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Wasted costs order made against non-party local authority

LA directed to prepare section 37 report is ‘closely connected’ to private law proceedings

Mr Justice Cobb in HB v PB [2013] EWHC 1956 (Fam) has made a wasted costs order against the London Borough of Croydon in what is thought to be the first reported case of such an order being made against a non-party local authority.

The case concerned OB, who is now nearly six years old. The parents separated and the father did not return OB to the mother after an agreed contact visit. The mother made a 'without notice' application and obtained a specific issue order to secure OB's return. She further sought a section 8 residence order. The father cross-applied for section 8 orders, and on the return date of the mother's 'without notice' application, he raised a number of serious allegations about the behaviours of the mother.  Those allegations, which carry the generic description of 'fabricated illness' (though Cobb J discouraged the use of the term in this instance), were, the father said, relevant to the determination of the issues of residence and contact. District Judge Parker made an order under section 37 directing a report from the London Borough of Croydon.

The local authority allocated responsibility for the report to a social worker, Mrs O. The report was apparently signed by her on 10 June 2012, and filed on 2 July 2012, five weeks after the directed date. At the hearing it became apparent from Mrs O's evidence that in preparing her section 37 report, she had not considered the DCSF Guidance referred to above, the existence of the "Incredibly Caring Programme" (Bools & o'rs [2007], recommended in the DCSF Guidance at §6.52/6.60) used to train social workers in dealing with cases of fabricated illness, nor the guidance in Coventry City Council v X, Y and Z (Care Proceedings: Costs).

Mrs O's Team Leader, Ms Gordon, indicated that the local authority wished to reconsider its position overnight. The matter was therefore adjourned on the basis that Mrs O and Ms Gordon would attend court the following morning. In fact the social workers attended court late giving no opportunity for discussions with the parents' advocates, and Mrs. Gordon was called straight into the witness box; she gave short evidence. Following that evidence, the parties entered into discussions which led the local authority to indicate a wish to hold a legal planning meeting urgently to consider the case. The parties agreed that the hearing could not proceed, let alone conclude effectively, and given the complications and the difficulties of listing the case quickly in Croydon, the case was transferred to the High Court for urgent directions on 14 December. The position of the local authority was recorded in the face of order, thus:

i) that it would hold a legal planning meeting and take a decision as to whether or not to issue proceedings before the hearing on 14 December 2012, and
ii) it would attend and be represented at the hearing on 14 December 2012 to explain why it should not pay the costs of the hearing on 10-11 December 2012.

A directions hearing was listed before Hogg J on 14 December 2012; a direction for a further section 37 report was made. The costs of the hearing on the 10 to 11 December and the 14 December hearing were reserved and the Local Authority was given permission to be represented on the last day of the fact-finding hearing to show cause why they should not pay the costs of the December hearings.

A subsequent section 37 report was prepared and filed. This report was filed nearly four weeks late, on 27 February 2013.

Before Cobb J it was contended that there has been a combination of 'systemic' and specific failures of the Local Authority which had fundamentally undermined the purported work for the section 37 enquiry; this in turn had led to the wasted court days in December 2012.

Whilst the local authority accepted that its investigations were "inadequate", explaining that the report was the product of "hard pressed allocated social workers and team managers who have a very considerable case load to manage", it noted the "exceptional" nature of the order sought, and urged Cobb J to treat the application with "considerable caution". The authority emphasised that such an order should be made only where "the non-party payer, although not a party to the proceedings, is so closely connected with, or responsible for, the proceedings as to make it just to saddle him with liability for the costs."

Cobb J determined:

"[I]n my judgment the failures in this case are not 'minor'; they are extensive, and have had a profound effect on the conduct of the proceedings. The Local Authority has in my judgment failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father's allegations when it prepared its section 37 report filed in July 2012 or at any time in the period which followed prior to the December 2012 hearing."

Considering the extent of the connection of the local authority to the proceedings, Cobb J said:

"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."

The father was awarded his costs of the wasted hearings in December 2012 from the local authority on a summary assessment.

Stephen Jarmain of 1 Garden Court (instructed by Atkins Hope) represented the father (PB). Annmarie Harris of 3 Dr Johnson's Buildings (instructed by Amphlett Lissimore) acted for the mother (MB). Michael Bailey of Tanfield Chambers (instructed by Irvine Thanvi Natas, Solicitors) acted for the child by his guardian. Mark Calway of Renaissance Chambers (instructed by the Local Authority Solicitor) acted for the London Borough of Croydon.

The full judgment is available here.