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Supreme Court applies the general practice of not awarding costs against authority in care proceedings to fact-finding hearings

Grandparents’ award of costs against the authority is not disturbed by decision

The Supreme Court has unanimously allowed the appeal of Hull City Council In T (Children) [2012] UKSC 36 against an award of costs, made by the Court of Appeal, in respect of a fact-finding hearing in care proceedings.

The Court has held that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of discrete fact-finding hearings.

Lord Phillips delivered the judgment of the court.

This appeal concerned the liability of a local authority to pay the costs of a party to care proceedings.

The proceedings related to two children, whose parents were separated. The local authority applied for a care order under section 31 (2) Children Act 1989 in response to the making of allegations by the children that they had suffered sexual abuse by their father and six other men, in which the father's parents ('the grandparents') had colluded. The six men and the grandparents were joined to the care proceedings as interveners. The judge conducted a lengthy fact-finding hearing, as a result of which he exonerated five of the six men and the grandparents of any such abuse.

The interveners were entitled to be represented at the hearing. The six men qualified for legal aid but the grandparents did not. They incurred costs of £52,000, which they met by taking out a mortgage on their house. At the end of the hearing they applied for an order that the local authority should pay their costs on the ground that they had succeeded in defending the allegations made against them. It was accepted that the local authority had acted reasonably in bringing the proceedings.

The judge refused their application on the basis that it was not usual to order costs in a child case against a party unless that party's conduct had been unreasonable or reprehensible. The Court of Appeal allowed the grandparents' appeal, holding that costs could be awarded in respect of discrete fact-finding hearings.

Although it rarely hears appeals relating solely to costs, the Supreme Court granted permission to appeal because of the important point of principle raised by the appeal, on terms that, whatever the result, the grandparents' entitlement to recover their costs as a result of the order of the Court of Appeal would not be disturbed.

Lord Phillips said that it was not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. A local authority has a duty to investigate reports that a child has been subjected to significant harm and, where there are reasonable grounds for believing that they may be well founded, to instigate care proceedings. In this respect the role of the local authority has much in common with that of a prosecuting authority and it is for the court to determine where the truth lies. There was no valid basis for restricting the approach of the Court of Appeal in this case to findings of fact in a split hearing and the effect on the resources of local authorities would be significant.

After the judgment had been delivered, Ian Anderson, Head of Legal and Democratic Services, Hull City Council said:

"The Supreme Court has made clear that it is inappropriate to expect a local authority to make good any deficiency in the provision of legal aid, in relation to a party to proceedings brought by a local authority to safeguard the welfare of children.  This decision establishes that where allegations are made by a local authority in such proceedings, which are not ultimately proven, and it was reasonable that those allegations be investigated by a court, justice does not demand that the local authority should be responsible for the legal costs of a person against whom the allegations are made who did not have the benefit of public funding.   The Council wishes to add its gratitude to that expressed by the Court to all counsel who acted in this case on a pro bono basis to resolve this important issue."

Based on the Supreme Court press summary.