The Court of Appeal has ordered a local authority to make a contribution of £12,000 towards the costs of a great-aunt who won an appeal from care and placement orders made by a judge at the conclusion of proceedings concerning a two-year-old boy, J.
The Court had set aside the orders in November 2019. Lady Justice King said in that ruling it was not possible from the reasons as articulated by Her Honour Judge Bush for the court to be satisfied that the making of a placement order would be a proportionate outcome for J.
The matter was remitted to Mr Justice Keehan who ordered, on 12 November 2019, that J be placed with the appellant great-aunt forthwith under a transitional plan.
In W (A Child), Re  EWCA Civ 77 the Court of Appeal has now ordered that “in the unusual circumstances of the case” the local authority should be required to make a costs contribution.
Lady Justice King noted that the correct approach to applications for costs involving children had been considered on two occasions by the Supreme Court: firstly, in Re T (children)  UKSC 36; and subsequently in relation to appeals in Re S  UKSC 20.
Turning to the current proceedings, she said that the Court of Appeal had rejected the submission of the local authority that HHJ Bush’s brief judgment had provided "sufficient detail for the parties to understand why the judge had concluded adoption was the only order which would meet his [J’s] needs".
Lady King said: “Whilst ultimately this was a so-called ‘reasons appeal’, the court was critical of the local authority and the Guardian in respect of a number of important issues which necessarily impacted upon the judge's approach.
“This court concluded that the local authority, notwithstanding their duty to put an even-handed case before the judge, had provided the judge with an ‘uneven picture’.”
Counsel for the appellant submitted that it was a fundamental part of the rule of law that the state discharged its duty fairly and that the requirement to be "even-handed" and transparent when seeking permanently to sever a child's ties with his birth family was a concept, he submitted, which could not be more overwhelming or important.
It was further submitted that the local authority, having read the judge's judgment and seeing that it contained significant errors of fact (for example, the judge's erroneous belief that the great-aunt had been unable to provide good enough practical parenting), should, once permission to appeal had been granted, have led to the local authority taking stock with a view to conceding that the appeal should be allowed.
“Finally, this was a case, as was identified by Baroness Hale, where J will be in a family placement. It was accepted that the great-aunt had spent substantial sums of her own money in renovating her home, in order to satisfy the local authority, that it provided a safe and appropriate environment for J,” the Court of Appeal judge said.
“This she did in good faith at a time when no one could have known whether or not ultimately J would be placed with her. Whilst the court has not, and would not, seek financial disclosure from the great-aunt, it is inevitable that the costs of this appeal will have had a significant financial impact upon her in addition to the sums already spent on her property.”
Lady Justice King said the local authority understandably emphasised the strain on local authority resources and submitted that they had had no proper opportunity to take stock. In support of this submission, the council gave details of delays in providing bundles, late filing of skeleton arguments and other procedural mishaps on the part of the appellant.
“Whilst sympathising with the frustration of the local authority in such circumstances, in my judgment the basis of the appeal and the deficiencies in the judgment were, at all times, completely apparent,” the Court of Appeal judge said.
She added that she had in mind both Re T and Re S and had reminded herself of LR v (1) a local authority (2) a mother (3) a father (4) RP (by her children's guardian)  EWCA Civ 680, in which the Court of Appeal declined to make an order for costs notwithstanding that the "conduct of the local authority and Guardian fell short of the standard expected in care proceedings".
Lady King said: “Each case must, however, turn on its facts. In my judgment, in this case there was a failure to be even-handed on the part of the local authority in their presentation of the case to the judge at first instance and thereafter a failure to recognise (save to a very limited extent) that the judgment as drafted could not justify the order that was made.
“In those circumstances and in the unusual circumstances of this case, I would order the local authority to make a contribution towards the costs of the appellant.”