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Council ordered to pay legal costs of brothers who spent 13 years in foster care

Lancashire CC escapes indemnity award due to its cooperation in the litigation process.

Lancashire County Council has been ordered to meet the costs of the applicants in the case of A and S (Children) v Lancashire County Council [2012] EWHC 1689.

In that case, Mr Justice Peter Jackson found Lancashire County Council liable for the degrading treatment, including physical assault, suffered by two brothers who have spent nearly all their lives in care. The brothers were subjected to 13 years of fostering, with one boy having 96 placements and his brother 77. The judge made a declaration that the council had breached their rights under Arts 8,6 and 3 of the ECHR and the independent reviewing officer had breached their rights under Arts 8 and 6.

The brothers had been taken into the care of Lancashire County Council in 1998, with their subsequent history being recorded in what the Judge described as a 'staggering 19,000 pages of social work records'.

In 2002 the siblings were placed with 'abusive' foster carers and were removed when the police became involved.  In 2008, they were again removed from another foster family when one of the boys was assaulted with a belt.

In the latest proceedings - reported as A and S (Children) v Lancashire County Council [[2013] EWHC 851 (Fam) - relating to the costs of the substantive application, Mr Justice Peter Jackson, acknowledging that in normal circumstances an application by a local authority to discharge a freeing order or a placement order would not lead to any consideration of a costs order against it, said:

"However, in this case [Lancashire County Council's] conduct in relation to these boys over many years was blatantly unlawful and unreasonable (as both it and the IRO have accepted) and led inexorably to substantial litigation. The extensive period of the default meant that the amount of material to be analysed was itself extensive, and the time necessary to analyse it was correspondingly long. LCC having handed over its archive, it fell to those representing the boys to make sense of it, with little if any original insight coming from LCC itself, as opposed to from the IRO."

A costs statement in the £175,000 + VAT has been served on behalf of A and S. Jackson J concluded:

"I do not, however, consider that the facts of this case merit the additional penalty or stigma of an award on the indemnity basis. That conclusion would almost certainly have been different had LCC not cooperated in the litigation process to the extent that it did."

The costs statement was ordered to be subject to a detailed assessment on the standard basis.

Anthony Hayden QC and Lorraine Cavanagh both of St Johns Buildings (instructed by Farleys Solicitors) represented A and (instructed by the Official Solicitor) S. Malcolm Sharpe of Atlantic Chambers (instructed by LCC Legal Services) represented the local authority.