A Local Authority v A Mother & Ors

In children proceedings, the usual position is that there will be no order for costs. That is not an inflexible rule. The court may order a local authority to contribute to the costs of an unrepresented relative where the circumstances make that just, even without reprehensible or unreasonable conduct and without a distinct fact-finding issue. Relevant considerations include the child’s welfare, the relative’s importance to the outcome, the need for legal representation, equality of arms, risks to the placement, the local authority’s approach and the trajectory of the proceedings. Such orders remain exceptional.

At the end of longstanding care proceedings, an aunt adopted the child whom she had cared for under an interim care order. The aunt, narrowly ineligible for legal aid and unable to fund representation, applied for a contribution to the costs incurred during the later stages of the proceedings. The local authority had initially opposed family placement, remained uncertain about the aunt’s permanent role until shortly before the final hearing, and offered only £2,000 after approving her as an adopter. The central issue was whether the court had power to make a costs order, and whether the circumstances justified departing from the usual no-order position.

1. Costs jurisdiction. Under the Family Proceedings Rules 2010, the court may make such order as to costs as it thinks just. The court must consider all the circumstances, including conduct, and the general rule that the unsuccessful party pays does not apply in family proceedings. Article 6 ECHR also requires effective access to the court.
2. The usual position in welfare proceedings is that there will be no order for costs. The recognised exceptions are not exhaustive. An order is not confined to cases involving reprehensible or unreasonable conduct, or a distinct issue such as a fact-finding hearing. The applicant must nevertheless establish unusual or exceptional circumstances.
3. This was an exceptional case. The aunt was essential to the child’s welfare and needed to be a party with legal representation. Her representation protected the placement from the risk of crisis and shortened the final hearing. The local authority’s prolonged uncertainty about the placement contributed to the need for representation, although its conduct was neither reprehensible nor unreasonable.
4. The court rejected the argument that a costs order would make a local authority a general secondary funding authority or create an uncontrolled precedent. Orders would remain exceptional and would depend on the configuration and merits of each case. The aunt’s roles as foster carer, litigant and prospective permanent carer were closely interlinked, so it would generally be artificial to separate related costs.
5. The local authority was ordered to pay one half of the aunt’s costs from 5 September 2011, including half the costs of the costs application, on the standard basis.