JUDGMENT
T (Children)
before
Lord Phillips, President
Lady Hale
Lord Mance
Lord Dyson
Lord Carnwath
JUDGMENT GIVEN ON
25 July 2012
Heard on 25 June 2012
Appellant Respondent
Janet Bazley QC Simon Hirst
Elizabeth Shaw
Sally Stone
(Instructed by Hull City
Council Legal Section)
(Instructed by Sandersons
Solicitors)
Intervener (Children and
Family Court Advisory
and Support Service)
Intervener (The
Grandparents’
Association)
Teertha Gupta QC Charles Hale
Dorothea Gartland Rebecca Foulkes
(Instructed by CAFCASS
Legal Services)
(Instructed by Freemans
Solicitors)
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LORD PHILLIPS, DELIVERING THE JUDGMENT OF THE COURT
Introduction
1. It is rare for the Supreme Court to entertain an appeal that relates
exclusively to costs, but this appeal raises an important issue of principle in
relation to the liability of a local authority to pay the costs of a party to care
proceedings.
2. The proceedings related to two children, whose parents were separated. The
children made allegations of sexual abuse by their father and six other men in
which the father’s parents (“the grandparents”) had colluded. These allegations
were included by the appellant (“the Council”) in the schedule of matters relied
upon in the care proceedings as meeting the threshold criteria for a care order
under section 31(2) of the Children Act 1989. The grandparents were joined as
interveners, as were five of the six men. The judge conducted a discrete factfinding hearing which occupied a total of five and a half weeks between February
and December 2009. The lengthy findings that he then made exonerated the
grandparents and five of the other six interveners.
3. Four of the five men who intervened qualified for legal aid (the fifth
represented himself), but the grandparents’ relatively modest income disentitled
them from this. The grandfather was aged 67. He is a retired fireman. The
grandmother was aged 63 and worked, as she still does, as a part time bookkeeper.
His pension and her earnings together amount to about £25,000 a year. The
grandparents borrowed £55,000 from a building society, of which they spent
£52,000 on legal advice and representation at the hearing. They cannot hope to pay
this off in less than 15 years. In these circumstances the grandparents applied for
an order that the Council pay their costs.
4. It was and is common ground that the Council could not be criticised for
advancing in the care proceedings the allegations made against the grandparents.
The judge, His Honour Judge Dowse, summarised the basis of their application for
costs as based “on the apparently inequitable fact that they have largely succeeded
in defending the allegations made against them but must bear their own costs”.
The judge dismissed their application. He did so on the basis that it was not usual
to order costs in a child case against a party unless that party’s conduct has been
reprehensible or its stance unreasonable. In support of that proposition the judge
cited authorities that included the judgments of Wilson J in Sutton London
Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J
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(Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.
The judge expressed the view that it was unacceptable that more and more people
in the position of the grandparents were faced with “potentially life-changing
allegations” without being able to gain some financial assistance from the State.
5. The grandparents appealed to the Court of Appeal, consisting of Wilson and
Munby LJJ and Coleridge J. The appeal was allowed: [2010] EWCA Civ 1585.
Wilson LJ gave the leading judgment. He held that Judge Dowse had failed to
appreciate the true purport of his judgment in In re J, which was favourable rather
than adverse to the grandparents’ application for costs.
6. Permission to appeal to this Court was given on terms that, whatever the
result, the grandparents’ entitlement to recover their costs from the Council would
not be disturbed. Permission to intervene was granted to the Children and Family
Court Advisory and Support Service (“CAFCASS”) and to the Grandparents’
Association. It is a remarkable fact, and ironic in an appeal about costs, that all
counsel are appearing pro bono. We would like to express our gratitude for the
assistance that they have given.
The Family Procedure Rules 2010
7. On 6 April 2011 the Family Procedure Rules 2010 (SI 2010/2955) (“FPR”)
came into force. They apply to family proceedings in the High Court, County
Courts and Magistrates’ Courts. Part 28 deals with costs. It is common ground that
Part 28 of FPR consolidates the previous law relating to costs, including the
relevant provisions of the Family Proceedings Rules 1991 (SI 1991/1247) and that
it does not change the law in relation to costs that is applicable to this appeal. In
these circumstances it is sensible to consider the issues raised by this appeal within
the context of those Rules.
8. FPR 1.2, which is new, requires the court to give effect to the overriding
objective, which is defined in FPR 1.1, which provides:
“1.1 The overriding objective
(1) These rules are a new procedural code with the
overriding objective of enabling the court to deal
with cases justly, having regard to any welfare
issues involved.
(2) Dealing with a case justly includes, so far as is
practicable—
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(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are
proportionate to the nature, importance and complexity
of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court’s
resources, while taking into account the need to allot
resources to other cases.”
9. FPR 28.3 makes special provision for costs in financial remedy
proceedings. Paragraph (5) provides that the general rule in financial remedy
proceedings is that the court will not make an order requiring one party to pay the
costs of another party. This is subject to paragraph (6) which permits the court to
make such an order when it considers it appropriate to do so because of the
conduct of a party in relation to the proceedings. Paragraph (5) is a particular
example of the departure in family proceedings from the general rule applicable in
civil proceedings that “the unsuccessful party will be ordered to pay the costs of
the successful party”: CPR 44.3(2)(a).
10. FPR 28.1 provides that “The court may at any time make such order as to
costs as it thinks just”. This is not an unfettered discretion, for FPR 28.2 makes
applicable to family proceedings, other than financial remedy proceedings, the
majority of the rules in relation to costs of the CPR. The most significant of the
rules excluded is the general rule that costs follow the event, quoted above in CPR
44.3(2). In the context of this appeal, the most relevant of the rules that are
applicable are included in the following provisions of CPR 44.3:
“(4) In deciding what order (if any) to make about costs, the court
must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of his case, even if he
has not been wholly successful; and
(c) any payment into court or admissible offer to settle made by
a party which is drawn to the court’s attention, and which is not
an offer to which costs consequences under Part 36 apply.
(5) The conduct of the parties includes –
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(a) conduct before, as well as during, the proceedings and in
particular the extent to which the parties followed the Practice
Direction (Pre-Action Conduct) or any relevant pre-action
protocol;
(b) whether it was reasonable for a party to raise, pursue or
contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his
case or a particular allegation or issue; and
(d) whether a claimant who has succeeded in his claim, in
whole or in part, exaggerated his claim.”
11. (4)(b) is relevant in relation to a regime where the general rule in (2)(a)
applies. For this reason we do not see that it has any direct relevance to family
proceedings. (4)(c) can have no relevance to public law proceedings and can thus
be disregarded in the present case. The other rules are simply examples of
circumstances that will be relevant when considering the result that justice requires
in the individual case. In family proceedings, however, there are usually special
considerations that militate against the approach that is appropriate in other kinds
of adversarial civil litigation. This is particularly true where the interests of a child
are at stake. This explains why it is common in family proceedings, and usual in
proceedings involving a child, for no order to be made in relation to costs. The
reasons for departing from the principle that costs normally follow the event differ,
however, depending upon the nature of the family proceedings. On this appeal it is
necessary to identify the policy considerations that should inform the approach to
costs that is required in the interests of justice in care proceedings.
Reasons for making no order for costs in family proceedings that are not relevant
in the present case
12. The Court has been referred to a number of authorities dealing with costs in
family proceedings. In order to see the wood from the trees it is helpful to remove
from the forest the timber that does not bear on the issues raised by this appeal.
The following reasons for not awarding costs in family proceedings are not
relevant:
i) In ancillary relief proceedings each party’s liability for costs will be
taken into consideration when making the substantive award. This
approach has the advantage of discouraging the parties from running
up unnecessary costs – see Baker v Rowe [2009] EWCA Civ 1162;
[2010] 1 FCR 413, paras 20 to 23 per Wilson LJ.
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ii) Orders for costs between the parties will diminish the funds available
to meet the needs of the family – see Gojkovic v Gojkovic [1992]
Fam 40, 57, per Butler-Sloss LJ and R v R (Costs: Child Case)
[1997] 2 FLR 95, 97, per Hale J. (This could, of course, be a good
reason not to award costs against a family member in care
proceedings).
iii) It is undesirable to award costs where this will exacerbate feelings
between two parents, or more generally between relations, to the
ultimate detriment of the child: see B (M) v B (R) (Note) [1968] 1
WLR 1182, 1185 per Willmer LJ; Sutton London Borough Council v
Davis (No 2) [1994] 1 WLR 1317, 1319 per Wilson J. (Once again
this could be a good reason not to award costs against a family
member).
Unreasonable conduct
13. CPR 44.3(5) is as relevant in care cases as it is in other kinds of family
proceedings. Where a local authority has caused costs to be incurred by acting in a
way which was unreasonable justice may well require that the local authority pay
the costs in question. Examples of such cases include: In re R (Care: Disclosure:
Nature of Proceedings) [2002] 1 FLR 755; In re X (Emergency Protection Orders)
[2006] 2 FLR 701; Coventry City Council v X, Y and Z (Care Proceedings: Costs)
[2011] 1 FLR 1045. The principle underlying these decisions has no relevance to
the present case, for it has not been suggested that the conduct of the local
authority was in any respect unreasonable.
Precedent
14. CAFCASS have submitted that this case is the first occasion upon which a
local authority has been ordered to pay costs in public law proceedings in the
absence of any criticism of its conduct. CAFCASS is well placed to make that
submission and no case to the contrary has been cited to us. In In re M (Local
Authority’s Costs) [1995] 1 FLR 533 a local authority applied for permission to
refuse contact between two children and their parents. The magistrates refused the
application and ordered the local authority to pay the father’s costs. On appeal
Cazalet J set aside that order, holding that there should be no order as to costs.
Citing the decision of Wilson J in Sutton London Borough Council v Davis he
observed at p 541 that it would be unusual for a court to make an order for costs in
a child case where a party’s conduct had not been reprehensible or that party’s
stance had not been beyond the band of what was reasonable. He added at p 544:
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“As a matter of public policy it seems to me that where there is the
exercise of [a] nicely balanced judgment to be made by a local
authority carrying out its statutory duties, the local authority should
not feel that it is liable to be condemned in costs if, despite acting
within the band of reasonableness (to adopt the words of Wilson J),
it may form a different view to that which a court may ultimately
adopt.”
The reasoning of the Court of Appeal
15. The chain of reasoning of Wilson LJ in this case has its origin in his
decision in Sutton London Borough Council v Davis. The local authority had
refused to register a childminder, who successfully appealed to the magistrates,
who awarded costs in her favour. The local authority appealed against the costs
order. In doing so the authority urged the court to apply, by analogy, the principle
that costs are not usually ordered in child cases. Wilson J accepted that this was a
proposition applied for many years in the Family Division. He gave the following
explanation for that proposition at p 1319:
“Where the debate surrounds the future of a child, the proceedings
are partly inquisitorial and the aspiration is that in their outcome the
child is the winner and indeed the only winner. The court does not
wish the spectre of an order for costs to discourage those with a
proper interest in the child from participating in the debate. Nor does
it wish to reduce the chance of their co-operation around the future
life of the child by casting one as the successful party entitled to his
costs and another as the unsuccessful party obliged to pay them. The
proposition applies in its fullest form to proceedings between parents
and other relations; but it also applies to proceedings to which a local
authority are a party. Thus, even when a local authority’s application
for a care order is dismissed, it is unusual to order them to pay the
costs of the other parties. But the proposition is not applied where,
for example, the conduct of a party has been reprehensible or the
party’s stance has been beyond the band of what is reasonable:
Havering London Borough Council v S [1986] 1 FLR 489 and
Gojkovic v Gojkovic [1992] Fam 40, 60C-D.”
16. Wilson J then dealt with the facts. He observed that the local authority had
erred in concluding that the respondent was not fit to mind children, but held that
their stance in relation to Mrs Davis was neither reprehensible nor unreasonable.
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17. Wilson J went on to reject the analogy with care proceedings, and dismissed
the appeal. His reasons at pp 1319-1320 were as follows:
“In care proceedings the local authority and all other parties come
into court in order to assist it in choosing the programme for the
child’s future which will best serve his or her welfare. In the case of
Mrs Davis the local authority made an incorrect decision as to her
fitness. She had a right to be registered and they infringed it. Mrs
Davis afforded them the opportunity to review their decision by
lodging an objection pursuant to section 77(3) of the Children Act
1989. But they resolved that the decision should stand. In order to
establish her right to be registered, Mrs Davis had to appeal to the
magistrates’ court. The proceedings were adversarial and the local
authority lost the argument. Such were the circumstances for
application of the principle that costs should follow the event. Far
from being satisfied that the justices were plainly wrong to decide
that the local authority should pay the costs of Mrs Davis, I consider
that they were right.”
18. This judgment confirmed that it was not the normal practice to award costs
in child care cases. It contained, however, the seeds of what was to follow, for in
effect Wilson J applied the general common law rule that costs follow the event in
adversarial cases.
19. In re J (Children) [2009] EWCA Civ 1350 involved contact proceedings
between a mother and father. The district judge held a fact finding hearing to
resolve allegations of violence made by the mother and denied by the father. Most
of the mother’s allegations were held to be established and she sought the costs of
the hearing. The district judge refused her application and made no order as to
costs. The mother appealed to the county court. She invited the judge to draw a
distinction between the fact finding hearing and that part of the hearing that related
to the welfare of the children. The judge declined to do so. He held that the father
had not acted unreasonably in giving evidence in opposition to the mother and
dismissed her appeal.
20. On appeal to the Court of Appeal, Wilson LJ, giving the only reasoned
judgment, held that the circuit judge had been wrong not to adopt a
“compartmentalised” approach. He held at para 17:
“The order for a bespoke fact-finding hearing was surely to consign
the determination of the mother’s allegations into a separate
compartment of the court’s determination of the father’s application
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for an order for contact. It went almost without saying, although the
circuit judge chose to say it, that the optimum outcome of the contact
application could be determined only by reference to the findings
made at the fact-finding hearing; but the effect of the direction for a
separate fact-finding hearing was that the costs incurred by the
mother in relation to that hearing can confidently be seen to be
wholly referable to her allegations against the father. There was, in
that sense, a ring fence around that hearing and thus around the costs
referable to it. Those costs did not relate to the paradigm situation to
which the general proposition in favour of no order as to costs
applies.”
21. Wilson LJ went on to hold that the husband had not acted irrationally and
that a proper exercise of the court’s discretion did not depend upon why he chose
to deny allegations that he must have known were true. He remarked that issues of
fact arose in most disputed cases in relation to children and that his decision in the
instant case should not be taken as an indication that it was appropriate to make an
order for costs in the vast run of such cases. He held, however, that the mother’s
case fell into “a separate and unusual category”. It was devoted exclusively to
consideration of the serious and relevant allegations made by the mother against
the father, most of which were established. In these circumstances he held that the
proper order was for the father to pay two thirds of the mother’s costs of the
hearing.
22. This decision could have been justified on the ground that the costs in
question had been caused by the father’s unreasonable refusal to admit the facts
that were ultimately proved against him, but Wilson LJ’s reasoning appears to
have been simply that a party who makes allegations of fact against another party
that prove to be unfounded, or who challenges allegations of fact that prove to be
well founded, should be liable for the costs of resolving those issues, whether his
conduct was reasonable or not.
23. We turn to the decision of Wilson LJ in the present case. He held that Judge
Dowse had erred in relying upon In re J to justify applying the general proposition
that no order for costs should be made in a child case. He had failed to appreciate
that the true purport of In re J was that the general proposition should not be
applied in relation to the costs of a fact-finding hearing. Wilson LJ rejected the
submission made on behalf of the Council that the general proposition against
awarding costs in care proceedings applied. He held at para 18:
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“I consider that, where in care proceedings a local authority raise,
however appropriately, very serious factual allegations against a
parent or other party and at the end of a fact-finding hearing the
judge concludes that they have not established them, the general
proposition is not in play.”
In that situation he held that the judge should approach the question of costs with a
clean sheet.
24. As to the approach that the judge should then follow, Wilson LJ cited at
para 20 the statement that he had made in ancillary relief proceedings that were not
concerned with a child, Baker v Rowe [2010] 1 FCR 413, para 25:
“Even where the judge starts with a clean sheet, the fact that one
party has been unsuccessful, and must therefore usually be regarded
as responsible for the generation of the successful party’s costs, will
often properly count as the decisive factor in the exercise of the
judge’s discretion.”
25. He added at para 21:
“In my view the facts that the grandparents were faced with
allegations of the utmost severity, that accordingly it had been
reasonable for them to stretch their economy to the utmost in order to
secure for themselves a professional defence against them and that in
the event the result was an exoneration, were all matters which
should have been of great, indeed in my view of decisive,
importance to a judge who was about to write on a clean sheet.”
The relevance of a split hearing
26. Care proceedings usually involve allegations of misconduct by some
person, typically a parent who is looking after the child, but often, as in this case,
of other persons. Those against whom allegations are made are likely to wish to
challenge them. The parent’s primary concern may be not to lose care of the child.
Others may simply be concerned to clear their names. The object of the
proceedings is to reach the decision that is in the best interests of the child. The
procedure for achieving this in this jurisdiction is adversarial. The proceedings are
brought by the local authority. The parents and the child or children concerned are
made respondents. Those against whom allegations of misconduct are made may
be joined, either on their own application or at the initiative of the court, as
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interveners. Before deciding what is in the best interests of the child it is
sometimes necessary to resolve issues of fact. The court will normally require the
local authority to set out the findings of fact that it seeks to establish in order to
show that the threshold requirements for making a care order laid down by section
31(2) of the Children Act 1989 are satisfied.
27. The decision to have a split hearing of care proceedings is essentially one of
case management. It is taken by the court. The position was clearly spelt out by
Lady Hale in In re B (Children)(Care Proceedings: Standard of Proof) (CAFCASS
intervening) [2008] UKHL 35; [2009] AC 11:
“74. Care proceedings are not a two stage process. The court does
have two questions to ask. Has the threshold been crossed? If so,
what will be best for the child? But there are many cases in which a
court has two or more questions to ask in the course of a single
hearing. The same factual issues are often relevant to each question.
Or some factual disputes may be relevant to the threshold while
others are relevant to the welfare checklist: it may be clear, for
example, that a child has suffered an injury while in the care of the
mother, but whether the father or stepfather has a drink problem and
has been beating the mother up is extremely relevant to the long term
welfare of the child.
75. The purpose of splitting the hearing is not to split the two
questions which the court must answer. It is to separate out those
factual issues which are capable of swift resolution so that the
welfare professionals have a firm foundation of fact upon which to
base their assessments of family relationships and parenting ability:
see In re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773. A
fact finding hearing is merely one of the case management
possibilities contemplated by the new Public Law Outline … There
is no point in splitting the issues if the facts cannot be determined
relatively quickly, still less if it is unlikely to result in clear cut
findings to help the professionals in their work.
76. But the finding of those facts is merely part of the whole process
of trying the case. It is not a separate exercise. And once it is done
the case is part heard…”
28. The decision to have a split hearing cannot affect the principles to be
applied by the court when dealing with costs, although it may have a practical
impact on the court’s decision. The first part of a split hearing isolates specific
issues of fact. For the local authority and the court the resolution of those issues is
a stepping stone to the final decision in relation to the welfare of the child or
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children concerned. So far as interveners are concerned, their interests in the
proceedings may be restricted to the findings that are made at the first hearing.
Having a split hearing makes it much easier to identify both the manner in which
the issues of fact have been resolved and the costs reasonably incurred by the
parties in relation to the issues affecting them. It follows that, if it is correct in
principle to award costs in relation to individual issues of fact, this can much more
readily be done where there has been a split hearing. Indeed the exercise may well
be one that it is not practical, and therefore not desirable, to undertake where there
has not been a split hearing. Courts are, however, accustomed to making a special
award of costs in relation to a discrete issue that forms part of a single hearing.
This appeal raises an issue of principle in relation to that practice in the context of
care proceedings.
The issue of principle
29. The issue of principle raised by this appeal is whether in care proceedings a
local authority should be liable to pay an intervener’s reasonable costs in relation
to allegations of fact, reasonably made by the authority against the intervener,
which have been held by the court to be unfounded. The principle advanced by
Cazalet J that I have quoted at para 14 has continued to be applied in cases not
involving split hearings subsequent to the decision in In re J. Thus in Coventry
City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045 at para
192 His Honour Judge Bellamy ruled that it was still an appropriate test to apply.
In Kent County Council v Mother and others [2011] EWHC 1267 (Fam) Baker J
rejected an application for costs against a local authority by an intervener who had
been wholly exonerated in a fact finding hearing that was the first part of a split
hearing. He did so on the ground that the impetus for making the allegations
against the intervener had been that of the court not the local authority.
30. The principle applied by Cazalet J appears to mirror the approach in
proceedings under the Court of Protection Rules 2007 (SI) 2007/1744). Rule 157
provides that where proceedings concern a protected person’s welfare the general
rule is that there will be no order as to the costs of the proceedings or of that part
of the proceedings that concern his personal welfare. Rule 159 permits departure
from the general rule if the circumstances so justify. In G v E and Manchester City
Council and F [2010] EWHC 3385 (Fam) Baker J awarded costs against a local
authority that had been guilty of misconduct that he held justified departure from
the general rule. He observed at para 40:
“Parties should be free to bring personal welfare issues to the Court
of Protection without fear of a costs sanction. Local authorities and
others who carry out their work professionally have no reason to fear
that a costs order will be made. … It is only local authorities who
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break the law, or who are guilty of misconduct that falls within the
meaning of rule 159, that have reason to fear a costs order. Local
authorities who do their job properly and abide by the law have
nothing to fear. ”
These comments were endorsed on appeal by Hooper LJ: [2011] EWCA Civ 939,
at para 17.
31. The statement of principle of Wilson LJ that we have quoted at para 23
above is at odds with the principle applied by Cazalet J and the judges who have
followed him, giving rise to the issue that we have set out at para 29.
Should local authorities be protected from liability to costs in care cases?
32. The duties imposed on local authorities often require them to initiate public
law proceedings. The Court of Appeal has recently considered, in the context of
cases where claims are conceded, whether different principles apply in the case of
public authorities in proceedings in the Administrative Court. The court held that
the position should be no different for litigation in the Administrative Court from
what it is in general civil litigation – see M v Croydon London Borough Council
[2012] EWCA Civ 595. There is no general principle that protects a local authority
that has acted reasonably in the course of its duties from liability for costs in public
law proceedings. Are there special considerations that apply in family proceedings
involving children?
33. At para 12 we have identified a number of circumstances in which there is
good reason for not applying the general rule that costs follow the event to family
proceedings. They are all circumstances in which orders for costs might have
consequences that conflicted with the object of the individual proceedings. They
have no application to the position of a local authority that has caused costs to be
incurred by making allegations that have proved to be unfounded.
Submissions
34. Miss Bazley QC for the Council advanced a broad argument of policy in
support of the Council’s appeal. Local authorities have limited funds. Their costs
in relation to care proceedings are met from their Children’s Services budgets.
There are many other claims on this budget. Miss Bazley submitted that if local
authorities are to be at risk of paying the costs of those against whom they
reasonably make allegations in care proceedings, this is likely to inhibit them from
doing so, to the general detriment of children at risk. More generally, the child
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services provided would suffer as a result of this additional financial burden. Miss
Bazley produced in support of her submissions the results of what might be
described as an amateur survey carried out by junior counsel and Bar students into
the attitudes of 28 local authorities to the risk of liability to costs in care cases.
Although no objection was made to this material, we do not consider that it would
be appropriate to base conclusions upon it. No evidence is needed, however, to
support the proposition that if local authorities are to become liable to pay the costs
of those that they properly involve in care proceedings this is going to impact on
their finances and the activities to which these are directed. The Court can also
take judicial notice of the fact that local authorities are financially hard pressed, as
demonstrated by the fact that their counsel have appeared before us without
payment.
35. Miss Bazley’s submissions were supported by CAFCASS. They made the
further point that if costs are to be awarded against local authorities who fail to
make good allegations reasonably made, costs are likely to be awarded against
interveners who are held wrongfully to have challenged allegations made against
them, which is likely to result in a reluctance to intervene, to the detriment of the
conduct of care cases.
36. Although the Grandparents are no longer at risk, Mr Hirst who appeared for
them, advanced their case with vigour. He accepted that there was a general
principle that costs should not be awarded in cases involving children, but argued
that Wilson LJ had been correct not to apply this principle to fact finding hearings.
Interveners in such hearings would be concerned principally in clearing their
names. The issue was not what was in the best interests of the child but whether
the facts alleged by the local authority were true. Local authorities who failed on
that issue should, in justice, pay the interveners’ costs.
37. Mr Hale, who appeared for the Grandparents’ Association, did not put the
distinction between a single hearing and a split hearing at the forefront of his
argument and, indeed, some parts of his written case did not support that
distinction. Thus he submitted at para 47 that whether the fact finding was listed
separately or together with the welfare determination made “no discernable
difference” and at para 48 that not every fact finding hearing would lead to an
order for costs. All other factors and considerations were in play.
38. Mr Hale focussed primarily on general considerations of policy. He
submitted that there was no reason of public policy for treating local authorities
differently from other parties in public law proceedings. The suggestion that
potential liability to costs would fetter their performance of their public duties was
anecdotal and unjustified. Justice would best be served by giving the court an
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unfettered discretion in relation to costs. In a case such as the present it would be
an affront to natural justice to leave the interveners to pay their own costs.
Discussion
39. The question of whether it is just to make an award of costs against a public
authority must be distinguished from the question of whether a litigant’s costs
should be publicly funded. The former question is for the court; the latter for the
legislature. Whether a litigant’s costs should be publicly funded involves issues in
relation to access to justice and the requirements of article 6 of the European
Convention of Human Rights. Mr Hale invoked that article in support of his
argument that where allegations made against an intervener are not made out, the
local authority which advanced those allegations should be liable for the
intervener’s costs. We consider that this argument was misconceived. The
requirements to provide public funding in the interests of access to justice and of
compliance with article 6 apply at the outset of legal proceedings, not when they
are concluded, in the light of the result.
40. The Funding Code prepared by the Legal Services Commission pursuant to
section 8 of the Access to Justice Act 1999 makes provision for public funding in
proceedings under, inter alia, section 31 of the Children Act 1989. The effect of
the code is that children, parents and those with parental responsibility are granted
funding without reference to means, prospects of success or reasonableness, but
such funding is not available to interveners who are joined in such proceedings:
see volume 3C-427 of the Legal Services Commission Manual. There may be a
case for saying that this results in injustice in the case of interveners in the position
of the grandparents in the present case, but it does not follow that justice demands
that any deficiency in the provision of legal aid funding should be made up out of
the funds of the local authority responsible for the care proceedings.
41. If in principle a local authority should be liable for the costs of interveners
against whom allegations have been reasonably made that are held unfounded,
then this liability should arise whether or not the interveners are publicly funded.
In the present case, the five men who intervened and were exonerated should also
have sought and been awarded costs. The burden of costs awarded against local
authorities in such circumstances is likely to be considerable. When considering
whether it is just to make an award of costs against a local authority in
circumstances such as those of the present case it is legitimate to have regard to the
competing demands on the limited funds of the local authority.
42. In the context of care proceedings it is not right to treat a local authority as
in the same position as a civil litigant who raises an issue that is ultimately
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determined against him. The Children Act 1989 imposes duties on the local
authority in respect of the care of children. If the local authority receives
information that a child has been subjected to or is likely to be subjected to serious
harm it has a duty to investigate the report and, where there are reasonable grounds
for believing that it may be well founded, to instigate care proceedings. In this
respect the role of a local authority has much in common with the role of a
prosecuting authority in criminal proceedings. It is for the court, and not the local
authority, to decide whether the allegations are well founded. It is a serious
misfortune to be the subject of unjustified allegations in relation to misconduct to a
child, but where it is reasonable that these should be investigated by a court, justice
does not demand that the local authority responsible for placing the allegations
before the court should ultimately be responsible for the legal costs of the person
against whom the allegations are made.
43. Since the Children Act came into force, care proceedings have proceeded
on the basis that costs will not be awarded against local authorities where no
criticism can be made of the manner in which they have performed their duties
under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was
appropriate “in the vast run of these cases to make an order for costs in whole or in
part by reference to the court’s determination of issues of historical fact”. But, as I
have indicated, there is no valid basis for restricting his approach in that case to
findings in a split hearing. The principle that he applied would open the door to
successful costs applications against local authorities in respect of many
determinations of issues of historical fact. The effect on the resources of local
authorities, and the uses to which those resources are put would be significant.
44. For these reasons we have concluded that the general practice of not
awarding costs against a party, including a local authority, in the absence of
reprehensible behaviour or an unreasonable stance, is one that accords with the
ends of justice and which should not be subject to an exception in the case of split
hearings. Judge Dowse’s costs order was founded on this practice. It was sound in
principle and should not have been reversed by the Court of Appeal.
45. Accordingly we allow this appeal and restore Judge Dowse’s order, on the
basis that it shall not be relied upon to deprive the grandparents of the costs to
which the Court of Appeal held that they were entitled.
