18 August 2015 by Monidipa Fouzder
Judge
criticises LAA over translation costs
The
Legal Aid Agency has been criticised for its lack of cooperation in determining
who should bear the cost of translating documents during court proceedings.
The
agency was invited by Her Honour Judge Lynn Roberts, sitting at Chelmsford
Family Court, to clarify its position and the legal basis for it in care
proceedings brought by a local authority. The matter pertained to Polish
parents who were entitled to non-means-tested and non-merits-tested legal aid who
were unable to read untranslated documents.
In
her judgment, Suffolk County
Council v The Mother and The Father and The Child, Roberts highlighted
‘fruitless’ attempts to get the agency to ’provide a clear view’ of its
position ’and equally importantly, the basis for [its] position’.
The
agency, she said, was invited to intervene in the case ‘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’.
Roberts
said she was surprised to receive an email from the agency in which it declined
the invitation and suggested that costs be split equally between the parties
involved. This was one of four options put forward to the court by the local
authority.
Roberts
said the agency, in its ‘disappointing’ email, not only misunderstood the
position of the local authority but also failed ’to set out any basis for the
decision or clarify whether this is in fact a decision or merely “a
suggestion”’.
The
agency did not attend court to make representations or respond to an invitation
by the father’s lawyer to clarify its position, the judgment stated.
‘The
LAA has 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,’ Roberts said.
Roberts,
not believing it to be correct that costs should be shared equally, said the
role of translators was ‘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 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),’ Roberts said.
‘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.’
Roberts
ordered that the cost of translating the documents filed and served during the
proceedings be paid by the party requiring the translation ‘provided that party
is publicly funded’. As a result, the agency would bear the costs incurred on
that party’s public funding certificate.
But
‘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’, she ordered.
Roberts
said no discussion in relation to the position of parties who were not publicly
funded, such as interveners or family members, had taken place ‘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’, she added.
A
Legal Aid Agency spokesperson said: ‘Legal aid can be provided for translation
services where appropriate. We have been in contact with the court in
relation to this case and have established that funding can be provided in
these particular circumstances.’
