by email) at the same time be sent by email to the judge's clerk."
That had not been done. I said (paras 12–14):
"12 … in each case, as and when the various position statements did come in, they were sent to the court and not, as required, also sent by email to my clerk. Lest any pedant seeks to take the point that I am not a judge of the High Court, may I make it clear that this requirement applies as much to hearings before the President of the Family Division as to any other judge of the Family Division.
13 Compounding its earlier defaults, Bristol City Council also failed to comply with paragraph 7.4 of PD27A:
"Unless the court has given some other direction or paragraph 7.5 applies" – this relates to hearings listed before a bench of magistrates – "only one copy of the bundle shall be lodged with the court but the party who is responsible for lodging the bundle shall bring to court at each hearing at which oral evidence may be called a copy of the bundle for use by the witnesses."
Bristol City Council had lodged a duplicate bundle, marked 'Witness Bundle', and moreover in relation to a hearing where there was no suggestion that oral evidence might be called.
14 I take this opportunity of reminding practitioners of what I said, some six years ago, in Re X and Y (Bundles) [2008] EWHC 2058 (Fam), [2008] 2 FLR 2053. Failure by the professions to comply with their obligations under PD27A is simply unacceptable."
Subsequent experience of continuing defaults suggests that I was merely wasting my breath.
More recently, Mostyn J, in J v J [2014] EWHC 3654 (Fam), and then Holman J, in Seagrove v Sullivan [2014] EWHC 4110 (Fam), have been driven to express themselves in justifiably strong terms. Having complained that "routinely the profession pays no attention to" PD27A, Mostyn J suggested (para 52) that the remedy might be:
"to set up...
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