Delegation’s all you need

An expotition

I have heard a rumour of Local Authorities purporting to delegate their P.R. (obtained pursuant to interim care orders) to proposed carers (foster carers, extended family members etc) whom they support as long term carers for children in their care but who would otherwise not qualify for legal aid, as a device in order to trigger non means non merits tested legal aid – for example in order to secure funds for representation of proposed special guardians.

Yes. I scratched my head and furrowed my brow too. And then my legal trivia OCD has kicked in and here were are.

My first reaction, without having a red book or anything else to hand, was that a corporate body surely cannot divest itself of its PR in this way, like some kind of legal pass the parcel, and that it surely can’t do that merely to trigger eligibility for legal aid that it would rather not fund itself.  And then my second thought was that even if a corporate body can delegate some of its responsibilities in respect of PR it cannot transfer it so as to trigger the eligibility. But as is so often the way, my gut reactions were not entirely accurate. But then I am a bear of very little brain (Pooh v popular with the 4 year old at present).

So. The funding code (3c-427 pa 2) says this:

Because of the nature of these proceedings Legal Representation will be granted provided the relevant Criteria in section 4 of the Funding Code are satisfied. This means that children, parents and those with parental responsibility (including delegated parental responsibility under s2(9) Children Act 1989) will be granted funding without reference to means, prospects of success orst reasonableness. However, for applications made on or after 1 October 2007 criterion 5.4.5 (the Need for Representation) applies. This criterion ensures that parties are not unnecessarily separately represented – see paras 13 to 15 below. The same will apply to a child brought before the court under s.25 of the 1989 Act (use of accommodation for restricting liberty i.e. a secure accommodation order) who is not, but wishes to be, represented before the court. However, full representation will not be necessary if the child is already represented in criminal proceedings to which the s.25 application relates as the criminal legal aid order will cover those s.25 proceedings. Delegated parental responsibility is not required to be in written form but it is reasonable to expect it to be evidenced by a past course of conduct on the part of the parent sufficient to confirm a delegation. Where the solicitor is applying on behalf of a person to whom parental responsibility has been delegated they must attach to the application written details of the delegation, its timing and specific past exercises of the delegation so that it can be confirmed that the delegation has not been put in place merely to secure non means, non merits tested funding. A local authority will not be treated as having delegated parental responsibility by placing a child. Where a sufficient explanation of the past delegation is not submitted the application will be refused as it will not fall within the definition of Special Children Act Proceedings and, as a consequence, a non means, non merits tested certificate cannot be issued. [my emphasis]

Ok, so the LSC thinks it is at least theoretically possible…And you don’t need to transfer PR to trigger non means non merits tested legal aid, you just need to delegate it, as defined in S2(9) of the Children Act 1989 – it doesn’t use the word delegate but this is what it says, and when you read the section the distinction between delegation and transfer is clear:

A person who has PR for a child may not surrender or transfer any part of that responsibility to another but may arrange for some or all of it to be met by one or more persons acting on his behalf.

Now, my next reaction was that a Local Authority is a corporate body not a “person”, but “person” is not a term defined in the Children Act, but it is used throughout section 2, and section 33 which describes the effect of a care order, including that it vests PR in the Local Authority, does not state any exception or distinction in respect of what PR is or how it operates as between the corporate as opposed to biological parent. Further, section 5 Children Act, Appointment of Guardians, employs the term “individual” rather than person. This is also not a defined term in the Act. I think that it must be right that the deliberate use of those different terms confirms that : whereas a Local Authority (which is NOT an individual) cannot appoint a Guardian under s5, it can as a (legal) person delegate PR in the same way that an individual can pursuant to s2. There must be a difference between a person and an individual as chosen terms, and I think this must be it.

So. Now the tricky bit.

Of course, local authorities are engaged in delegation of PR all the time – to foster carers and kinship carers. But the code says that “A local authority will not be treated as having delegated parental responsibility by placing a child.” Which begs the question of what does amount to delegation for these purposes? Allowing them to make decisions about contact or medical care or schooling? For a Local Authority to delegate PR in this way would be to remove the parents from the equation altogether and to act almost as if the orders sought had already been made. Unlikely to be necessary, justified or appropriate in most cases.

I’m still not convinced this is anything other than theoretically possible, and can’t see how it would be appropriate other than rarely. It certainly isn’t permissible for a Local Authority to say it is delegating PR merely in order to get a different limb of the state to pick up the tab for the essential legal advice and representation (The Funding Code says a party must demonstrate that there is a course of conduct and the delegation is not “put in place merely to secure non means, non merits tested funding”).

Now I’m well aware that a little gossip at court about the latest wheeze may well have an element of the apocryphal about it, and I can acknowledge that the motives attributed to Local Authorities by lawyers may be coloured by our cynicism about the perceived resource driven motivation of much Local Authority decision making, but I have no doubt this mechanism for securing funding for proposed Special Guardians or proposed Residence Order beneficiaries has been used deployed somewhere by someone : the question that remains is whether the facts really justified it?

Does anyone have any direct experience?

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21 thoughts on “Delegation’s all you need

  1. I am surprised at the assumption that this was a Local Authority move.

    I have heard of extended family members who have care of the child being granted legal aid on a non means/non merits basis. However, it had nothing to do with any action or purported delagation by the Local Authority. It was apparently some creative action by a private solicitor who would not otherwise have had funding as the extended family members did not qualify on income basis and could not afford (or were not willing) to pay on a private basis.

    As a Local Authority solicitor I cannot think of any reason why the Local Authority would do this. If we are supporting a extended family member for a Residence Order/SGO then our case is the same as theirs and no need for them to be represented (why have yet another set of solicitors/barristers insisting on saying something just because they are there). If we are not supporting an extended family member it is not in our interests for them to be represented. Why would we do anything that would give those persons non-means/non-merits representation? Also if we are opposing an extended family member having permanent care of a child then we would not be delegating PR to them so they would not qualify.

    • Walklikeacat – I was surprised too. I don’t know if it is an accurate report. And I agree with your analysis of when a LA is likely to delegate or not, and when an extended family member might or might not require representation – although I can think of cases where foster carers were setting themselves up effectively in competition with parents (SGO v rehab) and where notwithstanding the support of the LA it was seen as helpful for them to be represented rather than just witnesses. I can see circumstances where a parent might legitimately delegate PR, with the knock on effect of a triggering of eligibility for legal aid, but I don’t think the LA is in an equivalent position for various reasons.

  2. What we used to do was place under interim supervision and residence which gave the carers pr and therefore access to legal aid.

    If making placements under ico’s then parties should be aware of the limits in the new placement regs around approving carers as foster carers.

    • Yes, and for reasons connected with the placement regs many local authorities are very reluctant to place with parents / family on care orders because of the perception that they will be to blame if it goes wrong – they prefer to manage risk by not sharing PR in the first place. Social workers have been known to insinuate in unguarded moments there is a blanket policy about this (we don’t place at home on care orders), only to correct themselves or be corrected by their legal team moments later (usually after someone mutters something about fettering of discretion).

      Returning from that tangent – yes, no reason why that shouldn’t work or should be criticised. But holding PR and then passing it over in the artificial way described in my original post is quite different.

  3. I would say manifestly that this delegation of PR isn’t appropriate for an LA. I can see why one would wish to achieve it – not just for budgetary reasons, but because the views of prospective special guardians are not always ad idem with the LA (on things like contact for example) and you run the risk of paying someone’s legal fees where they might be in conflict. Which raises unpleasant spectres.

    Also, there isn’t a DUTY to pay the legal costs of SGOs, just a POWER to do so.

    But I agree with you, that the LA is neither a person nor an individual. As far as I am concerned, the only time a LA can authorise a person to exercise PR on their behalf (as opposed to the day to day decision-making for the child) is when a Placement Order is made, which arises from s25 (3)of the Adoption and Children Act 2002.

    The fact that no such power is set out in relation to Part IV of the Children Act suggests strongly to me that it is not.

    I also don’t see how the LA can claim to be in compliance with s33(3) which states that whilst a care order is in force, they shall have the power to determine the extent to which a parent exercises PR (if they have ‘delegated’ their PR to the carer) nor the general duties of consultation. If the carer is genuinely exercising PR on the big important stuff (choice of school, religion, overseas trips, important medical treatment) how can the LA be confident that the parents have been properly consulted?

    It would also seem to me that unless the carers of the child were ‘exercising PR’ by making decisions about where the child was going to school, medical treatment etc, then they are not actually genuinely exercising PR.

    If I were the LSC, I wouldn’t be accepting that the carers signing letters agreeing to school trips and such was evidence that they were exercising PR.

    It smacks massively of a device, albeit a damn clever one. And I think that to be doing this at an ICO stage, rather than following a full Care Order is even weaker, if anything. Within the course of ongoing proceedings, where the LA are sharing PR, how many genuine issues about the exercise of PR actually happen that aren’t actually resolved by consultation/discussion/the Court taking a view?

    I’d be interested to know if any actual certificates had been granted on that basis.

    Now, a cleverer way, and one which COULD potentially be valid, is if the PARENT signed up to allowing the carer to exercise PR on their behalf under s 2 (9)

    [And now I am going to be law geeky – if the above is all wrong, why can’t a parent delegate PR under s2(9) to a LA who has an ICO – s2 (10) allows that to be the case – you can delegate your exercise of pr to a ‘person’ who already has it, [if an LA is a ‘person’ for s2(9) then they are for s2(10), surely, and the LSC can fund the LA legal costs on that basis…Hoorah for my legal budget!
    I’m being sarcastic, but it seems just as permissable on the funding code as what is purported to be happening here. )

    • Andrew you are a geek and I love you for it (if only because in comparison I look marginally less geeky). I hadn’t thought of all those points (s33(3) etc.
      Yes, I did wonder about your last point, but no doubt there is some broad overarching rule / principle etc that makes legal aid (in family cases) available for only actual people, not corporate or public bodies.

  4. I have had exoerience of cases where a *parent* has delegated PR to another family member to assist in that person getting legal aid so they can be represented, but it has been in cases where a child is being cared for within the wider family and the parent is supportive of that – I have in the past sucessfully obtained legal aid for grandparents on that basis (for representation in Care Prioceedings and subsequently to obtain SGOs) and I have acted for a mother who was able to delegate PR to her own mother for the same purpose (Mum in both cases having accepted that the children were not going to be returned to her).

    However, I have not come across it where the ‘person’ seeking to delegate PR is the Local Authority, and I suspect that the LSC would be much less receptive to granting funding in those circumstances.

    I have also come across a case where the LA was prepared to provide some limited fundign to allow the Grandparents to apply for an (Interim) Residence Order to acheive the same end (although the mother in that case was prepared to delgate PR once it was suggested to her, so the Residence Application was not made)

    My experience is that wehre the LA’s plan is for placement with extended family they will usually provide funding if necessary to allow the family member to make an appropriate application, if the famiy member is not eligable for Legal Aid.

    I’d be very interested to hear whether anyone has come across a LA delegating PR and the LSC granting funding as a result.

    • My experience mirrors yours Marjorie. It was suggested to me that an LA had successfully deployed this tactic to avoid funding the proposed carers legal fees. As noted previously, this may be unreliable chinese whispers but it did intrigue me, hence the post.

  5. A local authority is a legal person, if it was not it would not be able to do basic things like enter into a contract.

    I would personally like to see the family law practitioners who post here state what they think of the case where a Family Division judge appears to have connived at a local authority breaking international law, despite a High Court ruling only a couple of weeks ago stating categorically that a local authority must comply with international law.

    Or alternatively, the case Camilla Cavendish referred to on the Today programme this morning where a doctor caused a baby to be taken away from its family for 5 months because of his inability to diagnose. No-one at the local authority in question appears to have asked same fairly basic questions, such as ‘what is your evidence?’. Her general point about breach of patient confidentiality seemed to me to be well-made.

    • No dispute on your first sentence Gladiatrix.

      Can’t comment on your second para because I’ve no idea what you are referring to. Very cryptic. Can you enlighten us (without breaching privacy rules)? Is there a judgment?

      As for Camilla Cavendish – I caught the end of it and am going to catch up on iplayer, but as far as I could tell from the extremely limited information she gave a doctor had concerns about an injury that might have been deliberately inflicted. He made a child protection referral (she seemed bizarrely to be suggesting that this should not happen – are you?). Care proceedings were issued and after a hearing at which the parents will have had an opportunity to be represented a court sanctioned separation pending investigation. No doubt after receipt of expert evidence the court was able to be clear that the injuries were not deliberately inflicted. For this family a terrible terrible five months, but ultimately the right outcome. I don’t see that the operation of the child protection system can be criticised here – where there is a suspicion of NAI children should be safeguarded, and parents should be given the opportunity to properly challenge allegations with the benefit of independent expert evidence – rather than just the evidence of a treating physician who makes the referral. That takes time. It would have been better if it had not taken 5 months, but nobody has a magic wand.

  6. I agree with walklikeacat, if this is happening, my money is on some creative work by someone representing the carers.

  7. And from the LSC’s own funding code

    “Because of the nature of these proceedings Legal Representation will be granted provided the relevant Criteria in section 4 of the Funding Code are satisfied. This means that children, parents and those with parental responsibility (including delegated parental responsibility under s2(9) Children Act 1989) will be granted funding without reference to means, prospects of success or reasonableness.”

    So, “those with” parental responsibility could potentially include the LA once they have their ICO, and they haven’t properly excluded the LA. They should have said ‘individuals” or “people” with, or even excluded ‘corporations with’.

    Am now calculating how much they owe my LA…

    It also seems to me that someone could justifiably ‘delegate’ their PR under s2(9) to a multitude of people, there’s no requirement for it to be one person, or a small number of people. In fact it expressly says “one or more”. I could seemingly delegate my PR to “all supporters of West Ham United Football Club” and they could vote on all important decisions… So, I could have the LSC deluged with applications for non means non merit public funding from 30,000 people.

    “We’re going to need a bigger court”

    [I suspect, when I retire, that my hobby is going to be making the lives of corporate bodies a misery. I already have some grand schemes in relation to CCTV and the inordinate trouble you can make an organisation who has it go to, because of the Information Commissioner policies that none of them follow]

    • Oh dear God, this will in fact be adopted by campaigners in order to get into court – I will hold you responsible!

  8. Getting legal aid doesnt get you party status though. It is an amusing concept, admittedly from my now non practicing perspective.

    • spoiler! It would get you funding to make an application for party status though, which would have a certain nuisance value…

  9. On the delegation point presumably if the LA held an ICO they could prevent a parent from delegating their PR where they thought it was necessary to safeguard or promote the welfare of the child under s33(3)(b).

    • That must also be right. God this is tortuous isn’t it…? But how would the LSC (in this totally hypothetical world) know that the purported delegation of PR had been vetoed by the LA with its management rights over the parental PR?

  10. The case of the breach of International Law was reported by Christopher Booker last week.

    Camilla Cavendish did not say the child had been injured at all. The point is that the doctor did not know what was wrong with the child, and instead of asking for a consultant to come and assist with the diagnosis assumed that someone had injured the child. That that someone was the father, for which he had no evidence whatsoever, and made a call to Social Services which was entirely unjustified and frankly defamatory.

    If the doctor had done his job properly the child would never have been taken into custody. Camilla Cavendish has since told me that the parents have asked for a meeting with the hospital and are being given the run around by the NHS Trust involved.

    • OK well I prefer to rely upon judgments that give a comprehensive account of what has happened than the partial accounts of Mr Booker or other journalists. You just can’t sum up a care case in a sentence like Cavendish purported to do on Today. The problem with accounts from the press of this kind is that they only have the parents as source information. Occasionally they have been to court, but usually not, and usually they will have interviewed only those aggrieved with the process. So whilst things do go wrong in care cases (as reported in judgments from time to time) I don’t think these are strong sources of evidence for that. If you can point me to a judgment on BAILII then I will happily give you a view.

  11. ” Andrew Pack – really nice idea…but…

    Part 1

    The Funding Code: Criteria

    3A-018

    4.5 Identity of Client

    An application will be refused unless it is on behalf of a client who is an individual and who satisfies such other conditions as are specified in the Code Procedures.

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