The argument about who should bear the costs of translating documents in care proceedings is a relatively common one. I’ve learned over the last few years in the South West and London that different areas have different approaches – in some, the local authority is expected to meet all the costs of translating documents, and in others the cost is met by that party’s legal aid certificate.
Whilst the case of Re: L (A Child) (Procedure: Bundles: Translation)  EWHC 15 attracted much attention (and was a feature of one of my previous blog posts), what many overlooked was the guidance given by the President in relation to the procedures that should be adopted in respect of documents where there is a non-English speaking party. This was, in fact, the original reason that those proceedings were referred to the President, the Legal Aid Agency having refused to meet the full costs of translating court documents. The principles set out in Re L were referred to in the more recent case of Suffolk County Council v (1) Mother (2) Father (3) A Child when a dispute arose between the parties as to who should meet the costs of translating documents, or if the costs should be shared.
These two cases provide the following guidance:
- Not all documents need to be translated. It is for the non-English speaking party’s solicitor to extract or summarise what their client needs to know in order to understand the case against them and to give instructions;
- In determining what should be extracted or summarised, it is what information is “necessary”, with “necessary” to be defined in Re: H-L (A Child) (Care Proceedings: Expert Evidence)  EWCA Civ 655;
- Judges must be astute to ensure that what they say is necessary to be translate really is necessary;
- It is right that the local authority should provide and bear the costs of translated documents pre-proceedings and at the point of proceedings being issued. This is because of the urgency of the situation and the fact that at this time, non-English speaking parties will not necessarily have a full public funding certificate in order for the costs of translations to be met;
After proceedings were issued, solicitors instructed and a public funding certificate in place, the costs of translating extracts or summaries should be met by the party who requires the documents to be translated; this is not the local authority once proceedings have been issued.