New High Court decision ordering the LA to pay 50% of the aunt’s costs in care proceedings. Beware, or be happy (depending on whether you’re representing a Local Authority, or a relative putting themselves forward as a carer)
The case was decided by Justice Peter Jackson, who I have had the fortune of observing in a very difficult case and have a very high regard for.
The very bald facts are that the child’s parents were deemed to present a very high level of risk. An aunt came forward to care for the child. The LA and Guardian considered that it would be too dangerous for the child, because of the risks from the parents, to live with any family member (and thus that whatever positive qualities the aunt may have had as a carer were outweighed by that) . The Court felt otherwise and an arrangement was struck whereby the Court effectively sanctioned the placement (in line with Mr Justice Munby – as he then was, decision in Cardiff) under an Interim Care Order.
The aunt was represented, but being ineligible for public funding, her representatives did the work pro-bono. Their costs amounted to just under £23,000. There was to be a five day trial, but it concluded much quicker than that, and the Judge recognised the valuable role in that that had been played by the aunt being represented, rather than a litigant in person. The LA had offered an ex gratia payment of £2,000 to the aunt to assist with her costs.
This hearing was then to deal with the issue of whether the Court should make a costs order against the LA, as the aunt had effectively secured what she wanted at the hearing and her solicitors had not been recompensed.
The LA manfully attempted to resist this, on the basis that the authorities are fairly plain that making costs orders in family cases is exceptional rather than the norm that it would be in say a civil case, and that making a cost order should essentially be reserved for the ‘wasted costs’ scenario, where the costs have been incurred as a result of bungling, ineptitude or bad faith of some kind. Had the aunt been funded through the LSC, there would have been no question of the Court making an order for costs against the LA, and this was arising purely as a result of the State (in the form of the LSC) having a cut-off point above which the aunt fell.
Essentially, that there are two situations in which the Court can make costs orders in family cases :-
- It is unusual to order costs in children cases. This proposition was stated by Butler-Sloss LJ in Gojkovic v Gojkovic (No 2)  Fam 40 at p 57C, and by Wilson J in Sutton London Borough Council v Davis  2 FLR 569. In fact, the proposition applied in neither case, the first being a financial case and the second concerning the registration of a child-minder, but the unusual nature of costs orders is well-known to those practising in public or private law children proceedings.
- “The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party. Thus, even when a local authority’s application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties.” (Sutton). Wilson J is there referring to the corrosive effect of an order for costs as between family members in private law proceedings, a consideration that does not apply in care proceedings.
- There are established exceptions to the general proposition. The first, as stated in Sutton is that “the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable.” A recent example of an order being made against a local authority that had failed in its duty of disclosure is Kent County Council v A Mother, F and X, Y and Z (IR Intervener) (Costs in Care Proceedings)  EWHC 1267 (Fam)  2 FLR 1088 (Fam), a decision in which Baker J emphasised the exceptional nature of such orders.
- The second exception is where the costs are referable to a distinct issue that has been decided in favour of one party, such as at a fact-finding hearing. Instances are Re J (Costs of Fact-Finding Hearing)  EWCA Civ 1350,  1 FLR 1893 and Kent County Council v A Mother (above).
- A further instance of this kind is Re T (A child)  EWCA Civ 1585. Grandparents who did not qualify for public funding applied for their costs of a fact finding hearing at which they were exonerated. The Court of Appeal, reversing the judge, made an order that the local authority should pay their costs. It said that the judge should have started with “a clean sheet” and not with the general proposition in favour of no order as to costs. That local authority has obtained permission to appeal and the matter will be heard in the Supreme Court later this year. The local authority will argue that it was bound to have pursued the fact-finding as part of its child protection duties and that it was not criticised for its decision to do so.
Until this case, that was the position in terms of the authorities. However, Mr Justice Jackson reminded himself of the broad powers within the Family Procedure Rules 2010 and the need to ensure justice,
- I do not consider that the circumstances in which an order for costs may be made are limited to the two exceptions mentioned above. That would improperly hinder the court in its duty to make an order that is just. Nor do the rules speak of such a limit: on the contrary, they require the court to take account of all the circumstances, and not just the conduct of the parties. Likewise, in Sutton, Wilson J specifically refers to unreasonable conduct as an example of circumstances in which the proposition will not apply.
- The present case has been a welfare inquiry into C’s future, and I therefore start from the proposition that there will normally be no order for costs. To succeed in her application, the aunt must demonstrate that there are unusual or exceptional circumstances that justify departure from that proposition
He then determined that there were such exceptional circumstances : –
- The extreme history surrounding C’s placement with her aunt (#4-5)
- The importance for C of the placement succeeding (#12)
- The exceptional challenge faced by the aunt in caring for C (#20)
- The need for the aunt to be a party (#21) and to have legal representation (#22)
- The risk to the placement from the poor relationship between the aunt and social services (#23)
- The stance of the local authority, leading to uncertainty about the outcome until a very late stage (#25)
- The reduction in the length of the final hearing as a result of the aunt being represented (#24)
- Also, while costs do not follow the event, the court is entitled to have some regard to the trajectory of the proceedings. In November 2010, the local authority strongly opposed placement with the aunt: in May 2012, she was granted an adoption order. To note this outcome is not to be critical of the local authority but to recognise how much the aunt has achieved.
This is obviously an important authority (at least until such time as the Supreme Court address Re T, which I understand will be on 25th June 2012, and might dramatically alter matters) because it establishes that (a) the need for equality of arms can be a relevant factor in making a costs order and (b) that a cost order can be made without being unduly critical of the LA but in recognition of progress that the unfunded party has made.
(*My heading by the way, is a tribute to P G Wodehouse and not any attempt to besmirch the aunt in this case, who sounds like a jolly nice person, or aunts in general. They have, as a body of people, been traditionally very kind to me what with gift tokens and scottish pound notes at birthday times and such)