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In a groundbreaking decision, the president of the Family Division, Sir Andrew McFarlane, has ordered an intervening party to pay a substantial £20,000 in legal costs. The case involves the Association of Clinical Psychologists (ACP), which intervened in an appeal known as ‘The Mother v The Father’ to question the qualifications of the expert at the center of the case. This ruling, made in August and published recently, has sparked a wave of discussion in the legal world.

The court heard that Mr. Justice Peel granted the mother permission to reopen a fact-finding determination made in private law children proceedings. This decision was based solely on the necessity of examining the practice of instructing unregulated experts. Subsequently, the ACP was given permission to intervene in the appeal proceedings.

The ACP argued that any costs order could have a ‘chilling effect’ on other organizations coming forward in future cases. However, it was brought to light that the ACP was unable to substantiate the claim that the expert was unqualified. Instead of acknowledging this, the ACP mounted a ‘direct and detailed critique’ of the expert during the appeal hearing’s second day.

Sir Andrew McFarlane, in his judgment, emphasized that when a non-party intervenes due to special interests or knowledge, it has a responsibility to assist the court on the issues at hand. Acting beyond the scope of permitted intervention or unreasonably could put the intervenor at risk of an adverse costs order.

The court acknowledged that there was no suggestion of a cost application against the ACP before the judgment on the appeal. McFarlane took into consideration the ACP’s lack of warning and its limited financial resources, ultimately directing the organization to pay £10,000 each to the father and the expert.

This case highlights the delicate balance between the rights of intervenors and the responsibility they bear when participating in legal proceedings. It also underlines the importance of adhering to court directions and the potential consequences for failing to do so.

The legal community is abuzz with discussions surrounding this unprecedented decision, which could set a precedent for future cases involving intervenors. The ruling raises important questions about the role and obligations of third parties in legal proceedings and the potential consequences for those who overstep their bounds.

As the legal world grapples with the implications of this landmark judgment, it serves as a cautionary tale and a point of reference for lawyers, law students, and practitioners in the field of family law.

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