Re S: care cases and costs in the appellate court

March 25, 2015

The Supreme Court has recently examined the principles and law in relation to costs in the appellate court in cases concerning children. Kate Makepeace Grieve analyses the ruling.

‘Whenever a court has to determine a question relating to the upbringing of a child, the welfare of the child is the court’s paramount consideration: Children Act 1989, section 1(1)…in such proceedings there are no adult winners and losers – the only winner should be the child.’

The appeal in Re S (a Child) [2015] UKSC 20 concerned with the "proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children". It was heard in the Supreme Court on 28 January 2015 before Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Hughes, and Lord Toulson. The appeal arose in relation to a privately funded parent’s successful appeal to the Court of Appeal against care and placement orders made in a county court but the issue has a wider context of appeals in children’s cases.

Background

At first instance the father conceded threshold had been met for the making of final orders but as he had only limited contact with his daughter, A, and the rest of the family since separating from the mother he was not implicated in her neglect of the children at the time of issue. Father had moved to Norway and maintained contact with A from there but was negatively assessed as a carer for his daughter. Late in proceedings he asserted his circumstances had changed and sought further assessment which was refused. Final care and placement orders were made in July 2013.

The Court of Appeal held that the judge had been “wrong to make the order without further assessment of the situation of the father and child and in any event did not adequately articulate her reasons to proceed to make a placement order in the circumstances of this case”. Father has since been positively assessed and A has been successfully placed with her father in Norway.

It was not suggested that the local authority had behaved reprehensibly in relation to the child or unreasonably in the stance taken at first but the authority and the Guardian had resisted the appeal.

Parents of children subject to care proceedings are entitled to representation paid by the Legal Aid Agency (‘LAA”) on a ‘non-means non-merits’ basis. Those same parents are subject to both merit and means testing should they bring an appeal against a decision at first instance.

Father had costs of nearly £14K as he was not eligible for LAA funding. The Court of Appeal awarded the father his costs as against the local authority.

The Appeal

The local authority brought this appeal on the basis that, no matter the outcome, it would not seek to recoup the costs it had paid to the father in accordance with the order. The court was invited to consider the principle of awarding costs in appeal cases concerning children.

Costs at first instance are governed by the Family Procedure Rules 2010, Part 28. Costs on appeal are governed by the Civil Procedure Rules, Part 44.

Under section 51 of the Senior Courts Act 1981, costs in the civil division of the Court of Appeal and in the family court are “in the discretion of the court” but subject to the rules of court. Under the Civil Procedure Rules, the “general rule” in civil proceedings is that the “unsuccessful party will be ordered to pay the costs of the successful party” (CPR, rule 44.2(2)(a)). However, this general rule does not apply to first instance proceedings about children (FPR rule 28.2(1) disapplies CPR rule 44.2(2)). The general rule does not apply to proceedings in the Court of Appeal in connection with proceedings in the Family Division of the High Court or from a judgment, direction, decision or order in any court in family proceedings (CPR, rule 44.2(3)).

However, CPR 44.2(4) and (5) do apply to children’s proceedings both at first instance and on appeal. In re T It was held that "rule 44.2(4)(c) readily [not] fit the conduct of children’s cases, save as an aspect of the general desirability of the parties co-operating and negotiating to reach an agreed solution which will best serve the paramount consideration of the welfare of the child. As such, it is part of the general conduct of the proceedings, some aspects of which are listed in rule 44.2(5)".

Re T (Care Proceedings: Costs) [2012] UKSC 36, [2012] 1 WLR 2281 was considered by the court. In that case, Lord Phillips, at para 44, had held that “the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice...”

In order to decide whether there were material distinctions between this case and Re T, the Supreme Court considered it necessary to examine the issue of costs in children’s cases from first principles.

It was considered that:

it can generally be taken for granted that each of the persons appearing before the court has a role to play in helping the court to achieve the best outcome for the child;
no-one should be deterred by the risk of having to pay the other side’s costs from playing their part in helping the court achieve the right solution;
all parties to the case are motivated by concern for the child’s welfare;
parents who dispute with one another or with the local authority over their children’s future do generally love their children dearly and want the best for them as they see it;
local authorities have statutory duties to investigate and take action to protect children if there is reasonable cause to suspect them to be suffering or likely to suffer significant harm;
no parent should not be deterred from challenging decisions “which impact upon the most crucial of human relationships”

Usual practice and case law added in to these principles. Wilson J was cited from Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317. At 1319 he said,

"Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the welfare of the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them, The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority are a party. Thus, even when a local authority’s application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties"

Gojkovic v Gojkovic (No 2) [1992] Fam 40, at 57B, was also considered. It was noted that "the Court of Appeal observed that it was unusual to make an order for costs in children’s cases".

Keller v Keller and Legal Aid Board [1995] 1 FLR 259 was also considered particularly 267-268, per Neill LJ, “…it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to the costs of the proceedings except in exceptional circumstances… [but that it is] unnecessary and undesirable to try to limit or place into rigid categories the cases which a court might regard as suitable for such an award”.

Also accepted by the court was that: "orders for costs against local authorities would reduce the funds available"; a parent "having to pay the other side’s costs, or even having to bear one’s own costs, will reduce the resources available to look after this child or other children"; and "if local authorities are faced with having to pay the parents’ costs as well as their own, there will be less in their budgets for looking after the children in their care, providing services for children in need, and protecting other children who are or may be at risk of harm".

It was held that "automatic availability of non-means-tested and non-merits tested public funding for parents at first instance in care proceedings has masked the issue. It has only surfaced on appeal, as here, or for interveners, where public funding is means-tested. But the question of whether it is just to make an order for costs should as a matter of principle be determined irrespective of whether any of the parties are publicly funded". Otherwise parents, "automatically publicly funded, who successfully resist care proceedings would also get their costs. It might even be said that successful local authorities should get their costs against the parents (or interveners) irrespective of public funding".

Lady Hale held that "All the reasons which make it inappropriate as a general rule to make costs orders in children’s cases apply with equal force in care proceedings between parents and local authorities as they do in private law proceedings between parents or other family members. They lead to the conclusion that costs orders should only be made in unusual circumstances".

"As a general proposition, I would accept the argument that parents are always entitled to resist the claim of the state to remove their children from them. They will usually be reasonable in doing so. They should not have to pay the local authority’s costs if they lose. But it does not follow from that that if the local authority lose, they are unreasonable in seeking to protect the child: that will all depend upon the particular circumstances of the case."

The appeal was allowed.

Kate Makepeace Grieve is a barrister at 36 Bedford Row. She was Junior Counsel for the local authority in the Supreme Court, led by Will Tyler QC and Hannah Markham.