Local authority wins Supreme Court appeal over costs order in care case

The Supreme Court has unanimously allowed an appeal by a local authority over the Court of Appeal’s award of costs to a father involved in care proceedings.

In the case of In the matter of S (a Child) UKSC 2014/0101 the father of a young girl had successfully appealed against a placement order obtained by a council for her adoption without his consent.

Even though the local authority was not considered to have engaged in reprehensible behaviour or taken an unreasonable stance in the hearing at first instance, the Court of Appeal ordered the council to pay the father’s appeal costs of £13,787.

The issue in In the matter of S (A Child) was whether the Court of Appeal was right to do so, given the principle confirmed by the Supreme Court in Re T (Care Proceedings: costs) [2012] UKSC 36 that in general local authorities should not be ordered to pay costs in care proceedings.

The council concerned appealed on the basis that whatever the outcome, it would not seek to recover the costs awarded and paid to the father.

The Supreme Court unanimously upheld the appeal by the local authority and set aside the costs order made in the Court of Appeal.

Deputy President Lady Hale, who gave the judgment of the court, said she accepted the argument that parents were 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, she added, it did not follow from that that if the local authority lost, they were unreasonable in seeking to protect the child: “that will all depend upon the particular circumstances of the case”.

Lady Hale noted the differences between trials and appeals (Re T related to interveners’ costs at a first instance hearing), and that conduct which was reasonable at first instance might no longer be reasonable on appeal.

However, she said, that did not alter the principles to be applied – it merely altered the application of those principles to the circumstances of the case.

Lady Hale said the Supreme Court’s judgement in Re T did not rule out the possibility of other circumstances in which an award of costs in care proceedings might be appropriate, provided that a local authority was not put into a worse position than private parties. Nor should it be put in a better position, she said.

According to the Deputy President, the object of the exercise was to achieve the best outcome for the child and there might be cases where the welfare of the child would be put at risk if a costs order was not made.

Lady Hale said it had not been suggested that the local authority had behaved in any way reprehensibly towards the girl or her father in this case.

The judge said there was the “faint suggestion” that the council behaved unreasonably in relation to the appeal, by resisting it despite the deficiencies in the first instance judgment. However, Lady Hale said she considered any such suggestion “unwarranted”.

“The crux of the matter is that [the Court of Appeal] considered that there should have been an assessment of the father’s ability to care for his daughter in Norway,” the judge said. “It is not difficult to understand why: there were several positives in his favour and the evidence of [the girl]’s particular needs was contentious.

“But neither is it difficult to understand why the local authority maintained their stance, supported as it was by the children’s guardian as well as the independent social worker and the psychotherapist, that [the girl] should be placed for adoption.”

Lady Hale said the Court of Appeal would have been surprised had the local authority failed to respond to the appeal (and risked the criticism incurred by the local authority which failed to respond to application for permission to appeal in In re S (Children) Care Proceedings: fact-Finding Hearing) [2014] EWCA Civ 638, [2014] 3 FCR ).

“In the circumstances, it was also in my view reasonable of them to have maintained the stance that they had taken at first instance,” she said.

Allowing the appeal, Lady Hale concluded: “None of the exceptions to the general approach applicable to awards of costs in children’s cases applies in this case.”

See also: Re S: care cases and costs in the appellate court by Kate Makepeace Grieve of 36 Bedford Row, junior counsel for the local authority in this case