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Local authority wins appeal over costs order made in private family law proceedings

A judge allowed an “impermissible device” designed to provide a public source of funding for the parties' legal costs in private family law proceedings, the Family Court has ruled.

In Peterborough City Council v K, L, M, N and P & Ors [2022] EWFC 61 Mr Justice Poole overturned a costs order made against Peterborough City Council by HHJ Tolson QC in an appeal by the council against a third party costs order made in ongoing private law proceedings brought by applicants K and L, to which the respondent mother (M), and respondent fathers (N and P) of the four children concerned were parties.

HHJ Tolson ordered Peterborough to pay the assessed costs of the applicants to date and their prospective costs when assessed at the conclusion of the private law proceedings.

The case concerned the mother, her adult daughter and her partner - identified as K and L - the mother's four other children A, B, C, and D, who were aged between 6 and 14 when the private law proceedings were issued plus the two fathers. All are covered by anonymity.

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The four children were living with the mother until the eldest child, A, voluntarily moved in with K and L who alerted Peterborough to concerns that M, was abusing alcohol and neglecting the children. Peterborough soon after decided to treat the children as being in need.

Shortly after there was a violent altercation at the mother's home and the three youngest children also left her care.

In July 2021, Peterborough sent a Public Law Outline letter to the children's parents and the following month the first court hearing of the private law application for a child arrangements order was held before HHJ Tolson.

Poole J said: “It is pertinent to note that when the decision under appeal was made, the court had received no evidence from witnesses in the proceedings other than a short statement from a social worker, had heard not evidence, and had made no findings.

“The private law proceedings were far from concluded and it was not known how protracted they would be, whether expert evidence would be required, or how many further hearings would be needed.”

Peterborough argued that HHJ Tolson had failed to consider any evidence in relation to a factual dispute as to the circumstances of the children becoming cared for by the applicants, yet took those circumstances into account when assessing the local authority's conduct and had wrongly concluded this justified the costs order in the absence of any evidence that the council had acted improperly, unreasonably or negligently.

The council also argued that he failed to consider why it was just to make the costs order and wrongly used this so as the parties' litigation was funded "through the back door”.

Poole J said: “The judge has a deep experience of private and public family law proceedings and his view that the local authority ought to have issued public law proceedings in this case was one he was clearly entitled to hold.

“However, the local authority was likewise entitled to make its decision and it has not been suggested that it was an unlawful decision. The Family Court is not given the power to direct a local authority to issue public law proceedings.”

He said Peterborough had followed correct procedures and so “it seems to me, the failure of the local authority to issue public law proceedings could not properly be regarded, in itself, as reprehensible behaviour or unreasonable conduct within the proceedings, and could not, without more, constitute exceptional circumstances justifying the making of a non-party costs order”.

This was not a case in which the local authority was found to have acted in bad faith, or to have misled the parties or the court, he added.

Poole J said the applicants had incurred legal expenses having taken apparently vulnerable children into their care and provided a safe and supportive home for them.

“Nevertheless, Parliament decides what funding should be available at public expenses for advice and representation in private law proceedings,” he said.

"The fact that the applicants may be commended for their conduct does not entitle them to such funding.”

The judge concluded that HHJ Tolson applied the wrong legal test, proceeded on a factual basis that he was not entitled to assume, disregarded relevant circumstances and exceeded the permissible parameters of his discretion.

“The non-party costs order was an impermissible device designed to provide a public source of funding for the parties' legal costs in private family law proceedings,” Poole J concluded. “For those reasons I allow the appeal and set aside the non-party costs order in its entirety.”

Mark Smulian

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