Lost in translation: securing interpreters in family proceedings

A growing concern of mine has emerged in relation to court appointed interpreters. Although they are booked by the court well in advance of the hearing at which they are required to attend, it is very rare for the actual booking to be assigned more than two weeks in advance of the hearing itself. Furthermore, some court interpreters will only advise the court the day before the hearing for which they are booked if it subsequently transpires that the interpreter(s) required cannot be sourced for that hearing, which presents difficulties in exploring other options.

If an interpreter is not sourced and the court is only notified the day before the hearing, this gives very little chance for the court, or indeed the parties, to rectify the situation leading to an inevitable adjournment of a hearing booked many months in advance. The solution? Non-party costs orders against the organisation concerned (see In the matter of Capita Translation and Interpreting Limited [2015] EWFC 5) (satellite litigation generating yet more resources and not much comfort as a solution) or for the parties to arrange and fund where possible the interpreters themselves (my favoured solution).

My justification for this is that court-appointed interpreters are only supposed to be used for interpretation in court, not in the precincts. Thus interpreters for hearings in children and domestic violence cases are provided by HMCTS. Matters outside the court e.g. taking instructions and providing advice, provided it is reasonable, can be covered under the terms of the funding certificate. Para 6.29 of the Legal Aid Agency’s Guidance on the Remuneration of Expert Witnesses states as follows: “Where a client is eligible for legal aid and requires an interpreter then their solicitor will secure an interpreter on their behalf. The interpreter will be available at the court to translate what the solicitor and client say to each other. This will usually involve discussions outside of the court room. It may be appropriate for the legally aided interpreter to be in court during the hearing, e.g. a solicitor may want to give instructions to their client in court or to discuss issues that have been raised in court at any point during the hearing.

Attendance and waiting at a hearing can be claimed at the codified rate for interpreters.” A solution to the problem would be for the parties in future to appoint interpreters themselves to enable them to operate both inside and outside of court. From a practitioner’s point of view, under paragraphs 2.47 - 2.51 of the 2018 Contract, providers must instruct interpreters who are suitably qualified.

A non-qualified interpreter may only be used in exceptional circumstances. Those circumstances include, but are not limited, to the following:

(a) where it would cause undue delay and/or increased costs (above the prescribed rates);

(b) where the client requests an interpreter of a specific gender and such request cannot reasonably be accommodated otherwise than by the use of a non-qualified interpreter (e.g. where the client has been a victim of domestic violence);

(c) where there is a rare language or dialect which cannot reasonably be accommodated otherwise than by the use of a nonqualified interpreter;

(d) where there is an emergency requirement which cannot reasonably be accommodated otherwise than by the use of a nonqualified interpreter; and

(e) where you have contacted three interpreters who meet the qualification requirements specified in paragraph 2.48 above and none are willing or available as required.

Where a non-qualified interpreter has been instructed, in accordance with paragraph 2.51, providers must prepare a file note setting out the exceptional circumstances which exist and a clear explanation as to why it was necessary and appropriate in the circumstances for an alternative non-qualified interpreter to be selected. Failure to comply with this requirement will almost certainly lead to the disallowance of the fee otherwise recoverable from the Legal Aid Agency.