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“When they begin, to intervene…”

Sorry, the titles just get worse.  (but I bet you’re humming it already)

 Two important cases on Interveners in fact-finding hearings, or  “Re T for two”

 

The first is the Supreme Court decision in Re T.

 

http://www.supremecourt.gov.uk/docs/UKSC_2010_0244_Judgment.pdf

 

 

This relates to an appeal from the Court of Appeal, which in turn considered an appeal from a County Court.  It related to the order at the conclusion of a finding of fact hearing (which took 5 ½ weeks) that one of the Interveners, who was not publicly funded and who was not found to have perpetrated the injury, should have his costs paid by the Local Authority, who had brought the care proceedings.

 

This was a very important case for both Local Authorities and those who represent Interveners, particularly those who would not financially qualify for legal aid.

 

The costs that the Intervener had to pay was £52,000 so one can see why the  Court of Appeal were looking around for someone to foot that bill, since the Intervener was found to be blameless.

 

The children had made allegations of a sexual nature against the father and six other men, all of whom intervened. Five received public funding, the sixth did not.

 

All of the interveners were exonerated at the finding of fact hearing.

 

4. It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents. The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based “on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs”.

The judge dismissed their application. He did so on the basis that it was not usual to order costs in a child case against a party unless that party’s conduct has been reprehensible or its stance unreasonable. In support of that proposition the judge cited authorities that included the judgments of Wilson J inSutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.

The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with “potentially life-changing allegations” without being able to gain some financial assistance from the State.

 

 

I don’t disagree with that at all, and I think the judge at first instance got this entirely right. It is deeply unfortunate that someone faced with allegations as grave as this, particularly where they are disproved has to pay their own costs, but that misfortune can’t extend to making the Local Authority pay unless their conduct in bringing the case is reprehensible or unreasonable.  Otherwise one runs the risk of very serious cases not being put before the Court as a result of fear of costs orders being made if the allegations are not established.

 

[Frankly, I think non means, non merits legal aid ought to be available to any party who is able to satisfy the Court that they should be involved within the proceedings, whether as an Intervener or a party given leave to make an application; but that was obviously beyond the scope of the Courts]

 

This is interesting, from paragraph 6  (and these were some heavy-hitters in the world of counsel)

 

It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono. We would like to express our gratitude for the assistance that they have given.

 

CAFCASS in the case submitted that the Court of Appeal decision was the first one where a Local Authority were ordered to pay costs where there was no criticism of its conduct of the litigation  (effectively adopting a civil – “loser pays” philosophy)  and that, of course, is why the case was important enough to make it to the Supreme Court.

 

Particularly, this passage at para 18 of Wilson LJ’s judgment in the Court of Appeal on this case  (the ‘general proposition’ being that costs orders shouldn’t be made in family proceedings in the absence of unreasonable conduct)

 

            “I consider that, where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of a fact-finding hearing the judge concludes that they have not established them, the general proposition is not in play.”

 

 

The Supreme Court sum up the issues admirably here:-

 

39. The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigant’s costs should be publicly funded. The former question is for the court; the latter for the legislature. Whether a litigant’s costs should be publicly funded involves issues in relation to access to justice and the requirements of article 6 of the European Convention of Human Rights. Mr Hale invoked that article in support of his argument that where allegations made against an intervener are not made out, the local authority which advanced those allegations should be liable for the intervener’s costs. We consider that this argument was misconceived. The requirements to provide public funding in the interests of access to justice and of compliance with article 6 apply at the outset of legal proceedings, not when they are concluded, in the light of the result.

 

40. The Funding Code prepared by the Legal Services Commission pursuant to section 8 of the Access to Justice Act 1999 makes provision for public funding in proceedings under, inter alia, section 31 of the Children Act 1989. The effect of the code is that children, parents and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings: see volume 3C-427 of the Legal Services Commission Manual. There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.

 

 

And I would suggest that the Supreme Court here were expressing a deal of sympathy for the suggestion that the LSC ought to be stumping up for interveners, but are obviously bound by the funding code  [in the absence of a judicial review challenge to the construction of that funding code or its exercise in a particular case]

 

 

And they conclude the case here:-

 

41. If in principle a local authority should be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded, then this liability should arise whether or not the interveners are publicly funded.

In the present case, the five men who intervened and were exonerated should also have sought and been awarded costs. The burden of costs awarded against local authorities in such circumstances is likely to be considerable. When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority.

 

42. In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.

 

43. Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate “in the vast run of these cases to make an order for costs in whole or in part by reference to the court’s determination of issues of historical fact”. But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing. The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact. The effect on the resources of local authorities, and the uses to which those resources are put would be significant.

 

44. For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse’s costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal.

 

 

I’m usually a believer in Kim Hubbard’s remark “Whenever someone says, ‘it’s not the money it’s the principle’ it is always the money”    but in this case, the Local Authority involved (Hull) have clearly taken this case up to the appropriate level of judicial decision-making as a matter of principle  (they’d already paid the grandparents their costs, and weren’t seeking to recover them), and I thank them for it.

 

 

Just when I thought I was out – they pulled me back in – Michael Corleone

 

 

The second case also involves a very heavyweight group of counsel, and a case involving an Intervener. 

 

Again, it is Re T  (how thoughtless)   but this time RE:  T (Children) [2011] EWCA Civ 1818

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed99436

 

(That also contains a very good summary of the case, and is indupitably going to be better than my attempt)

 

Within care proceedings, allegations were made of physical abuse and sexual abuse against one of their uncles ‘DH’  who was 18 by the time the appeal was heard, and one must assume an adolescent/child at the time the allegations were said to have occurred.

 

There were a raft of other threshold concerns in the case, and it was accepted that findings of sexual abuse, though capable of being made, were going to be challenging as opposed to straightforward.

 

The Local Authority sought, amongst other matters, a finding against the father that he had sexually abused DH and that it was this sexual abuse that had led to DH in turn abusing the other children.

 

 

At the pre-hearing review, DH did the smartest thing I have ever seen an Intervener do within care proceedings, and that is to say in terms “this doesn’t seem to be a very good idea for me to be involved in this, and I’m out”   (I hope he said it in a Duncan Bannatyne accent, but given that he was being represented by the splendid Rachel Langdale QC – my third favourite Rachel/Rachael, I somewhat doubt it)

 

The Judge agreed that he should cease to be an Intervener, and instead give evidence as a witness.  The Local Authority, supported by the father, appealed that decision.

 

The Court of Appeal determined that the appropriate decision on whether any particular allegation proceed to a finding of fact hearing is as set out in

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

And then went on to consider whether the allegations that the LA made that directly involved DH  (that he had abused the children, and that had arisen because he had himself been abused by father) were such that they needed to remain live issues in the case.  The resonant (though unpleasant to the squeamish) phrase “the allegations of sexual abuse have come dripping in during the course of the proceedings”  kept being used in the judgment.

 

The finding of fact hearing that was already listed was down for 20 days, and had five silks, six if Miss Langdale QC remained representing DH.

 

The father’s case was essentially that DH could not be relied upon as a witness and was of bad character – as a witness there would be limits in what could be put to him, whereas as an Intevenor, it would be possible to go further. There were, the father submitted, significant problems in the LA seeking a finding that the father had sexually abused DH without considering what was the root of that finding (the allegations that DH had abused the other children)

 

The Court of Appeal considered that it was a matter for the trial judge to determine what allegations it was appropriate to consider in a finding of fact hearing and which were peripheral, and therefore whether DH was required to be an Intervener, or whether he could be discharged as an Intervener and merely be a witness

 

24. The problem, therefore, is essentially one of case management.  Was the judge entitled to regard this as peripheral?  In my judgment, yes.  The main complaint is of emotional abuse.  The main complaint of sexual abuse lies at the door of M, not of P or DH.  The sexual allegations against them towards children of the family are not strong.  The sexual allegations relating to KE when he was nine or ten and she was five or six are buried in the dim depths of history. It is, it seems to me, quite unfair to charge a boy now 18, damaged as he may be by life’s experiences at his home and in care, with inappropriate sexual shenanigans between those young children.  And it may not be the best pointer towards his disposition or sexual tendencies as he grows up.  I think he has a girlfriend.  I know not.  The allegations against N are again the allegations made against a boy of 13.  And the extent, therefore, to which the local authority can rely upon findings of that kind to portray that this boy in his present condition is a danger to children is a matter upon which I for my part, though it will be a matter for the judge eventually, am rather sceptical.

25. So I agree this is a peripheral issue in the case and in the context of the case the judge is also entitled to think it is disproportionate to extend this already extended trial by raising three separate allegations or two other allegations, namely N and KE, as a complication to an already complicated case.

26. I said it was a matter of case management and it is.  As things stand at the moment, it would be for the judge to judge the credibility of this boy.  He may be able to say “I am not satisfied by him, therefore I cannot be satisfied that the complaint against the father is made out.”  That is the end of it.  He can, of course, come to a conclusion that, having heard DH, he is quite satisfied that DH has in fact abused KE and N and, although he said he is not intending to make findings, he may be driven not to make findings in the care proceedings as such, but to explain his judgment by expressing his conviction in that way.

27. In any event, he, the judge, will deal with this on the disposal.  He will have seen four weeks of this case.  He will know full well how much weight to place upon the various factors and how important it is in the life of these five children whether or not this boy has done what is alleged against him. 

 

 

Unfortunately, though the principles are interesting, it is quite case specific, and doesn’t really analyse whether an Intervener can actually bail out as a strict matter of choice, having seen the totality of the evidence and taking a view that he no longer wishes to participate. 

 

It is clear that someone cannot be compelled to intervene in proceedings or compelled to be a party, because we always ‘invite X to consider becoming an intervener’   but once they are in, are they in for the long-haul, or not?

 

I think that I would argue that since one cannot stop a father, say, in care proceedings from simply ceasing to give instructions or attend Court, and effectively playing no role  [save for the possibility of witness summonsing him to give evidence]  it cannot be right that someone is forced to continue as an Intervener against their will.  But it is of course an application for leave to withdraw, and with any application, it must be at least theoretically possible for a Judge to say ‘yes’ or ‘no’  since if not, it isn’t an application at all, but a rubber stamp.

 

In this case, if the Court of Appeal HAD considered that the allegations against DH did warrant a finding of fact hearing, they could have overturned the decision to give LEAVE for DH to withdraw as an Intervener, but the Court would have been fairly powerless had DH said “I am sacking my legal team, I will not file any statement and I will not attend the hearing or make any representations unless I am witness summonsed, whereupon I will attend only to give evidence”   – he would have been an intervener in name, but not in reality.

 

I had thought that I recalled a case that findings against a non-party could only ‘stick’ if they had been an intervener, but I can’t find it, and my memory of it is going back to the late nineties, so I am probably wrong.  [It did lead me down an interesting sideline of seeing just how many of the 1990s cases about inteveners were a judicial “I should coco, sunshine, on your bike” whereas we now have people intervening at the drop of a hat]

 

 [So the long and the short of it is – as an intervener, you won’t get your costs so you may as well ‘get your coat’]

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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