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(Divisional Court; Dyson LJ, Bennett and Pitchford JJ; 6 November 2008)
Although many people might find unconvincing the reasons advanced by the Government in justification of the increased level of court fees in public law care applications and placement order applications, the policy was not irrational and it was not unlawful. Local authorities had been and would continue to be compensated by the government for the loss of the subsidy previously enjoyed in public family law proceedings; that compensation was sufficient to avoid any real risk that the new fee regime might lead to the interests of vulnerable children being harmed. Those charged with the heavy responsibility of deciding whether or not to issue care proceedings were professional persons and there was no reason to suppose that they did not act conscientiously or were unaware of the importance of their work. If there were a risk that those charged with the responsibility for making these decisions might be tempted not to perform their statutory duties because of the demands of competing needs, there was nothing to prevent a local authority from ring-fencing the additional sum received by way of Formula Grant and stipulating that it could only be expended on fees in public law family proceedings. There was no authority for the proposition that, where Parliament had prescribed the nature and extent of consultation, a wider duty of consultation might exist at common law (in the absence of a clear promise or an established practice of wider consultation by the decision-maker). It was not the law that authorities must necessarily consult those who were liable to be disadvantaged by a proposed decision before they could make the decision.
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