Re S (Children) (Care proceedings: Proper evidence for placement order): Supreme Court: 25 March 2015

Costs – Care proceedings – Father successfully appealing against placement order in respect of daughter – Court of Appeal, Civil Division, ordering respondent local authority pay father’s costs of appeal

The father successfully appealed against a placement order made in the county court in respect of his daughter, A. The Court of Appeal, Civil Division, held that the judge had been wrong to make the order without further assessment of the situation of the father and A and, in any event, had not adequately articulated her reasons to proceed to make a placement order in the circumstances of the case.

The local authority was ordered to pay the father’s costs of the appeal assessed in the sum of £13,787.70. The father had funded it privately, the non-means-tested legal aid which was available to all parents in care proceedings not being available on appeal. The authority appealed against the costs order. The authority made it clear that whatever the outcome, they would not seek to recover the costs awarded and paid to the father.

Consideration was given to Re T (Children) ([2012] 4 All ER 1137), in which it was held that the general practice of not awarding costs in children’s cases against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, was one that accorded with the ends of justice. The issues were: (i) whether there were any other circumstances, beyond the two identified in Re T, namely reprehensible behaviour or an unreasonable stance, in which a costs order might be justified; and (ii) whether there was any reason to depart from the general approach in Re T in the present case.

The appeal would be allowed.

(1) The object of the exercise in children’s proceedings was to achieve the best outcome for the child. If the best outcome for the child was to be brought up by her own family, there might be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In those circumstances, just as it might be reasonable to order a richer parent who had behaved reasonably in the litigation to pay the costs of the poorer parent with whom the child was to live, it might also be appropriate to order the authority to pay the costs of the parent with whom the child was to live, if otherwise the child’s welfare would be put at risk (see [33] of the judgment).

T (Children), Re [2012] 4 All ER 1137 considered.

(2) Parents were always entitled to resist the claim of the state to remove their children from them. They would usually be reasonable in doing so. They should not have to pay the local authority’s costs if they lost. However, it did not follow that, if the local authority lost, they were unreasonable in seeking to protect the child: that would all depend upon the particular circumstances of the case.

Further, the fact that the court was dealing with an appeal rather than a trial might be relevant to whether or not a party had behaved reasonably in relation to the litigation and it might well be that conduct which was viewed as reasonable at first instance was no longer reasonable on appeal. That did not alter the principles to be applied, it merely altered the application of those principles to the circumstances of the case (see [28], [29] of the judgment).

None of the exceptions to the general approach applicable to awards of costs in children’s cases applied in the present case. It was not suggested that the authority had behaved in any way reprehensibly towards the parties. Further, any suggestion that the authority had behaved unreasonably in relation to the appeal by resisting it, despite the deficiencies in the first instance judgment, was unwarranted.

In the circumstances, it had been reasonable of them to have maintained the stance that they had taken at first instance. As to the question of whether a refusal to award costs might indirectly create hardship for A, that would have required the Court of Appeal either to reserve the costs of the appeal until the outcome of the assessment had been known and A’s future decided, or to remit the question of the appeal costs to be decided at the future first instance hearing. It had not been suggested that that would have been an appropriate course (see [35]-[37], [39] of the judgment).

The costs order made in the Court of Appeal, Civil Division, would be set aside (see [39] of the judgment).

T (Children), Re [2012] 4 All ER 1137 applied.

William Tyler QC, Hannah Markham and Kate Grieve for the father; Andrew Bainham and Amy Stout for the authority; Lance Ashworth QC, Cyrus Larizadeh and Dorothea Garland for the Access to Justice Foundation, as intervenor.