M & R (Children) (Refusal of Legal Aid Costs) [2025] EWFC 299 (B)

[2025] EWFC 299 (B)Case No. SE24P00098
IN THE FAMILY COURT
Date Monday, 22 September 2025
SITTING AT LEICESTER
15 Pocklingtons Walk
Leicester, LE1 6BT
Before
MR RECORDER O’GRADY
Between
AMApplicantJDRespondent
M & R (CHILDREN) (REFUSAL OF LEGAL AID COSTS)
The Applicant appeared in person for in personReshma Khanom as Qualified Legal Representative for ApplicantJay Muirhead (instructed by Cartwright King Solicitors) for RespondentSona Chadarana for Cartwright King SolicitorsHearing Hearing date: 10 September 2025JUDGMENTThis judgment was handed down remotely by the Judge by circulation to the parties’ representatives and release to The National Archives. The date and time for hand-down is deemed to be 2:00pm on 22 September 2025.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 children and members of their 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.Mr Recorder O’Grady:Introduction
[1]On 10 September 2025 the Court concluded it was (once again) necessary to adjourn the Fact-Finding Hearing in these private law Children Act 1989 proceedings and, after requiring Cartwright King Solicitors to show cause why the Court should not refuse to allow some of its costs charged to the Applicant’s legal aid certificate, with the consent of Cartwright King Solicitors, refused a sum of costs the firm charged to the Applicant’s legal aid certificate. This judgment explains those decisions.[2]This case is about { } (born { } 2011) and { } (born { } 2013) (collectively “the children”).[3]The Applicant is { } (“the Father”), who is the children’s father. The Father represents himself. At this hearing he was assisted by Qualified Legal Representative, Ms Khanom.[4]The Respondent is { } (“the Mother”), who is the children’s mother. The Mother was represented at this hearing by Mr Muirhead, of counsel. An Urdu interpreter attended on the Mother.[5]I will refer to the Mother and the Father collectively as “the parents”.[6]Cartwright King Solicitors was represented by Ms Chadarana.[7]The history of this family and the children is of limited relevance to the determination of the case management and costs issues, save to observe that it is common ground the children have not spent time tithe Father for approximately two and a half years.

Procedural Background

[8]The Father’s application for a Child Arrangements Order by C100 was issued on 7 March 2024 out of the Family Court at Sheffield. Directions on issue were made on 14 March 2024. A FHDRA was listed to take place at the Family Court at Sheffield on 23 May 2024.[9]That FHDRA was heard by District Judge Preston. The Father attended the FHDRA. The Mother did not and nor was she represented, notwithstanding Cartwright King Solicitors filed a Notice of Acting. The Court’s order records that the Mother had been waiting to join the hearing by telephone. The Court concluded that a Fact-Finding Hearing was necessary. Directions were made for the filing of witness statements and the proceedings were listed for Directions on 8 August 2024.[10]On 3 July 2024 the Mother caused an application to be issued transferring the proceedings to the Family Court at Leicester. On that day an order was made in chambers transferring the proceedings.[11]On 30 July 2024 District Judge Birk (as she then was) sitting at the Family Court at Leicester listed the proceedings for a second FHDRA on 21 November 2024.[12]That second FHDRA was heard by District Judge Asjad. The Father represented himself and the Mother was represented by counsel. That day the Court had before it what was purported to be a witness statement made by the Mother. That document was prepared in English. The document does not bear a signature nor is a date written onto it. The Court considered a schedule of seventeen allegations and dispensed with two of them. The remaining fifteen allegations were listed for determination at a Fact-Finding Hearing to take place commencing on 30 June 2025.[13]The proceedings came before District Judge Jeffers for Fact-Finding Hearing on 30 June 2025. The Mother applied for the hearing to be adjourned because certain documents from ordered police disclosure had not been received. That application was granted and the proceedings listed to be heard before me for one and a half days commencing 9 September 2025.[14]It is regrettable that, despite the Mother being represented by counsel on 21 November 2024 and 30 June 2025 (as well as having the benefit of an interpreter), the Court was not assisted by the identification of the problems with what was purportedly the Mother’s written evidence.

The Mother’s Purported Witness Statement

[15]The Mother does not speak English. She communicates in Urdu. The document purporting to be her witness statement is written in English.[16]At the end of the 28 paragraph document that purports to be the Mother’s witness statement is the following:
“I believe the facts in this witness statement are true and I make this statement knowing that it will be filed with the court and copies served on all the other parties in the case. Signed ……………………………… [ Mother’s Name Typed ] Dated: I, { }, employed by [Translation Company], confirm that I have translated the contents of this statement to the Respondent, { }, from English to Urdu. { } has confirmed the facts in this witness statement to be true and understands that it will be filed with the court and copies served on all the other parties in the case. Signed: [Typed Name] Dated: 27 June 2024”
Signed ……………………………… [ Mother’s Name Typed ] Signed: [Typed Name]

Preparation of Written Evidence in Family Proceedings

[17]Rule 22.4 of the Family Procedure Rules 2010 provides:
‘(1) A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally. (2) A witness statement must comply with the requirements set out in the Practice Direction 22A.’
(emphasis added)[18]Paragraph 6.4 of Practice Direction 22A – Written Evidence (“PD22A”) provides: “A witness statement must include a statement of truth by the intended maker as follows: ‘I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. ‘I believe that the facts stated in this witness statement are true.’[19]The document purporting to be the Mother’s witness statement does not comply with Rule 22.4. It is not signed by the Mother and the required statement of truth has not been included in the document.[20]Paragraph 8.2 of PD22A provides:
‘Where the affidavit/statement is in a foreign language – (b) the party wishing to rely on it must – (b) have it translated; and (ii) must file the foreign language affidavit/statement with the court; and (b) the translator must sign the translation to certify that it is accurate.’
[21]In NN v ZZ & Others [2013] EWHC 2261 (Fam) Peter Jackson J (as he then was) recorded “basic principles” about the way in which evidence from witnesses who do not speak English should be prepared (at [60]):(1) An affidavit or statement by a non-English-speaking witness must be prepared in the witness's own language before being translated into English. This is implicit from Practice Direction 22A of the Family Procedure Rules 2010, paragraph 8.2 of which states that: Where the affidavit/statement is in a foreign language – (a) the party wishing to rely on it must – (i) have it translated; and (ii) must file the foreign language affidavit/statement with the court; and (b) the translator must sign the translation to certify that it is accurate.(2) There must be clarity about the process by which a statement has been created. In all cases, the statement should contain an explanation of the process by which it has been taken: for example, face-to-face, over the telephone, by Skype or based on a document written in the witness's own language.(3) If a solicitor has been instructed by the litigant, s/he should be fully involved in the process and should not subcontract it to the client.(4) If presented with a statement in English from a witness who cannot read or speak English, the solicitor should question its provenance and not simply use the document as a proof of evidence.(5) The witness should be spoken to wherever possible, using an interpreter, and a draft statement should be prepared in the native language for them to read and sign. If the solicitor is fluent in the foreign language then it is permissible for him/her to act in the role of the interpreter. However, this must be made clear either within the body of the statement or in a separate affidavit.(6) A litigant in person should where possible use a certified interpreter when preparing a witness statement.(7) If the witness cannot read or write in their own native language, the interpreter must carefully read the statement to the witness in his/her own language and set this out in the translator's jurat or affidavit, using the words provided by Annexes 1 or 2 to the Practice Direction.(8) Once the statement has been completed and signed in the native language, it should be translated by a certified translator who should then either sign a jurat confirming the translation or provide a short affidavit confirming that s/he has faithfully translated the statement.(9) If a witness is to give live evidence either in person or by video-link, a copy of the original statement in the witness's own language and the English translation should be provided to them well in advance of the hearing.(10) If a statement has been obtained and prepared abroad in compliance with the relevant country's laws, a certified translation of that statement must be filed together with the original document.’

Events at the Fact-Finding Hearing

[22]Before the Court was able to invite submissions on the apparent non-compliance with Rule 22 and the basic principles identified by Peter Jackson J, the Mother’s counsel told the Court there were several preliminary matters he wished to address the Court on.[23]The Court was told that certain items of police disclosure remained outstanding and the recording of the Father’s police interview was in a format that could not be played. These were relatively trivial issues compared to what the Court was to be told about the Mother’s purported witness statement.[24]The Mother’s counsel told the Court that:a. the Mother’s witness statement was not prepared in Urdu;b. an interpreter has never gone through the document with the Mother;c. the first occasion the Mother was ever sent a version of the purported witness statement that was not in English was in the week preceding the hearing, on 3 September 2025 (even though it was apparently prepared in June 2024);d. the interpreter present at Court considered the version of the document translated from English and he has never seen such a poorly translated document in 30 years of practice;e. the Mother asked her relative to read the English version of the purported witness statement to her and it is replete with errors and does not reflect her case.[25]Given the Mother appeared to abandon the evidence upon which her case had hitherto relied, the Court investigated whether a Fact-Finding Hearing was in fact necessary. The hearing time was utilised to identify what the Mother’s case is. It transpired the Mother’s case alleges more serious harm than was understood, including abduction of the children by the Father and physical and emotional abuse of them by him whilst abducted.[26]The Mother sought the hearing be adjourned so that she could file evidence consistent with her case. The Father opposed the adjournment.[27]Case management decisions must be made giving effect to the overriding objective to resolve the proceedings fairly and justly. Delay in resolving a question concerning a child’s welfare is presumed to be detrimental to them.[28]The failure of the Mother’s solicitors to prepare her written evidence in accordance with Part 22 of the Family Procedure Rules and Peter Jackson J’s basic principles has compromised the fairness of the litigation for the Mother. I accept the Mother herself is not responsible for these failures and she is entitled to expect her professional advisers will comply with the Rules of the Court and be familiar with Peter Jackson J’s basic principles. The effect of this non-compliance is that she does not have written evidence before the Court.[29]If the Court refused to adjourn the hearing, then there is simply no way for the Court to adjudicate allegations which, if proved, would likely have a significant effect on the determination of the welfare issues. On the other hand, if the hearing were to be adjourned there would be further delay to the resolution of the issues. I accept given(a) (A) the Fact-Finding Hearing has previously been adjourned;(b) (B) the Father has no culpability for this litigation failure; and(c) (C) the Father has gone years without seeing his children, that adjourning the hearing is highly prejudicial to the Father’s interests.[30]Weighing these competing considerations, the Court concluded it to be necessary for the hearing to be adjourned as the only means of fairly promoting the interests of justice. The harm to the Father’s and the children’s interests by further delay is outweighed by the greater harm to the children’s interests of the allegations not being adjudicated fairly.[31]Considering the litigation failures on the part of Cartwright King Solicitors, Cartwright King Solicitors were ordered to show cause why the Court should not refuse to allow certain costs charged to the Mother’s legal aid certificate.

Response to the Show Cause

[32]At 7:05pm on 9 September 2025 Cartwright King Solicitors filed the following documents (which were subsequently provided to the Father):a. “Position Statement on behalf of Cartwright King Solicitors”b. A series of client documents in a single file entitled “[Mother’s Name] – Timeline’, including: i. Email dated 21 June 2024 from [Translation Company] to Cartwright King Solicitors; ii. Email dated 21 June 2024 from Cartwright King Solicitors to the Mother including a Microsoft Teams link; iii. Email dated 27 June 2024 from Cartwright King Solicitors to a [Translation Company] employee; iv. File note dated 27 June 2024 of conference between a Cartwright King Solicitors employee, the Mother and a [Translation Company] employee in which it is recorded that the purported witness statement was read to the Mother and ultimately approved by her; v. Email dated 27 June 2024 from a [Translation Company] employee to Cartwright King Solicitors; vi. Letter dated 27 June 2024 from Cartwright King Solicitors to the Mother enclosing the purported witness statement and requesting her signature be put to it; vii. Email dated 1 July 2024 from Cartwright King Solicitors to the Family Court at Sheffield attaching an unsigned copy of the Mother’s purported witness statement; viii. Email dated 3 September 2025 from the Mother to Cartwright King Solicitors stating, “This Urdu I don’t understand because none of it makes sense it’s all mixed up.” ix. A chain of emails between Cartwright King Solicitors to [Translation Company] commencing 1 September 2025 requesting a translation of the purported witness statement from English to Urdu with a later email dated 4 September 2025 which reads inter alia, “I have been informed by our client that she cannot read this statement as it is not Urdu. She has consulted with another Urdu speaker who also cannot read the document.”c. A file entitled “[Mother’s First Name] 1” containing a document titled ‘Summary of Background’ and part of a Scott Schedule, which have manuscript changes to them, which I understand Cartwright King Solicitors say were made on the client’s instructions.[33]The Father brought to the Court’s attention that Cartwright King Solicitors had disclosed the Mother’s email address to him, which he had hitherto been unaware of. He volunteered that he would delete the information so that he did not retain the email address.[34]Within its position statement Cartwright King Solicitors “acknowledge the Court’s concerns regarding the preparation of the mother’s witness statement, specifically the issues surrounding its translation, signature and timing of its submission.” Cartwright King Solicitors expressed deep regret for the inconvenience it had caused. Cartwright King Solicitors submitted that a witness statement was prepared in English on the Mother’s instructions (it was not clear what language those instructions were provided in or translated from). At a remote meeting on 27 June 2024 the English witness statement was “read out to [the Mother] multiple times”, amendments were made to it and the Mother approved it.[35]Cartwright King Solicitors acknowledged the Mother never approved the purported witness statement by signing and returning it. Cartwright King Solicitors accepted that, notwithstanding the document had not been signed, it was filed. Cartwright King Solicitors described the omission of a signature under a statement of truth as “an unfortunate technicality”.[36]Cartwright King Solicitors submitted that it did not “fully comply with all aspects of Practice Direction 22A …”. Ms Chadarana accepted that none of Peter Jackson J’s basic principles had been followed. Ms Chadarana apologised for the firm’s conduct.

Applicable Principles

[37]It was common ground that the Court has the power to refuse to allow a firm of solicitors to charge costs to a party’s legal aid certificate.[38]Paragraph 14.1 of PD22A provides:
‘Where – (a) an affidavit; (b) a witness statement; or (c) an exhibit to either an affidavit or a witness statement, does not comply with Part 22 or this practice direction in relation to its form, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.’
[39]Rule 28.2 of the Family Procedure Rules applies (with exceptions) the costs rules in Parts 44, 46 and 47 of the Civil Procedure Rules 1998.[40]Rule 44.11 of the Civil Procedure Rules provides: ‘(1) The court may make an order under this rule where –(a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or(b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper. (2) Where paragraph (1) applies, the court may – (a) disallow all or part of the costs which are being assessed; or (b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur.[41]Paragraphs11.1 and11.2 of Practice Direction 44 – General Rules About Costs provide:
‘11.1 Before making an order under rule 44.11, the court must give the party or legal representative in question a reasonable opportunity to make written submissions or, if the legal representative so desires, to attend a hearing. 11.2 Conduct which is unreasonable or improper includes steps which are calculated to prevent or inhibit the court from furthering the overriding objective.’
[42]The hearing of the Show Cause was listed at short notice and the order for Cartwright King Solicitors to do so was made without notice to Cartwright King Solicitors. The Court’s order afforded Cartwright King Solicitors permission to apply to vary the Cout’s order for the timing of the Show Cause. Cartwright King Solicitors did not so apply.

Determination

[43]Cartwright King Solicitors realistically concedes certain costs should not be allowed and consents to such an order. The only inference from this concession is that the firm’s conduct was unreasonable.[44]I find the conduct of Cartwright King Solicitors taken cumulatively fell so far below the standard of acceptable conduct that that the conduct was unreasonable. Specifically, Cartwright King Solicitors:a. Failed to comply with any of Peter Jackson J’s basic principles in the preparation of the document purporting to be the Mother’s witness statement;b. Failed to comply with Rule 22 of the Family Procedure Rules in that: i. The document was unsigned; and ii. The document was not accompanied by the statement of truth.c. Filed an unsigned witness statement without having permission pursuant to 14.2 of PD22A to do so and knowing the client had failed to sign it as a document of truth;d. Did not provide the Mother with a non-English version of the document purporting to be her witness statement until days preceding this hearing, some 14 months after it was first prepared; ande. Did not alert the Court to any of these matters itself.[45]The consequences of this conduct were unfairness to the Mother and the necessity of the case being adjourned, thus causing considerable prejudice to the Father and waste of Court’s finite resources.[46]Cartwright King Solicitors consents to an order that the following costs are not allowed: Item Legal Aid Cost Preparation of witness statement £192.15 Preparation of position statement £109.80 Preparation for hearing £54.90 Preparation of Scott schedule £54.90 Preparation of bundle £54.90 Preparation of counsel’s brief £54.90 Sub-total £521.55 Total (including VAT) £625.86[47]It must be observed that costs that the Court will refuse to allow are modest in the context of the prejudice done to the Father and the waste of Court’s resources.[48]I will make case management orders adjourning the hearing and preparing the case for that future hearing, as well as order by consent that £625.86 in costs charged to the Mother’s legal aid certificate by Cartwright King Solicitors are not allowed.[49]That is the judgment of the Court.