Making costs orders against a non-party – is that the sound of floodgates opening?

The High Court have determined in Re HB, PB and London Borough of Croydon 2013, that a Court may legitimately make an order for wasted costs against an agency who was not a party to proceedings.

In this case, here http://www.bailii.org/ew/cases/EWHC/Fam/2013/1956.html  the wasted costs order was against a Local Authority who had been directed to produce a section 37 report in private law proceedings.  (Section 37 reports are where the Court look at a private law case and think “Hmm, this looks risky, the LA ought to investigate this and see if this case really needs to be public law care proceedings, instead of private law proceedings”)

The allegations in the case were pretty unusual

1. 6.       i) Over a number of years, the mother had falsely led the father (and the paternal family) to believe that she was suffering from cancer of the womb, vagina and brain, and had tumours behind her eye and neck, and that (by early 2012) she only had a number of months to live;

ii) From early in OB’s life, the mother had falsely led the father (and the paternal family) to believe that OB was suffering from a number of serious medical conditions, including untreatable stomach and bowel problems which may require removal of his bowel and the application of a colostomy pouch;

iii) From early in OB’s life, the mother had falsely led the father and the paternal family to believe that OB was lactose intolerant and allergic to over 4,000 foods; she asserted that doctors had advised that OB should not eat solid food;

iv) That the mother had led the father and the paternal grandmother and the paternal aunt to believe that OB may ultimately require a feeding tube and that the paternal grandmother had been informed that OB may die from his medical conditions.

If those allegations were made out, of course there would be considerable concern about the risks posed by mother to the child and her care of the child.  (I pause a moment to question how a social worker alone is supposed to identify whether those concerns are made out…)

The section 37 report was directed and was five weeks late. Not ideal, but not the most delayed s37 report I’ve ever seen, not by a long chalk.

A ‘final hearing’ took place, at which a further section 37 report was directed. That report was four weeks late.

The LA did not seek to commence proceedings, and the social worker was pretty much put to the sword in evidence in the second ‘final’ hearing

27. At the hearing on 10 December 2012, the evidence from the social worker, Mrs. O, contained the following exchanges:

Q:… the father says that the mother told him and family members that OB was unwell/that she exaggerated his illness?

A: Yes but I was given this case to look at contact and residence, and I went on the information in the GP records.

….

Q: … if it is the case that what the father says is true … then the mother was fabricating illness in OB?

A: Yes.

Q: And that would tend to indicate a risk of harm to OB wouldn’t it?

A: But the mother said that she did not say this, and the medical notes made no reference to fabricated illness.

…

Q: …If what the father says is true do you agree that this puts OB at risk of significant harm.

A: If it is true.

Q: …why do you say that the threshold is not met for the LA to apply for an interim care order?

A: I don’t know, the legal team would know. At the time we did not consider that OB was at significant risk of harm.

Q: What is the threshold for an ICO

A: (long pause) I would need to take legal advice.

…

Q: If findings are made against the mother at the end of the hearing what would your position be?

A: I would need to discuss that with the legal team.

Q: If the Judge finds the father’s allegations to be true, do you agree that OB would be at risk of significant harm?

A: I would need to discuss this with the legal team.

Q: If the court finds the father’s allegations to be true what would your recommendation be about contact and residence?

A: I could not make a decision without consulting with members of the legal team and my manager.

Q: So there has been no discussion about this so far?

A: No.

Q: When could you discuss this?

A: Tomorrow perhaps.

…

Q: Did you feel uneasy about the allegations raised by the father against the mother?

A: No I did not feel uneasy but it seemed that the father’s allegations were serious and I do not know why he would have made such reports against mother if they were not true, so I was confused.

28. The social worker further informed the court of the following:

i) that she had had no training in relation to cases of fabricated illness;

ii) that she was unaware of the DCSF 2008 Guidelines, or the ‘Incredibly Caring Programme‘;

iii) that she had not spoken to OB’s General Practitioner;

iv) she had not visited OB’s school, nor enquired of the school what was known about OB’s health (“A: That was not my role. It was not relevant at the time…“; later: “we only visit school when carrying out a section 47 investigation“);

v) that she had not spoken to extended family members (even though the mother had made complaint to them of illness in herself and the child);

vi) that she knew that the child’s attendance record at school was 69.4% in the relevant period (A: “if a child is sick, he’s sick“), indicating that this attendance record was “ok“;

vii) as indicated above, that she did not know the test for an interim care order;

and

viii) that she had no experience as a qualified practitioner in this type of case.

To be fair to this social worker, none of the workers in her team had any experience of cases in relation to fabricated illness. Whilst they are pretty common in the rarefied air of the High Court, most Local Authorities go nowhere near them anymore – they are pretty toxic cases to run, post Cannings.

It didn’t seem to me massively unreasonable for Croydon to take the view that the allegations were being litigated in any event, that the Court was seized of the matter and that the right time to consider whether to issue care proceedings would be after the Court concluded a finding of fact hearing. (which, I note, still hadn’t happened, some eight months after father first raised the allegations of fabricated illness). The real issue with the s37 report is whether the LA should have been in the driving seat for that finding of fact hearing by issuing care proceedings. The Court clearly wanted them to be, but they didn’t seek to.

The High Court found that the failure of the Local Authority to ensure that the social worker who was dealing with a case of allegations of fabricated illness had any training as to that sort of case, knowledge of the key guidance or to seek legal advice.

55. It follows from my findings above (and the concessions made), that the Local Authority failed to follow the DCSF Guidance; this is in itself a serious failing. In this regard, I reproduce and adopt for the purposes of this judgment the comments of Macfarlane J (as he then was) in Re X (Emergency Protection Orders) [2006] 2 FLR 701, generally at §67-§89, but in particular:

“[82] Given the work that has gone into preparing authoritative national and local guidance upon cases of induced or fabricated illness, the court is entitled to expect that when a social work team manager asserts in evidence that this is a case of ‘Munchausen’s syndrome by proxy’ or ‘factitious illness syndrome’ (depending on which note of evidence is correct) the social work team has acted in accordance with the guidance and that the assertion being made is backed up by paediatric opinion.”

56. The comments of McFarlane J are just as relevant, in my judgment, whether it is the Local Authority which is making the assertion of fabricated illness, or (as in the instant case), asserting that to the contrary there are no safeguarding concerns in a case where such allegations have been raised.

So, the Court found that the s37 report was deficient, and that the costs of the hearing that took place were at least in part a result of those deficiencies.

The next leap is to assert that the Court has jurisdiction to make cost orders against an agency who is not a party to those proceedings.  The High Court decided that the agency responsible for a section 37 report is “closely connected” with the proceedings, and thus the existing caselaw (from civil cases and one family case relating to experts) could justify a costs order

59. I regard a local authority in a private law case in which a section 37 direction has been given as being sufficiently “closely connected” with the litigation to justify the order; by such a direction the court is expressly inviting consideration of the issuing of public law proceedings. It should be noted that when a section 37 order is made, the court also has the power (if the relevant ‘threshold’ is established under section 38(2)) to make an interim care order: see section 38(1)(b). Although this did not happen here, this power illustrates in my judgment the extent to which the court can, if it considers it appropriate, draw a local authority directly into private law process of this kind and underlines its ‘close connection’ with the subject matter of the proceedings.

60. My conclusion on this aspect (§59 above) is amply justified by reference to other situations where ‘non-parties’ have been deemed to be ‘closely connected’ to the litigation, including insurers (see Palmer v (1) MIB; (2) PZ Products; (3) Royal & Sun Alliance [2008] EWCA Civ 46); directors (Secretary of State for Trade and Industry v Backhouse [2001] EWCA Civ 67 & Goodwood Recoveries Ltd v Breen: Breen v Slater [2005] EWCA Civ 414); liquidators and receivers (Metalloy Supplies Ltd (in liquidation) v MA (UK) Ltd [1997] 1 All ER 418, CA & Dolphin Quays Developments Ltd (In Administrative and Fixed Charge Receivership) v Mills [2007] EWHC 1180 (Ch)); tribunals (see Providence Capitol Trustees Ltd v Ayres [1996] 4 All ER 760, ChD), and the Legal Aid Board (now Legal Aid Agency) (see Kelly v South Manchester Health Authority [1997] All ER 274).

61. In this respect, Mr Jarmain has drawn my specific attention to the decision of Peter Smith J in Phillips v Symes [2004] EWHC 2330 in which it was held that the court had power to make a costs order against a non-party expert witness. Peter Smith J had held that:

“It seems to me that in the administration of justice, especially… it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his evidence causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court…

… The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice” [§94-§98]

62. In my judgment Phillips v Symes survives (indeed is fortified by) consideration of similar (i.e. immunity) issues in Jones v Kaney [2011] UKSC 13.

Whilst I think Croydon were a bit unlucky in this case (effectively what had happened in reality was that the s37 request had just gone into a pile with all the other s37 requests, were allocated out and the worker did the report in the same way as any other one would have been done, rather than the LA recognising that this was a veritable hot potato and that a legal planning meeting to discuss the case should have been arranged)  I can see an argument that this was an exceptional case.

My concern would be Courts starting to dish out costs orders for late section 37 reports.

I am also interested, not least because of the time pressures that the Courts will be under, whether a rushed finding of fact hearing which won’t be able to take place because police records, or medical reports or X-rays that were directed didn’t arrive in good time, might develop this area of law that in those circumstances the police or NHS are “connected persons”

In the meantime, if you are a social worker and you’ve got a fabricated illness case, pick up the phone and have a word with your lawyer. And if you’ve got a section 37 report to write and the allegations are really difficult or unusual, you might want to do the same.