Public law children cases: incomplete evidence before the judge, costs following appeals
In their latest update on recent public law children cases, Sarah Blackmore and Jacqueline Thomas examine an appeal over an order by a judge given incomplete evidence, and who pays costs following a successful appeal by a foster carer.
R (Children) [2018] EWCA Civ 3050
The guardian appealed a care order made on 29 May 2018 to place two children, aged 12 (C) and 10 (M) into foster care. At the hearing the local authority, supported by the guardian proposed that the children should live with their current carer (R), under a special guardianship and supervision order. C had been living with R since April 2016 and M since April 2017. The guardian’s grounds of appeal were summarised as follows:
- The judge failed to carry out the requiring balancing exercise. In particular, the judge failed to analyse the consequence for the children of moving to long-term foster care including the fact they were desperate to remain in the care of R;
- The judge wrongly placed considerable weight on matters which were not addressed during the course of the oral evidence with the result that R was unable to deal with them in her evidence;
- The judgment does not explain why the judge appeared to consider a care order, under which the children would live with R, would be consistent with their welfare needs but a special guardianship order with the same effect would not.
In the judgment LJ Moylan acknowledged the pressures on the family justice system including on judges. He stated that the judge that made the order was faced with a difficult situation due to missing evidence. LJ Moylan formed the view that due to the state of the evidence being incomplete the appeal should be allowed on that basis alone. He also held that the judge failed to sufficiently analyse the benefits and disadvantages of each of the options available to the court or to compare their respective benefits and disadvantages.
The appeal was successful on grounds (i) and (ii) and sent back for a rehearing.
RP (Appeal costs) [2019] EWCA Civ 680 (16 April 2019)
In January 2019 the Court allowed an appeal by a foster carer against a care order made in respect of a girl (R), who had been in her care for 14 months. Following the successful appeal, the appellant applied for an order that her costs be paid by the local authority and Cafcass.
The Court of Appeal confirmed the approach to be followed when considering applications for costs in cases involving children are governed by the principles from Re T [2012] UKSC 36 and Re S [2015] UKSC 20. It follows from those cases that a costs order should only be made in unusual circumstances, as recognised by Baroness Hale this is because whenever a court determines a question relating to the upbringing of a child, “there are no adult winners and losers – the only winner should be the child”. An example of an unusual circumstance would be where the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable (Sutton London Borough Council v David (No 2) [1994]).
The conduct of the local authority and the guardian fell short of the standard expected in care proceedings. However, the Court of Appeal concluded no order for costs should be made because the conduct did not fall into the category of behaviour identified in the Sutton case.
Sarah Blackmore and Jacqueline Thomas are joint head of chambers at Spire Barristers. Jacqueline can be reached by This email address is being protected from spambots. You need JavaScript enabled to view it., while Sarah can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..
