Posted on | November 5, 2012 | 21 Comments
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?