Family President expresses hope of “very substantial reduction” in number of public law children cases where councils have to cover shortfall in expert fees

The President of the Family Division has backed a set of ‘general principles’ which aim to reduce the number of cases in which a local authority is expected to cover a shortfall in expert fees in public law children cases.

In Re K and Re S (Legal Aid: Experts’ Fees) [2025] EWFC100 Sir Andrew McFarlane confirmed that a local authority should not “routinely” be considered as a source of funds to make good any shortfall in the instruction of an expert, unless the court is satisfied, among other things, that there has been “proper exploration” of other experts who may be able to complete the work within the prescribed rates and for the prescribed number of hours.

The case considered what should happen in a situation where a Family Court has authorised the instruction of an expert witness in public law proceedings, and has directed that the expert’s fees are to be covered by equal contributions from each party, but where the rate to be charged by the expert exceeds that which the Legal Aid Agency (LAA) is prepared to sanction.

In January this year the Family President heard argument on this issue in two cases, which were unrelated save that each had been brought by the London Borough of Barnet.

He said: “In each case, the fees to be charged by one or more of the experts to be instructed exceeded the rate that, after consideration, the LAA was prepared to pay.”

All of the parties, save for the local authority, were legally aided.

The court had previously directed that the fees were to be split equally between the parties, including the local authority, but the LAA was only prepared to sanction payment by the legally aided parties at a lower rate, leaving a shortfall in the overall fee.

The judge said: “The point, not unreasonably, made by Barnet was that the court should not simply turn to the local authority as a matter of routine and expect it to cover the short-fall, without at least first undertaking a thorough exploration of any reasonable alternative courses of action.”

The Family President revealed that some months before the hearing, following receipt of a letter signed by 88 different local authorities raising the point, he had invited Mr Justice Williams to convene a sub-group of the President’s Experts Working Group - the ‘experts group’ -  to consider the issue.

He said: “During the hearing I was informed that the experts group, which had been assisted by attendance from the LAA, was soon to conclude its work.”

At the time, the Legal Aid Agency was also in the process of reviewing its guidance on the issue. Therefore, judgment was delayed pending the outcome of the experts group’s discussions and the revised LAA guidance.

At the final hearing, Barnet – “who are to be applauded for taking this point on behalf of many, if not all, local authorities” – sought the court’s endorsement of a set of ‘general principles’, which had been submitted to, and accepted by, the experts group.

Outlining the position of the Legal Aid Agency, the judge said: “For the LAA, Ms Mockford was keen to stress that, until the matter had received prominence in recent times, the LAA had not been aware of the widespread practice of legally aided parties persuading local authorities, or courts ordering local authorities, to make up the difference when there was a shortfall in the payment of the fees of an appointed expert.”

Counsel for the LAA submitted that it was “notable” that neither the importance of the underlying proceedings, in general terms, nor the importance of the issues in question to the overall proceedings, is a factor which the Remuneration Regulations permit the LAA to take into account when determining whether there are “exceptional circumstances” within the meaning of paragraph 2 of Schedule

The definition at paragraph 2(2) requires that:

1. the evidence that the expert will give is key to the client’s case; and
2. either the complexity of the material means that an expert with a higher level of seniority is needed, or the nature of the material means that “only very few experts are available”.

At the time of the final hearing, the LAA had amended its ‘Guidance on the Remuneration of Expert Witnesses in Family Cases’ - making clear that it is not the intention of the LAA that local authorities should make up a shortfall in expert fees (other than in unusual circumstances).

Sir Andrew said: “The revised guidance, which was issued in April 2025, also makes clear what criteria (exceptional circumstances) are to be met for the LAA to grant prior authority to instruct an expert where the fees or hours exceed those set out in the Remuneration Regulations or Guidance.”

A checklist is also included to ensure all relevant information is submitted to the LAA.

Outlining the positions of the other parties at the final hearing (the parents and children in the two cases), the judge said: “By the time of the full hearing, the underlying landscape had moved on as it was clear that the LAA accepted that, save in unusual circumstances, legal aid should cover the fees of an expert instructed under prior authority and the local authority should not be looked to, to fund any shortfall. The submissions made on behalf of the respective parents and children in the two cases were therefore limited and focussed on the important question of delay.

“A primary concern was that any question of the parties contemplating judicial review of a decision by the LAA not to fund (or not to fund fully) an expert’s fees would generate a potential for real delay to the substantive proceedings. More generally, counsel described any process of submitting further detail to the LAA and inviting the LAA to review a ‘prior authority’ decision would be bound to cause delay and would, in any event, represent a significant amount of work for the lead solicitor.”

However, the Family President added: “Whilst, as a matter of process, these submissions were undoubtedly sound, any review or challenge to a LAA decision must inevitably take time and be a potential cause for delay. I would however question the assumption that progress in the care proceedings must necessarily be put on hold as a result. This is partly because, once the paperwork supporting a request for the LAA to review its decision has been submitted, the court was told that the LAA would act quickly, in a matter of days, to look again at its decision. Further, in such a case, where the need to secure funding in order for the expert to start work is pressing, then it is open to a court to do as I did in the present case and provide for any shortfall to be covered in the interim by the local authority pending review of, or challenge to, the LAA decision.”

The judge noted that having considered the issues involved in the case, the experts’ group endorsed a list of general principles proposed by Barnet in the following terms:

i. Those seeking to instruct an expert should make all efforts to identify an expert with the requisite experience and expertise who works within the prescribed rates and the prescribed number of hours and can report within an acceptable timeframe.

ii. If such an expert can be identified then that expert should be preferred by the court absent any exceptional reason.

iii. A local authority should not routinely be considered as a source of funds to make good any shortfall in the instruction of an expert.

iv. A local authority should only be ordered to pay for the shortfall of an expert where the court is satisfied:

a. That there has been proper exploration of other experts who may be able to complete the work within the prescribed rates and for the prescribed number of hours.

b. That the application for prior authority that has been considered by the Legal Aid Agency has been argued fully and included all material relevant to the decision making of the Legal Aid Agency.

c. That the parties (including the Local Authority) have given proper consideration to the possibility of a claim for judicial review against the Legal Aid Agency.

d. That the reason given by the Legal Aid Agency for refusing to approve the application for prior authority was full and enabled the court and the parties to understand the reason for refusal.

The experts group further suggested a template for court orders made when approving the instruction of an expert where the hours or rates will exceed the LAA rates/hours. The terms of the template were agreed by the Legal Aid Agency.

The judge said: “Courts should henceforth use this template in order to record the decision in such cases in a uniform manner which is compatible with the need to give the LAA relevant information when considering any application for prior authority.”

In his concluding observations, the President of the Family Division said: “It is apparent that some real progress has been made in clarifying the approach that the LAA intends to take to these cases in the future. In particular, the LAA has been clear that it is not its intention that a local authority should be expected to make up any shortfall, save in unusual circumstances. The template order should ensure that all relevant information is supplied to the LAA before it considers whether prior authority should be granted. Where there is a likely shortfall, then the general principles identified by the experts’ group are aimed at ensuring that the LAA has been provided with full information, that the internal LAA procedures (including any review) have been followed and the possibility of challenge by judicial review has been given reasonable consideration. Only then, when the court is satisfied that these other reasonable steps have been properly taken, should it turn towards the local authority as a possible source of additional funding.”

He added: “The steps within the general principles should ensure that an expert is only to be instructed at a rate outside the prescribed rate or in excess of the prescribed hours where to do so is justified by some ‘exceptional reason’, and that, when applying for prior authority, the LAA has been supplied with full information justifying that decision.

“Whilst I endorse this statement of general principles, and I would urge courts and parties to apply them whenever the issue of funding of experts outside the statutory rates arises, I would suggest that an additional subparagraph (iv)(bb) should be inserted to ensure that full use is made of the option for informal review by the LAA:

(iv)(bb) That an application has been made to the Legal Aid Agency to review its decision under paragraphs 3.22 and 3.25 of the Remuneration Guidance.”

He continued: “Where any process of review may take time, and postpone the chosen expert starting work, a court should consider arranging (either by agreement or court order) for the local authority to cover any shortfall on an interim basis pending further consideration by the court once the LAA process, and any challenge, has run its course.

“In line with the express wording of paragraph 2.4 of the revised Guidance, the fact that the local authority may be covering the shortfall in the interim is not a relevant factor for the LAA when considering an application for prior authority.”

The Family President said: “It is to be hoped that these developments will lead to a very substantial reduction in the number of cases in which there is any question of a local authority covering a short-fall in expert fees in public law children cases.”

Lottie Winson