T (Children)

In care proceedings, the ordinary practice is to make no costs order against a party, including a local authority, unless its behaviour was reprehensible or its stance unreasonable. A separate fact-finding hearing does not displace that practice or create a presumption that costs follow the event.

A local authority which reasonably places serious allegations before the court is not liable for an intervener’s costs merely because the allegations are ultimately unproved. Its statutory responsibility to investigate possible harm to children, and the competing demands on its limited resources, distinguish it from an ordinary civil litigant. Any deficiency in public funding for interveners is a matter for the legislature and should not be transferred to the authority through a costs order.

A local authority relied in care proceedings on allegations that two children had been sexually abused by their father and others, with the collusion of their grandparents. The grandparents and several other alleged participants intervened in a lengthy fact-finding hearing. The findings exonerated the grandparents, who had incurred substantial privately funded legal costs.

His Honour Judge Dowse dismissed their application for costs because the authority had acted reasonably and had not behaved reprehensibly. The Court of Appeal allowed their appeal in [2010] EWCA Civ 1585. It held that the ordinary practice against costs orders in child cases did not apply to a discrete fact-finding hearing and that the grandparents’ exoneration was of decisive importance.

The Supreme Court considered whether a local authority should pay an intervener’s reasonable costs where allegations were reasonably made in care proceedings but ultimately found to be unproved.

1. Appeal allowed. Lord Phillips delivered the judgment of the court. The established practice of making no costs order in proceedings involving children, absent reprehensible behaviour or an unreasonable stance, accords with the ends of justice. It applies to local authorities and is not displaced merely because allegations against an intervener have failed. Judge Dowse’s order was therefore sound and should not have been reversed.

2. Under Part 28 of the Family Procedure Rules 2010, the court may make such costs order as it thinks just. That discretion is not unfettered. The incorporated civil costs rules require consideration of all the circumstances, but the ordinary civil rule that costs follow the event is excluded. Family proceedings involving children have special features which commonly justify no order as to costs.

3. A fact-finding hearing is part of the whole process of determining care proceedings. As explained in In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, splitting a hearing is a case-management decision. It may make discrete costs easier to identify, but it cannot change the governing principles. The compartmentalised approach taken in In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350 was not followed.

4. A local authority investigating possible serious harm to a child is not equivalent to an ordinary civil litigant advancing a private claim. The Children Act 1989 requires the authority to investigate and, where reasonable grounds exist, to initiate care proceedings. The court determines whether the allegations are proved. Justice does not require the authority to pay an exonerated person’s costs when the allegations were reasonably placed before the court. The competing demands on limited local-authority resources are also legitimate considerations.

5. The question whether a public authority should bear an opponent’s costs is distinct from whether representation should receive public funding. Access to justice and article 6 requirements operate when proceedings begin, rather than retrospectively according to the result. Any deficiency in legal-aid provision for interveners is for the legislature and cannot properly be remedied from a local authority’s children’s services budget.

6. Judge Dowse’s costs order was restored. In accordance with the terms on which permission to appeal had been granted, the restored order could not be used to deprive the grandparents of the costs awarded to them by the Court of Appeal.

1. United Kingdom Supreme Court: The Council’s appeal was allowed and Judge Dowse’s order restored. The grandparents nevertheless retained the costs awarded to them below because permission to appeal had been granted on that condition: T (Children) [2012] UKSC 36.

2. Court of Appeal: The grandparents’ appeal was allowed. The court held that the ordinary practice against costs orders in child proceedings did not govern the discrete fact-finding hearing and treated their exoneration as decisive: [2010] EWCA Civ 1585.

3. County Court: His Honour Judge Dowse dismissed the grandparents’ application for costs because the local authority’s conduct was neither reprehensible nor unreasonable.