The Family Proceedings Fees Order 2008 comes into force on Thursday. This seemingly innocuous-sounding piece of delegated legislation contains a provision that has caused local authorities and children's charities to be extremely worried.

The Order is part of the implementation of the Government's policy to make litigants pay the real cost of the court time and resources they use in their cases. This is controversial in itself and has many critics, including the Civil Justice Council, which has said in the past that “constant increases in court fees seriously threaten access to justice for those on low or modest incomes”.

But the Order now takes things to a new level in the area of care orders in children's cases. From May 1 any local authority deciding to apply for a care order because a child in its area is at risk will have to pay more than £2,000 to commence a case and another £2,000 if the case goes to a full hearing.

The Government issued a consultation paper in December with a closing date in March this year on the changes. But that consultation paper stated that full-cost pricing was the policy and consultation was about implementation.

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There have also been allegations that the consultation has been an empty shell: the Order was laid before Parliament two weeks ago, on the very day that the Government said that it was to go ahead with the proposals, and before the consultation responses have been published.

How can local authorities afford the cost increases? What has happened is that the court service has transferred some £40 million from its budget to that of local authorities to enable them to pay. The Government says that this should allay any concerns. But the money is not ring-fenced in any way, and some councils say that they have not received enough.

Surely there will be incentives for cash-strapped councils to take risks in some cases and not to take care proceedings? Alternatively, some councils could decide to support family members to bring proceedings instead (where court fees will be much less).

The NSPCC's response to the consultation said that it was “totally unacceptable” that some decisions about child protection could be finance led. It feels that the new law could put the Government in breach of its duties under the UN Convention on the Rights of the Child to ensure access to justice for children.

It seems bizarre that the rights of the most vulnerable children should be put in any sort of jeopardy for the sake of moving money between one public budget and another. Of course, local authorities should not cut corners when it comes to this area of law. But how long will it be until we hear examples of some councils doing just that?

Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers. E-mail: s.cragg@doughtystreet.co.uk

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