Local authorities should not have to cover legal aid funding deficiencies, the Court of Appeal has said, while upholding a mother's challenge against a placement order. A placement order allows the local authority to place a child with suitable adopters following care proceedings, even if the parents do not agree.
In M (A Child) the court was asked to consider whether a family court judge fell into error last year by failing adequately to make findings on the risk of future harm in the event that the child, who is now five, is returned to her mother's care. Also at issue was whether the judge gave a sufficiently clear and reasoned analysis of the factors leading him to conclude that permanently separating the child from her mother would be in the child's interests.
The judgment, published this week, states that in October 2014 and May 2015, the mother, a trained nurse, took her daughter to hospital after administering an epi-pen, believing that the child was suffering an allergic reaction. Medical opinion was that the epi-pen was administered unnecessarily on both occasions. The mother was arrested in June 2015 on suspicion of fraud and neglect. The child has been in foster care since. The judgment says no charges were pursued, and experts concluded that the case was one of the actions of an overanxious mother.
In June last year, the family court dismissed the mother's application to discharge a care order made in March 2016, and made a placement order pursuant to section 21 of the Children Act 1989.
Lady Justice King, giving the Court of Appeal's lead judgment, allowed the mother's appeal and remitted the matter to be reheard.
The mother applied for her appeal costs - approaching £20,000 in view of counsel's fees - to be paid by the local authority. The mother argued that her appeal had succeeded and that she and her husband could 'ill afford expenditure on this scale'. The local authority argued that it was not unreasonable to defend the appeal 'and that it too has many calls on its stretched resources'.
Deciding not to make a costs order, King said: 'I have considerable sympathy with the position of MR, who is not eligible for legal aid and who has incurred such substantial costs in seeking to have her child returned to her. However, it is not possible to say that the local authority has been unreasonable in defending the judge's decision, it being a decision that was in line with all professional advice and was supported by the children's guardian.
'Unfortunately, as was said in Re T by Lord Phillips, justice cannot demand that any deficiency in legal aid funding should be made up out of the funds of the local authority.'
King considered postponing a decision until after the rehearing. 'Had there been a clear case of documented financial hardship and factors that suggested unreasonableness on the part of the local authority, a postponement of that decision might be justified. But in my judgement, neither of these indicators is strong enough to justify that unusual course,' she said.
Lord Justice Peter Jackson and Lord Justice McCombe agreed.