Cost Contributions in Care of Children Proceedings

1. Often in proceedings involving children, the Court will appoint a lawyer to represent the child(ren), or direct a specialist report to gain insight into the child(ren)’s views and understanding of the situation.

2. Section 135A of the Care of Children Act 2004, provides a mandatory requirement for the Court to make an order for the parties to a proceeding to contribute a fixed proportion of the costs and expenses incurred for either a:

• lawyer for the child;
• lawyer to assist the court; or
• for psychologists and other specialist report writers

3. The usual break down of costs is for the Court to pay one third and each party to pay one third.

4. There are exceptions where it would cause serious hardship, either to the party or to a dependent child, or where it would be inappropriate for a party to have to be responsible for a third of the costs. In those circumstances the Court can decline to make an order or can vary the amount payable by a party.

Legal Aid What happens when one of the parties is receiving legal aid?

5. Section 45(2) of the Legal Services Act 2001 provides:

• 45 Liability of aided person for costs.
• (2) No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

6. There is an obvious tension between s 135A of the Care of Children Act 2004 and s 45(2) Legal Services Act 2001, where a party to Care of Children proceedings is a legally aided person.

7. Under s 135A, the Court must make an order for the party to pay a proportion of the costs for the lawyer for child (or other costs), but s 45(2) states that no order should be made against the person because they are in receipt of legal aid. Pomeroy [2016] NZHC 183

8. The recent High Court case of Pomeroy [2016] NZHC 183 has tackled this issue and addressed the question of whether the Family Court can make an order under s 135A against a party who has been granted legal aid.

9. The Judge considered the context of the two provisions noting that s 45(2) is a specific provision which applies only to persons who are in receipt of legal aid whereas s 135A is a general provision.

10. He then applied the principles of statutory interpretation to conclude that when Parliament enacted the general words of s 135A it did not intend to derogate from the specific provisions set out in s 45(2). Section 135A is therefore subject to s 45(2).

11. The Judge concluded that while an order under s 135A can be made against a legally aided person, it can only be made where the circumstances are exceptional as set out in s 45.

12. He commented that the practical effect of his judgment meant that persons who are in receipt of legal aid are unlikely to be subjected to an order for costs under s 135A.

Pomeroy [2016] NZHC 183

• Standard practice is for the costs and expenses of a lawyer for the child, lawyer to assist the court or a specialist report writer, to be split in thirds between the Court and each party (s 135A Care of Children Act 2004).

• The Court can decline to make an order or vary the amount payable by a party where it would cause serious hardship or would be inappropriate.

• There is a conflict between s 135A and s 45(2) of the Legal Services Act 2011 which provides no cost orders should be made against a person who receives legal aid unless there are exceptional circumstances.

• A recent High Court decision has found that an order under s 135 can be made against a person in receipt of legal aid but only where the circumstances are exceptional.

• In practice it is unlikely that a cost contribution order would be made against a legally aided person.