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Family Law

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19 AUG 2015

R (Translation of Documents in Proceedings) [2015] EWFC B112

R (Translation of Documents in Proceedings) [2015] EWFC B112
IMPORTANT NOTICE
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the child[ren] and members of their [or his/her] family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: CM15C05170

IN THE FAMILY COURT SITTING AT CHELMSFORD

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF R (a child)

Date: 14th August 2015

Before

HH JUDGE LYNN ROBERTS
(sitting as a Circuit Judge)

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Between :

Suffolk County Council
Applicant

- and -

The Mother
1st Respondent

-and-

The Father
2nd Respondent

-and-

The Child  
3rd Respondent

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Hearing dates: 21.7.2015 and 14.8.2015

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JUDGMENT
Her Honour Judge Lynn Roberts:

[1]  I am asked to decide an issue which is important in this case, and on the basis that the decision will be applied in another case brought by the same Local Authority and may be of more general application. It is the view of those who have made submissions and of the court that it is an issue which needs to be clarified for many parties involved in care proceedings in this DFJ area and beyond. The issue is who should bear the costs of translating documents which are produced during court proceedings when one or more of the parents cannot understand English.

[2]  These proceedings concern one child and commenced by way of an EPO on 21.5.2015 and then as care proceedings on 26.5.2015. The mother and the father in this case are both Polish. They are both respondents to the application for a care order and are entitled to non means, non merits tested legal representation. Their English is such that they are unable to read the documentation unless it is translated into their own language, in this case Polish. The “application” documents which the Local Authority produced when starting proceedings have been translated by the Local Authority and there is no dispute that the Local Authority should bear that cost: it is agreed that the parents at the very start of proceedings may not have representation arranged and that time may not allow for the parents’ lawyers to arrange translation of documents. .

[3]  At the CMH on 22.6.2015 the issue of who should bear the costs of the translation of documents created or obtained during the proceedings was identified at a hearing before DJ Hallett and it was agreed that it was appropriate for the DFJ to determine it: a hearing was obtained on 21.7.2015.

[4]  On that day I read skeleton arguments from the parties’ advocates: Miss Rothwell for the Local Authority, Mrs Parry-Jones for the mother, Miss Webb for the father and Mr Wilson for the child and I heard submissions from the advocates as well. Attempts had been made by various of the parties to get a clear view from the Legal Aid Agency (LAA) as to their position and equally importantly, the basis for their position. This proved fruitless as I shall set out later.

[5]  Having heard submissions therefore, it was the view of the advocates, a view I shared, that the LAA should be invited to intervene pursuant to a formal invitation by the court, in order that a decision could be reached by the court which could be relied on in this case and in others with the benefit of the LAA’s considered position. I should add that on the morning of that hearing, when I was first aware of the issue, I attempted to speak to a senior lawyer at the LAA myself. I did not succeed but after the hearing I received a call from Mr Matthew Holden, a lawyer at the LAA who I understand had been asked by the person I had tried to contact to ring me. I explained to Mr Holden what the issue was and why I had taken the view that it would be helpful for the LAA to intervene. The parties, following the hearing, have provided the LAA with their skeleton arguments prepared for the hearing.

[6]  It was a surprise to me therefore to receive a letter by email from the LAA on 4.8.2015 which declined the invitation. I shall return to the full contents of that email later but it appeared that the LAA had not understood the documents which had been sent to them or the reason why their attendance had been sought.

[7]  I had adjourned the hearing for the purpose of securing the assistance of the LAA from 21.7.2015 until 14.8.2015 and on that date I heard from the advocates who were all of the view that we were no further forward as a result of the adjournment and that the LAA had failed to add clarity as to their position or the legal basis for their position. I heard briefly from the advocates who were the same save that Miss Connell represented the child in the place of Mr Wilson.

[8]  Turning now to the issue:
Ms Rothwell on behalf of the Local Authority relies on the case of Re L (Procedure: Bundles: Translation) [2015] 1FLR 1417 . That case involved a Slovakian father of a child who was the subject of care proceedings. The matter was listed before the President as it raised important matters: the LAA were unwilling to pay for a large number of documents to be translated into Slovene. The President determined that only those documents should be translated which were necessary for the proceedings to be resolved justly which in that case meant those documents, or parts of documents, which would enable the father to understand the central essence of the local authority’s case or which related or referred specifically to him. The remaining documents needed only to be summarised for him in his own language.

[9]  Miss Rothwell argues that the guidance in Re L assists in the issue before me by omission: there was no dispute between the parties or indeed with the LAA that the father’s solicitors would fund the translation costs on the father’s public funding certificate. The issue as far as the LAA were concerned was one of scale: they accepted the duty to fund the translation of documents for the father under his public funding certificate but objected to the number of documents sought on his behalf.

[10]  Miss Rothwell further submits that it is a duty of the solicitor instructed to decide which documents need to be summarised for the client in his own language and that it should not be for the Local Authority to play a part in that decision. She argued that if the Local Authority were to share the cost of the translation then it would need to be involved and a conflict of interest is likely to arise.

[11]  The Local Authority put forward 4 options for the court to consider:

  1. that the party requiring the translation funds this on their certificate;
  2. that the Local Authority pays all the translation costs; 
  3. that the translation costs are shared between the parties in equal shares; 
  4. that each party translates all of their own documents. 
Miss Rothwell asks that I order option 1. 

[12]  The mother’s solicitor argued in a brief position statement that the cost of translation should be shared by all of the parties. The solicitor relied on an email, referred to below, received by the child’s solicitor from the LAA confirming that the LAA thought that was the right approach. The solicitor expressed a worry that if option 1 was followed, the LAA might refuse to reimburse the costs. The position statement referred to the parent’s rights under Article 6 of the Human Rights Act. This was expanded on by Mrs Parry-Jones. She disagreed that a principle could be extracted by omission from Re L. She argued that it was not right for a parent to have to pay (via their public funding certificate) to show their innocence and relied on the principle that the costs of instructing an expert in care proceedings are usually shared. She agreed with the way forward proposed by the father’s representatives.

[13]  Ms Webb on behalf of the father prepared a detailed position statement. She also submitted that the general rule is that experts’ costs are shared between the parties in care proceedings. She had sought guidance from the LAA and the response received on 16.7.2015 said:

“…the MOJ has produced a guidance document for care and supervision proceedings which deals with letters before claim, and this states “ …if applicable it should be translated into the language used by the parent or carer…” It would be reasonable to assume therefore that the cost of all documents relied upon by the Local Authority should be translated by them. This would include final care plans, reports commissioned by the Local Authority etc.
As for the remaining documents, the Agency would expect the costs to be met by the party that seeks to rely on them. If they are for the benefit of the mother and the father only then we would expect the costs to be shared by both parties to avoid duplication of costs. For the costs of translating expert reports, if the instruction is a joint instruction then we would expect the mother and the father plus all parties seeking to rely on the contents of the report to share in the costs of translating the report to assist in the mother and father’s understanding.”

[14]  Miss Webb tried to extract some principles from that letter, and based on it, proposed that the Local Authority should pay the cost of translating the documents prepared by them; that the cost of translating documents prepared by the parents should be funded by that parent’s public funding certificate; that the cost of translating documents prepared by the Guardian should be borne by the child’s certificate; that any other documents admitted in evidence should be borne by all the parties in equal shares. She agrees that the Local Authority should not be involved in determining what needs to be translated for the parents and therefore proposes a mechanism whereby the parents’ solicitors advise the Local Authority which parts of the Local Authority’s evidence needs to be translated. She proposes a similar mechanism for the Guardian’s evidence.

[15]  Mr Wilson for the Guardian included in his position statement extracts from the LAA “Guidance on the Remuneration of Experts’ Witnesses” version 4.4.2015. The Guidance does not specifically deal with the issue but under the heading of Translation at paragraph 6.20 it states that “It will not usually be necessary to apply for prior authority for translation where the rate charged is…” Paragraph 6.21 says “The LAA will not fund the costs of translating documents relied upon by the Local Authority before the issue proceedings…” and paragraph 6.22 says “It is likely that not all the documents in the case will need to be translated….”

[16]  Mr Wilson points out the difficulties arising in interpreting the 16th July 2015 letter from the LAA especially as to who “relies” on which document in care proceedings. Mr Wilson spoke to an officer of the LAA on 1.6.2015 and was told that the LAA would expect the cost of translation to be shared between the parties. Mr Wilson submits that there is in fact no definitive or authoritative view on the issue either from the Agency or from the courts, and is hesitant about extracting guidance by omission from Re L .

[17]  After reading and hearing those submissions, I made an order on 21.7.2015 “upon noting that the email dated 16.7.2015 read in conjunction with paragraphs 6.20 – 6.22 of the Legal Aid Agency’s Guidance is ambiguous and upon the Court adjourning this matter to enable the LAA to attend to make representations

The Court orders
1.The Legal Aid Agency is invited to intervene and attend the hearing on 14.8.2015 to make any representations.
2. The LAA is to file and serve a Skeleton Argument by 4 pm on 11.8.2015 in the event that they wish to intervene/attend and make submissions.
3. The Local Authority to serve this Order and send to the LAA the skeleton arguments filed by 4 pm on 27.7.2015…..
The email received from the LAA on 4.8.2015 referred to above read as follows:

Dear Judge,
I am writing to your Honour in connection with your order of 21 July 2015. Paragraphs one and two of that order invited the Legal Aid Agency to consider intervening in these proceedings, and if it decided to do so, to serve a skeleton argument by 11 August 2015. Since writing to you last week, we have now recieved the Local Authority’s skeleton argument. One option which the Local Authority put forward at paragraph five of their skeleton is for the costs of translating documents into Polish be shared equally between the parties.
With this in mind, we have written to the Local Authority and to the solicitors representing the other parties and suggested that the costs should be apportioned equally between all the parties. We understand from the solicitors representing the father in these proceedings that any costs of the translation are likely to be within the limits set out in the LAA’s Guidance on the Remuneration of Expert’s Witnesses and so they can be paid by the LAA without the solicitors having to make applications for prior authority as previously indicated.
In the circumstances, we do not propose to intervene in these proceedings and hope that matters relating to translating documents can be resolved between the parties.

[18]  In my view and that of the parties, this email is very disappointing. Not only does it misunderstand the position of the Local Authority who set out the options for the court but did not endorse the option referred to in the first paragraph, but it also fails to set out any basis for the decision or clarify whether this is in fact a decision or merely “a suggestion”. I responded by return saying “You will of course be aware that I may order that the costs are not shared as you suggest because it may well be I take the view that it is not for the Local Authority to pay such costs.”

[19]  I did not receive a reply, nor did the LAA attend on 14.8.2015 nor did they respond to the invitation from Miss Webb to clarify their position.

[20]  It is therefore for this court to decide the point and it seems to me to be appropriate in the circumstances for this issue when it arises in other cases in my DFJ area to be decided in the same way. Other areas will have to decide their own approach but may find this case helpful until a higher court determines the issue. The LAA have had every opportunity to participate fully but have failed to assist the court or the parties by clarifying their position or the legal basis for it.

[21]  In my judgment it is not right for the costs of the translation of documents produced in the proceedings to be shared equally, nor for the more complicated arrangement proposed by Ms Webb in a valiant attempt to marry up the different advice from the LAA. I consider that the party who needs the documents translated should bear the costs and in this case that means that the LAA must bear the costs incurred on that party’s public funding certificate.

[22]  My reasons are several:

  • it is right for the Local Authority to provide translated documents pre-proceedings and at the point of issue of proceedings and to bear the costs of that; this is because at that time the parent does not necessarily have the financial ability to pay for this and is unlikely to have a lawyer and a public funding certificate which will cover those costs; it is also necessary because of the urgency of the situation;
  • thereafter the situation is very different. I do not think that translation of documents is properly described as expert work. It is not the subject of a Part 25 application and the translator provides no report or opinion for use in the proceedings. The role of the translator of documents is in my view much more like any other resource in the solicitor’s office. The position is comparable to that of interpreters. HMCTS pays for interpreters to assist parties at hearings; it is for the solicitor to arrange via public funding for interpreters to attend court for the purpose of taking instructions outside court (although this is often overlooked). It is also for the solicitors to arrange via public funding for interpreters to attend their offices for the purpose of assistance in taking instructions and giving advice. I do not see why written documents should be treated differently.
  • In the case of Re L the President determined various things. What was not decided because it was not an issue in that case is who should pay the costs of the translation. It was not an issue because it is clear from a reading of the case that the father in that case who needed the translation of documents was publicly funded and that the LAA were paying the costs of the translation. The President did not have to determine the issue as far as I can see because it was never raised on behalf of the LAA by one of the publicly funded parties and the LAA accepted the responsibility to pay the costs of translation. Following the case of Re L it is clear that it is not right for all documents to be translated for the non English speaking party. It is for that party’s solicitor to consider the documentation carefully and distil what his or her client needs to be aware of for the purpose of giving instructions and understanding the case. It would not be right or practical for all the parties to be involved in this process; it would not be reasonable for another party – who has to pay part of the costs – not to have the right to be involved in the decisions made by that solicitor. It is likely to lead to satellite litigation and delay.
  • I consider the complicated directions proposed by Miss Webb are unworkable, impractical, unfair on the Local Authority and unnecessary.
  • I do not consider that the Article 6 rights of the non English speaking party are at risk because the LAA will pay the costs of a parent who is a party to such proceedings in any event.

[23]  My order is that:

  1. The cost of translating the documents which are filed and served during the proceedings shall be paid by the party requiring the translation, provided that party is publicly funded. 
  2. Only such documents or parts thereof which are necessary for the party to have translated in order to understand the case as it relates to that party shall be translated; the expectation is that that party’s solicitor shall provide to the party a summary only of some of the documents. 

[24]  For the sake of clarity I add that there was no discussion in this case as to the position of parties who are not publicly funded, such as interveners or other family members, because it was not relevant to the case. Nothing I have said in this judgment should be read as implying anything about the funding of translation which may be necessary in such cases.

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