Re S (a Child) [2015] UKSC 20

The Supreme Court considered whether a local authority should pay a father's costs after his successful appeal against care and placement orders. It held that the general 'no costs' rule in children's cases applies equally to appeals, absent reprehensible or unreasonable conduct.

Facts

The case concerned Amelia, aged seven, one of four children of Ms A. Care proceedings were commenced in January 2012, and Her Honour Judge Karp found in November 2012 that the threshold conditions under section 31(2) of the Children Act 1989 were satisfied due to neglect, inadequate supervision, and risk of sexual abuse. The mother was ruled out as a future carer.

The father, who had separated from the mother before Amelia’s birth, had remarried and subsequently moved to Norway following separation from his second wife. He sought to be assessed as Amelia’s sole carer. The local authority and children’s guardian opposed this, supporting a placement order for adoption. Judge Karp made a placement order in July 2013.

The father successfully appealed to the Court of Appeal ([2014] EWCA Civ 135), which held that the judge had been wrong to make the order without further assessment of the father, particularly in light of In re B-S (Children) [2013] EWCA Civ 1146. Amelia has since been placed with her father in Norway under a child arrangements order. The Court of Appeal ordered the local authority to pay the father’s appeal costs of £13,787.70. The local authority appealed that costs order, undertaking not to recover the sum from the father whatever the outcome.

Issues

The principal issue was the proper approach to ordering an unsuccessful party (in this case, the local authority) to pay the costs of a successful appellant parent in care proceedings. Specifically: (i) whether the principles in In re T (Care Proceedings: Costs) [2012] UKSC 36 applied to appeals as well as first instance hearings; and (ii) whether there were circumstances beyond reprehensible behaviour or an unreasonable litigation stance that might justify a costs order.

Arguments

For the father (respondent)

Dr Bainham argued that parents are always entitled to resist the state’s claim to remove their children, and that a parent should not be deterred from challenging decisions which impact upon the most crucial of human relationships by the prospect of costs.

For the local authority (appellant)

The local authority argued that the principles in In re T applied, that they had not behaved reprehensibly nor taken an unreasonable stance, and that the case raised matters of public interest warranting consideration by the Supreme Court.

The intervener (Access to Justice Foundation)

The Foundation argued that pro bono costs orders under section 194 of the Legal Services Act 2007 should follow the same principles as ordinary costs orders, and contended that the general position should be that local authorities pay the costs of successful parent appellants.

Judgment

Lady Hale, delivering the unanimous judgment, allowed the appeal and set aside the costs order. The Court reaffirmed and extended the principles in In re T, holding that the general rule that costs are not awarded in children’s cases applies equally to appeals as it does to first instance proceedings.

The Court analysed the rules: CPR rule 44.2(2) does not apply to family proceedings either at first instance (FPR rule 28.2(1)) or on appeal in family matters (CPR rule 44.2(3)), although CPR 44.2(4) and (5) do apply. Lady Hale endorsed the classic explanation given by Wilson J in Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317, noting that in children’s proceedings the child is the only winner, parties should not be deterred from participating, and stigmatising one party as the loser jeopardises future cooperation.

The Court identified several reasons supporting the ‘no costs’ approach: the welfare of the child is paramount under section 1(1) of the Children Act 1989; proceedings have inquisitorial features; all parties are generally motivated by concern for the child; cooperation between parties is essential going forward; and costs orders could reduce resources available for the child’s care.

Lady Hale rejected the suggested distinctions between this case and In re T. The fact that the claimants in In re T were interveners rather than parents was not material; if anything, the reasoning applied more strongly to parents and local authorities. Nor was the fact that this was an appeal rather than a trial a sufficient reason to depart from the general approach, though it may affect the application of principles to particular facts since, on appeal, the judge’s findings and reasons are known.

However, the Court accepted that the categories of exception are not closed. Beyond reprehensible conduct or unreasonable stance, an additional possible exception was identified: where the welfare of the child would be put at risk if the family had to bear its own costs, an order against the local authority might be justified, analogous to ordering a richer parent to pay the costs of a poorer parent caring for the child.

On the facts, the local authority had not behaved reprehensibly. Its decision to resist the appeal, supported as it was by the children’s guardian, the independent social worker and the psychotherapist, was reasonable. The deficiencies in the first instance judgment (lack of detailed analysis post In re B-S) did not render the local authority’s stance unreasonable. The hardship exception had not been pursued in a manner allowing the question to be properly addressed.

On pro bono costs, the Court noted that the logic of the general approach is that no special exception is made for pro bono costs orders under section 194 of the Legal Services Act 2007.

Implications

The decision clarifies that the ‘no costs’ approach in children’s cases extends to appeals as well as first instance proceedings, and applies equally to care proceedings involving local authorities as to private law proceedings between family members. Costs orders should only be made in unusual circumstances, namely where a party has behaved reprehensibly or taken a stance beyond the band of what is reasonable.

The judgment identifies a potential further exception: where requiring the successful family to bear its own costs would put the welfare of the child at risk. This is a cautious and narrow extension, dependent on evidence of impact on the child.

The decision matters to local authorities, parents and practitioners in care proceedings. It confirms that local authorities will not generally face costs liability simply because they unsuccessfully resist a parent’s appeal, provided their stance was reasonable. This preserves local authority resources for child protection functions while not deterring parents from appealing, since the underlying difficulty of funding appeals (no non-means-tested legal aid being available) is a matter for the legal aid framework rather than the costs regime.

The judgment also confirms that the public funding status of parties is irrelevant to whether a costs order is just in principle, while leaving open consequential questions about the effect on publicly funded litigants. The pro bono costs point is addressed only briefly, with the Court holding that the same general approach applies.

Verdict: The appeal was allowed and the costs order made by the Court of Appeal against the local authority was set aside.

Source: Re S (a Child) [2015] UKSC 20