Order for costs - Parties to care proceedings - Whether authority should pay proportion of costs

A County Council v A mother and others: Family Division (Mr Justice Baker): 18 May 2011

The first respondent was the mother of three children, X, Y and Z, the third respondents.

The second respondent, F, was the father of Z. The intervenor, IR, was the mother’s current partner.

In October 2009, the applicant local authority filed an application for a care order in relation to X, Y and Z.

In March 2010, IR applied to be joined as a party, on the basis that he understood that X had made an allegation of sexual abuse against him which he wished to defend.

In April, the authority indicated that it no longer sought a finding that IR had abused any of the children.

The parties appeared before the court in a fact-finding hearing. In March 2011, judgment was handed down following the conclusion of that hearing (see A County Council v A mother and others [2011] All ER (D) 33 (Jun)).

The court held that: (i) the mother’s failure to protect her children had satisfied the threshold criteria under section 31 of the Children Act 1989; and (ii) F had, on occasions, excessively chastised the children and, at times, had acted in a way that had been unreasonable and contrary to their interests.

The court criticised the authority’s approach to the disclosure of the documents in the proceedings which was said to have occurred in ‘a wholly unsatisfactory piecemeal and haphazard fashion’.

It was noted that, ‘when the extent of the lack of preparation and disclosure became clear, the authority had adopted the desperate remedy of disclosing all material to the respondents and abdicating to them responsibility for determining what was and was not relevant’.

The respondents and IR made an application for their costs.

The respondents submitted that the authority should pay a proportion of their costs occasioned by the failure of the authority to comply with its duties of disclosure.

IR submitted that the authority should pay all or part of his costs on the grounds, among other things that he, unlike the mother and F, had been completely exonerated of all allegations made against him.

The application would be allowed in part.

(1) It was settled law that the general proposition that the court would make no order as to costs in care proceedings also applied to proceedings to which a local authority was a party.

However, the proposition was not applied where, for example, the conduct of a party had been reprehensible or the party’s stance had been beyond the band of what had been reasonable (see [5]- [6] of the judgment).

In the circumstances, at least three of the additional court days, and at least one of the extra advocates’ meetings, had been attributable to the authority’s failure to disclose documents in accordance with its duties.

It had been wholly inappropriate for the authority to delegate the task of reading through its documents to the respondents’ counsel.

That had been work done outside the respondents’ public funding certificate and counsel had been entitled to be remunerated.

A significant proportion of the written submissions on behalf of the guardian had been occasioned by the authority’s failings and it was right that the authority should meet those costs, falling as they did, outside the public funding certificate (see [30]-[31] of the judgment).

The authority would pay: (i) the publicly funded costs of all the respondents’ leading and junior counsel for three days of the hearing and one advocates’ meeting; (ii) for the work done outside the respondents’ public funding certificates by junior counsel for the mother and father and leading and junior counsel for the guardian;

(iii) not less than 50% of the time spent on the written submissions, namely 18.5 hours in the case of leading counsel and 17 hours for junior.

The authority would be required to pay £73,765 towards the respondents’ costs (see [30]-[33], [53] of the judgment).

Sutton London Borough Council v Davis (No 2) [1994] 2 FCR 1199 considered; J (children) (costs of fact finding hearing), Re [2009] All ER (D) 266 (Oct) considered; T (children) (costs), Re [2011] 1 FCR 354 considered.

(2) It was settled law that where in care proceedings a local authority raised, however appropriately, very serious factual allegations against a parent or other party, and at the end of a fact-finding hearing a judge concluded that they have not established them, the general proposition in favour of no order as to costs was not in play.

In those circumstances, the judge should start with a clean sheet on the question of costs.

Where the court had taken the lead in identifying the issues to be litigated at a fact-finding hearing, it would generally be inappropriate to depart from the general proposition as to no order as to costs in family proceedings (see [7]-[10], [41], [45] of the judgment).

In the present case, it would not be right to order the authority to pay the costs of IR following his exoneration of the allegations.

The authority had been participating in the court process as would be expected of a local authority with a proper interest in the children who were the subject of the proceedings.

Both the decision to investigate the allegations and the decision that IR should remain a party after the court had indicated that he would be exonerated had been taken by the court.

The authority’s behaviour toward IR had not amounted to the sort of reprehensible conduct identified in Sutton London Borough Council v Davis (No 2) [1995] 1 All ER 65 as justifying a costs order in his favour.

Further, in the circumstances, no extra cost had been incurred in respect of IR’s ­publicly funded costs as a result of the authority's failure to comply with its disclosure obligations (see [43]-[50] of the judgment).

The application for costs on behalf of IR would be dismissed (see [51] of the judgment).

J (children) (costs of fact finding hearing), Re [2009] All ER (D) 266 (Oct) followed; T (children) (costs), Re [2011] 1 FCR 354 distinguished.

Anthony Kirk QC and Brenda Morris for the authority; Sandria Murkin for the first respondent; Isabelle Watson for the second respondent; Alison Ball QC and Margo Boye for the third respondent; Jo Delahunty QC and and Christopher Poole for the intervenor.