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RP (Appeal costs) [2019] EWCA Civ 680 (16 April 2019)

An appellant attempted to recover litigation costs against the LA and Cafcass and failed.

By way of brief background, on 31 January 2019 the court allowed an appeal by a foster carer against a care order made by HHJ Rowe QC in respect of a girl, RP. The girl had been living with her foster care for 14 months preceding the final hearing in October 2018 at which the care order was made and a placement in Poland sanctioned by the court. The full judgment is now reported at [2019] EWCA Civ 525.

At the appeal hearing, the court found that the conduct of both the local authority and the children's guardian fell short of the standard expected in care proceedings and criticisms were made of their work in the case.

Following the successful appeal, the foster carer sought to recover her costs from the local authority and Cafcass.

Baker J, delivering the judgment, confirmed the approach to be taken as set out in two Supreme Court cases: Re T [2012] UKSC 36, and subsequently in Re S [2015] UKSC 20. General practice in proceedings relating to children is to make no order for costs save for in exceptional circumstances. The principal reason is that there are no adult winners or losers as the welfare of the child is the court's paramount concern and thus the child should be the winner.  That said, there are cases where the conduct of a party has been reprehensible or their conduct has fallen below what is reasonable as identified in Sutton London Borough Council v Davis (No 2) [1994] 2 FLR 569 and costs orders are made. 

The court determined in this case that whilst the conduct of both the local authority and children's guardian was not good enough, it did not fall within the category of behaviour identified in the Sutton case and therefore the court made no order for costs. 

Summary by Anna Walsh, barrister, Coram Chambers 

You can read the full judgment of RP (Appeal costs) [2019] EWCA Civ 680 on BAILII