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Supreme Court allows local authority’s appeal against costs order

General rule in In Re T applies to appeals

In Re S (A Child) [2015] UKSC 20 the Supreme Court has allowed the local authority's appeal against a costs order made against it.

The Justices, comprising Lady Hale, Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson, unanimously held that the principle confirmed by the Supreme Court  In re T (Care Proceedings: costs) [2012] UKSC 36 applied to this case.

The father of a young girl (called Amelia in the judgment) successfully appealed against a placement order obtained by a local authority for Amelia's adoption without her father's consent. The Court of Appeal ordered the local authority to pay the father's costs of the appeal.

In bringing his successful appeal against a placement order the father had incurred legal costs assessed in the sum of £13,787. The Court of Appeal ordered that the local authority should pay those costs because it had resisted the appeal, and in order not to deter a parent from challenging decisions which impact on the most crucial of human relationships. It held that the principle in In re T was not applicable to appeals. The local authority appealed to the Supreme Court in relation to the costs order only, and on the basis that whatever the outcome, it would not seek to recover the costs awarded and paid to the father.

Lady Hale gave the only judgment. In re T upheld the general practice of not awarding costs against a party, including a local authority, in children's proceedings, in the absence of reprehensible behaviour or an unreasonable stance. It held that local authorities should not be deterred from their statutory duty to protect children by bringing proceedings. Lady Hale said that In re T was different from this case, in that it involved a first instance fact-finding hearing rather than an appeal; and the costs of interveners who merely wished to clear their names of abuse allegations, rather than of parents who wished to care for the child themselves [13].

The question was whether these distinctions were material. The general rule that in civil proceedings the unsuccessful party will be ordered to pay the costs of the unsuccessful party does not apply to first instance or appellate proceedings about children [15]. For many years the practice in such proceedings has been to make no order in the absence of exceptional circumstances. No one should be deterred by the risk of having to pay the other side's costs from playing their part in helping the court achieve the right solution [21].

Lady Justice Hale said that it is irrelevant whether a party is publicly funded or not [25]. Parents are always entitled to resist the claim of the state to remove their children from them, but it does not follow that the local authority is unreasonable in seeking to protect the child if it loses [28].

On an appeal different considerations will apply when assessing whether a party has acted unreasonably but the principle is the same [29]. In re T did not rule out the possibility of other circumstances in which an award of costs in care proceedings might be appropriate [31] provided that a local authority was not put into a worse position than private parties [32]. Nor should it be put in a better position. The object of the exercise is to achieve the best outcome for the child and there may be cases where the welfare of the child would be put at risk if a costs order is not made [33].

In this case, said Lady Hale, it was not suggested that the local authority had behaved in any way reprehensibly towards Amelia or her father [35]. The suggestion that it should not have opposed the appeal because of the deficiencies in the first instance judgment was unwarranted and the Court of Appeal would have been surprised had the local authority failed to respond to the appeal [36]. None of the exceptions to the general approach to awards of costs in children cases applied in this case and the appeal (with the assurance that the local authority has given as regards the father's costs in this case) was therefore allowed [39].

The judgment is here and press summary, from which this item is derived, is here.