£350k taxpayers' bill to defend Muslim pubes
From Brother Ivo:
It is almost impossible to offer original comment upon the story of over £350k of taxpayers' money being spent litigating whether a disabled 30-year-old woman who will never live with her family should, at their insistence, have her pubic hair shaved.
The young woman herself did not have the legal capacity to consent to this happening, and was represented throughout by the Official Solicitor. The report here will exasperate, outrage, and bewilder everyone who thought we lived in an age of austerity, especially those who imagined that Chris Grayling's denial of Legal Aid to most family law disputes might have seen an end to such gold-plated exercises in political correctness.
Having been listed for 10 days of court time, the issue deflated like a failed Great British Bake Off Victoria sponge, leaving the Judge suitably bemused. Mr Justice Roderick Wood was a good choice for the case and was characteristically clear in expressing his bafflement.
It will be interesting to see the full report if one is forthcoming, although as the case presented no issue for adjudication we may never know much more than we do now.
The response of the majority of the public will be predictable and likely to diminish the reputation of the law in public esteem.
Brother Ivo offers a few provisional thoughts.
There were two issues before the court: whether the young woman should return home after being in continuous local authority care for five years; and whether she should be shaved. The issues are perhaps linked but separate, so we need to be cautious about attributing all the costs to the headline-grabbing issue. There is frequently more than meets the eye to these stories and there may have been some merit in testing the issue of where the young woman should live. That does not usually cost £350k, however.
Be that as it may, there has plainly been an utter failure of case management to bring the principle of proportionality into account. How that responsibility is apportioned may be worth investigating. The parents' lawyers were publicly funded. They had a continuing duty to keep the matter under review and not just spend public funds in pursuit of their client's wishes. The Legal Services Agency would have had to extend the costs limit of the parents and the subject of the case, on a periodic basis. Once each person's case costs exceeded £25k, the matter would have been referred to the Legal Aid Agency's High Cost Unit which is supposed to have specialist expertise in managing such expenditure. They would have required case plans with appropriate expert and Counsel's fees factored in. Did no one there ask questions? If they did not, what exactly is their purpose?
The Local Authority had their own in-house lawyers and outside Counsel to advise. They should be mindful of both public costs and the scarcity of Court time. As the merits of the case ebbed toward the parents' surrender, they might have been raising concerns both in liaison with the other parties and by putting the matter before the Court of their own motion, inviting the Court to make a bold case management call.
It is not clear whether ED, the person under disability, was represented by external lawyers or the Official Solicitor's staff. Whoever represented, other minds were fully aware of the facts and merits of the case. They, too, had an independent duty to consider whether the dispute was being properly case managed.
It may be reasonable to have spent some money on the matter, but there can have been no excuse to have delayed securing the evidence of the "cultural expert" whose unchallenged evidence was that there was no religious imperative to comply with the cultural norm of depilation in the case of a woman lacking personal decision-making capacity. Once that evidence became "unchallenged", there was no issue to have been determined. Until such evidence arrived, there was no need to expend much on that issue: proving the alleged norm by which that aspect of the case was to be judged could have been addressed within the first three months.
Primarily, however, it was the Court which carried the ultimate responsibility. District judges and judges are empowered and encouraged to take control of the way in which the evidence is collated, the issues defined, the timetable estimated, and the costs contained. Every day, up and down the country, parents are being persuaded, advised, cajoled and sometimes near-bullied into giving up cases without significant merit. "Gatekeeper" judiciary are keeping their colleagues on their toes, allocating cases and monitoring targets set by Ministry of Justice bureaucrats to hit performance targets, and avoid losses like the 10 days of judicial time wasted here.
The whole ethos has become cost-and-time-management conscious. Judges can and do require experts to liaise on narrow issues and only bring matters of serious disagreement for adjudication.
All this seems to have failed. Why might this be?
It is hard to escape the conclusion that this was identified by all concerned as a politically and culturally-sensitive issue which nobody dared to end by an application of intellectual strength and common sense at an early stage. Nobody ever believes they will blight their career by going along with the politically correct zeitgeist. This would be a good case to disabuse our courts and publicly-funded lawyers and officials of that notion.
There is one final observation. At the end of a publicly-funded case, the bills of the legally-aided parties are drawn up and itemised with every letter and phone call logged, every interview and document read or drafted duly time-recorded. A District judge then 'taxes' the bill, disallowing any excessive or questionable part of the claim. There is a wide discretion permitted.
In a case of this kind, it would easy for public ire to be expressed through that mechanism against the parents and subject's lawyers. It should not be the occasion for scapegoating. It is the obvious place for punitive action to be applied but it touches only a minority of those bearing responsibility.
The Local Authority, the Legal Services Agency, the Official Solicitor's office and the Case Managing Judges all stand apart from that process. Public anger should prompt action, but any penalties and consequences should be fairly distributed. If there are consequences after the row has died down we should know, and we should be satisfied that there has been no targeting of those in the private sector to protect the agencies of the State.
Brother Ivo is the Patron Saint of lawyers