The High Court does not have power, under its inherent jurisdiction, to make a costs funding order against a local authority requiring it to fund legal advice and representation for a parent in wardship proceedings brought by the local authority where that parent has lawfully been refused legal aid, a judge has ruled.
The issue arose in HB v A Local Authority and Anor (Wardship – Costs Funding Order)  EWHC 524 (Fam), where the local authority chose to issue the proceedings in respect of the children under the inherent jurisdiction of the High Court rather than care proceedings under the Children Act 1989.
This meant the mother was not entitled to non-means, non-merits tested legal aid, as she would have been had care proceedings been issued. Her application for means and merits tested legal aid was refused by the Legal Aid Agency on the ground that her monthly income took her slightly over the income limit.
In a lengthy ruling, Mr Justice MacDonald said the argument that the court had the power – because it was in the interests of the child to have funding – was “superficially attractive legally, and has a greater moral attraction”, as was the submission that it was necessary to ensure the court’s procedure met the imperatives of the European Convention on Human Rights.
However, he said these arguments, “regrettably, do indeed dissolve into a mirage when they are analysed against the well-established legal principles that must, I am satisfied, be applied by the court when considering the nature and extent of its jurisdiction to order a public authority to incur expenditure”.
MacDonald J continued: “Those well-established principles, as articulated by the Master of the Rolls in Re K, are clear. Authority for public expenditure requires clear statutory authority, which authority must itself be in clear, express and unambiguous language. Within this context, a general power or duty cannot be used to circumvent a clear statutory code.
“Where Parliament has made detailed provisions as to how certain statutory functions in respect of legal funding are to be carried out, there is no scope for implying the existence of additional powers which lie wholly outside the relevant statutory code. These principles hold true following the coming into force of the Human Rights Act 1998.”
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