R (Hillingdon London Borough Council) v Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Mr Justice Bennett,Mr Justice Pitchford |
| Judgment Date | 06 November 2008 |
| Neutral Citation | [2008] EWHC 2683 (Admin) |
| Docket Number | Case No: CO/6359/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2008 |
[2008] EWHC 2683 (admin)
Lord Justice Dyson
Mr Justice Bennett
Mr Justice Pitchford
Case No: CO/6359/2008
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Supperstone QC and Joanne Clement (instructed by London Borough of Hillingdon) for the Claimants
Samuel Grodzinski (instructed by Treasury Solicitors) for the Defendants
Mark Vinall for the Law Society as Intervener
Lucy Theis QC, Hilton Harrop-Griffiths and Alistair Macdonald for the N.S.P.C.C as Intervener
Hearing date: 22, 23 and 24 October 2008
Introduction
In these judicial review proceedings, the claimants challenge the lawfulness of the increase in court fees for public law child care applications and placement order applications made by the Family Proceedings Fees Order 2008, SI 2008/1054 and the Magistrates' Courts Fees Order 2008, SI 2008/1052. Like the parties, I shall refer to these proceedings compendiously as “public law family proceedings”.
The Fees Orders were made on 7 April 2008 and laid before Parliament (subject to the negative resolution procedure) on 9 April. They came into force on 1 May. They put into effect the Lord Chancellor's prior decision that the principle of “full cost recovery” in setting court fees should be applied to public law family proceedings.
The rationale for the Lord Chancellor's decision was his wish to fix the fees at a level which reflects the true cost to Her Majesty's Courts Services (“HMCS”) in place of the previous level which was heavily subsidised. At first sight, the effect of the Fees Orders is truly striking. They raised the fees for public law child care applications from £150 to £4825 and the fees for placement order applications from £100 to £400. The fee of £4825 is payable in stages: £2,225 for issuing an application; £700 for an issues resolution hearing; and £1,900 for a final hearing.
The claimants say that the Fees Orders are unlawful on the grounds that they were (i) made without any consultation as to the principle of whether court fees paid in public law family proceedings should be increased to “full-cost” levels; (ii) were irrational; (iii) were made without regard to a relevant consideration and/or under a mistake of fact; (iv) defeated the claimants' substantive legitimate expectation that the increase in fees would be fully funded by Central Government; and (v) had a degree of retrospective effect.
The decision to raise the level of court fees has been heavily criticised in many quarters. It has been attacked by members of the judiciary, the Bar Council, the Law Society and the NSPCC. Both of the latter organisations were given permission to intervene in these proceedings. We are grateful to them for their assistance.
Applications for care and supervision orders are made under section 31 of the Children Act 1989 (“the 1989 Act”). A court may only make such an order:
“if it is satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) if the child is beyond parental control.”
The Adoption and Children Act 2002 places various duties on local authorities in relation to adoption. A local authority applies and pays for a placement order in public law care proceedings. A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the local authority.
The History of Court Fees
Fees have been charged by civil courts since the modern court system was established in the 19 th century. Shortly after the First World War, the policy became established that fees should cover the cost of the court system, but excluding judicial salaries and pensions and the cost of court buildings. From 1983/84, accommodation costs were included in the expenses to be met from fee income. In 1992, the policy was announced that all costs, including judicial salaries, should be borne by court fees. Since then, the policy of full cost recovery has generally been achieved in civil proceedings. This was not, however, the case with family proceedings (both public and private), where fees remained at levels which did not cover the full cost.
The policy of the Lord Chancellor in relation to court fees in public law family proceedings has evolved over time. In May 2004, a consultation paper on changes to civil court fees was published. At para 5.3, the paper stated:
“In contrast to non-family claims, the Lord Chancellor has concluded that for certain types of Family proceedings it would be wrong to set fees purely on the basis of the cost of the service provided by the courts. The Lord Chancellor considers that the issues at stake in Children Act applications, adoptions, and domestic violence applications, warrant an element of public subsidy. This is to ensure that would-be litigants are not deterred from seeking, for example, contact with their children or freedom from physical violence, because they cannot readily pay the full cost of the proceedings.”
This was followed by a further civil court fees consultation paper published on 2 April 2007 which at para 13 identified as one of its medium-term objectives:
“13. To agree and deliver financial objectives for family business for the 2007 spending review period and beyond. The SR04 66% target was based on achieving 100% cost recovery (net of Remex) for most non-children private law family fees. Different policy considerations may apply to public law care cases, adoption, domestic violence and private law children cases. For example, it is arguable that domestic violence injunctions should not be a fee-charging service at all (because of their urgency and the vulnerability of the applicant)”
Para 14.2 of the paper stated that “it was recognised in 1999 that it would be wrong for certain family fees to be set purely on the basis of cost. The “family subsidy”, which covers adoption, Children Act and domestic violence cases, enables fees to be set below cost. The subsidy is being reviewed.”
The policy decision to introduce the principle of full cost recovery in the setting of court fees in public law family proceedings was reflected in the spending settlement for the Ministry of Justice (“MoJ”) in the Comprehensive Spending Review 2007 (CSR07). This Review covered the 3 year period 2008–09 to 2010–11 and was published in October 2007. HMCS had calculated that the cost of public law family proceedings not covered by existing fees was £40 million per annum. This was the figure for additional income that was built into the MoJ CSR07 spending settlement. It was also the figure that was reflected in the local authority settlements for England and Wales by means of a block addition to the Formula Grant made to local authorities as a whole. I shall consider later the implications of including the sum of £40 million in the local authority settlements in this way.
On 19 December 2007, the MoJ issued a further consultation paper entitled “Public Law Family Fees Consultation Paper” which stated that court fees paid by public bodies in public law family proceedings would be increased to “full cost levels” with effect from April 2008. The paper stated that the proposal was to increase the court fees in child care proceedings from the existing figure of £150 to £4825 (£2,225 for issuing an application, £700 for an issues resolution hearing or pre-review hearing and £1900 for a final hearing). The paper did not seek responses as to the principle of increasing the fees to full cost levels. This was because, as was stated at p 7 of the MoJ Response to the December 2007 consultation paper, “it is not customary for Government to consult on overall financial plans and targets”. Nevertheless, the consultation paper did explain the rationale for the decision to make the change. It stated:
“Against this, the general arguments of principle in favour of charging for inter-departmental services are that:
• it promotes the efficient allocation of resources, by providing paying authorities with a greater incentive to use services economically and efficiently; and
• it improves decision-making and accountability by providing greater visibility of the true costs and benefits of the services provided by both the charging and paying authority.
Specifically, HMCS is taking steps to minimise the administrative cost to local authorities of paying magistrates' court fees (not just fees for care proceedings). HMCS is developing a new payment system that should mean local authorities will be able to set up accounts with magistrates' courts allowing them to pay all court fees incurred by single monthly or quarterly payments. This will substantially reduce the administrative cost associated with drawing a cheque in every case.
Social services departments are subject to a clear statutory duty to protect the interests of the children. It would be unlawful for them to avoid taking court proceedings for financial reasons where they considered that to be the appropriate step. Nor, given that the...
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