About the Family Law Week blog

The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.

The Blog is edited by Jacqui Gilliatt, of 4 Brick Court and Lucy Reed, of St Johns Chambers.

Sunday, 27 February 2011

Experts assessments & observations of contact: haggling with the LSC

I posted recently about a local issue where the LSC are apparently refusing to fund any element of an expert assessement which involves an observation of contact.  The temporary local solution which has been adopted is for the court to make orders that the costs be borne by the public funding certificates and giving permission to the solicitors to refer the matter to court for hearing should the LSC refuse to meet the costs on assessment, with a direction that the LSC file evidence explaining why they are refusing and attend a hearing.

In the meantime I have checked the funding code amendments.

Legal Services Commission Manual, Volume 1 Part D

This provides that the following costs are irrecoverable:

The costs of or expenses relating to any activity to promote contact with a child directed by the court under Section 11A to 11G Children Act 1989. This includes all programmes, consideration of suitability under Section 11E and other work to or with a view to establishing, maintaining or improving contact with a child or, by addressing violent behaviour, to or with a view to enabling or facilitating contact with a child insofar as such costs or expenses are not recoverable under Funding Code paragraph 1.3 (see Funding Code Decision Making Guidance paragraph 2.5). Funding for assessments under Funding Code Criterion 11.4.1 as to whether mediation is suitable to the dispute and the parties and all the circumstances is not affected by this exclusion.

However, the guidance adds:

9. The exclusion of risk assessments does not extend to specialist assessments of risk which require professional expertise (not of a social work nature) which is beyond that held by Cafcass officers/Welsh family proceedings officers. Such assessments, for example from a psychologist or a psychiatrist, required to inform the decision of the court may be based on some observation of contact, supervised or not.

10. However, the purpose of the report must be to express an expert opinion on risk and/or safety of contact in principle rather than any assessment of supervised contact itself or suitability for a domestic violence perpetrator programme. Any contact centre costs or fees must be met elsewhere and not included as part of the costs of the expert assessment. The work undertaken must also be within the scope of funding more generally – and not be excluded within paragraph 1.3(i) and/or (ii) as well as being proportionate. Costs will be subject to cost assessment in the usual way and any claim (or application for prior authority) must include an appropriate breakdown of the work done (or which is proposed to be done), the relevant area(s) of expertise/qualifications and the rates applied.
I can see no justification whatsover for any refusal by the LSC to fund expert observation of contact performed by anyone other than a Cafcass Officer.