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Grandparents Association calls for reform of costs rules in care proceedings following T (Children)

Organisation welcomes Supreme Court’s clarification which highlights injustice

The Grandparents Association has welcomed the clarity given in the recent Supreme Court decision in re:  Re T (Children) [2012] UKSC 36.

 The Grandparents Association, a national charity set up to achieve positive outcomes for grandchildren, was given permission to intervene in the Supreme Court proceedings where it was represented by Charles Hale and Rebecca Foulkes of 4 Paper Buildings and Freemans Solicitors on a pro bono basis.

The appeal to the Supreme Court dealt with the liability of a local authority to pay the costs of a party to care proceedings were there was no suggestion of reprehensible behaviour on the part of the Local Authority.  In this case the grandparents were joined to care proceedings after serious allegations had been against them (and others) by their grandchildren. Due to their financial position (they owned their own home in which there was equity above £100,000.00) they were not financially eligible for legal aid and so borrowed £ 55,000.00  to cover their costs. Although they were completely exonerated of all the allegations, the judge decided that notwithstanding the serious impact the loan had on their future life, he would not order the Local Authority to pay their costs. The grandparents appealed and won the next round in the Court of Appeal  - Lord Justice Wilson (as he then was ) stating that it would be unjust for them to bear their own costs. The Local Authority appealed to the Supreme Court, although they agreed and paid the costs as awarded by the Court of Appeal.

The Supreme Court has restored the earlier approach in children proceedings not to order costs in the absence of unreasonable or reprehensible conduct by a local authority.  Additionally it was accepted that, when considering whether it was just to make an award of costs against a local authority acting in furtherance of the statutory duties imposed upon it by the Children Act 1989, it was legitimate to have regard to the competing demands on the limited funds of the local authority. 

Lynn Chesterman, Chief Executive of the Grandparents Association, said:

"The result was not a big surprise and it is helpful that the position is now clear. However there does remain a serious issue when innocent people are subject to serious allegations in care proceedings and they are not eligible for legal aid. Given the serious consequences for grandparents, in particular, if the allegations were to be proven, we believe they should be able to avail of the same legal aid provision as if they were criminally charged. In the alternative upon being exonerated the Courts should be able to award costs as if in a criminal case from Central Funds. We are grateful to the Supreme Court for identifying and acknowledging this injustice."

To read an analysis of the Supreme Court's judgment, written by Dorothea Gartland of 4 Paper Buildings and Penny Logan of Cafcass, please click here.