In the matter of S (A Child)

Proceedings about children, including care proceedings and related appeals, do not attract the ordinary civil rule that the unsuccessful party pays the successful party’s costs. Costs orders should be unusual. They may be justified by reprehensible conduct or an unreasonable litigation stance, but those categories are not exhaustive.

An appeal changes the application, rather than the content, of those principles because the parties then know the findings and reasons and can reconsider their positions. Public funding is irrelevant to whether an order is just, and pro bono representation creates no special exception. A local authority is neither better nor worse placed than a private party. The court also indicated that an order may be appropriate where requiring the parent caring for the child to bear the costs would cause real hardship and put the child’s welfare at risk.

A county court made a placement order authorising the adoption of a child without her father’s consent. The father successfully appealed because the judge had proceeded without a further assessment of his ability to care for the child in Norway and had not adequately explained the decision.

The Court of Appeal, in [2014] EWCA Civ 135, ordered the local authority to pay the father’s appeal costs of £13,787.70. It accepted that the authority had not behaved reprehensibly at first instance, but considered its resistance to the appeal despite deficiencies in the judgment relevant. The local authority appealed only against the costs order. The central issue was whether the established approach to costs in children’s proceedings applied differently to a successful appeal by a parent in care proceedings.

1. Disposition. The local authority’s appeal was allowed unanimously and the Court of Appeal’s costs order was set aside. The authority had undertaken not to recover the sum already paid to the father.

2. Section 51 of the Senior Courts Act 1981 confers a discretion as to costs, subject to rules of court. The ordinary rule that the unsuccessful party pays does not apply to first-instance children’s proceedings or family appeals. The factors concerning the parties’ conduct under rule 44.2(4) and (5) of the Civil Procedure Rules nevertheless apply.

3. The general approach is that costs orders in children’s proceedings should be unusual. Such proceedings are partly inquisitorial and the child’s welfare is paramount under section 1(1) of the Children Act 1989. Costs orders may deter proper participation, impede future co-operation and reduce resources available for the child or other children. Local authorities have finite children’s services budgets and should be neither worse nor better placed than private parties.

4. In re T (Care Proceedings: Costs) [2012] UKSC 36 was applied and explained. Its general approach was not confined to first-instance fact-finding proceedings or to interveners. Reprehensible conduct and a stance outside the bounds of reasonableness are established grounds for an order, but paragraph 44 of that judgment did not create an exhaustive statutory-style rule. A further order may be justified where requiring the parent with whom the child is to live to bear the costs would cause real hardship and thereby put the child’s welfare at risk.

5. An appeal does not alter the governing principles. It may alter their application because the factual findings and the judge’s reasons are known, allowing parties to take stock and negotiate. Conduct reasonable at trial may therefore become unreasonable on appeal. Whether a party is publicly funded is irrelevant to the justice of a costs order. Pro bono representation likewise creates no distinct exception, consistently with section 194(4) of the Legal Services Act 2007.

6. The authority had neither behaved reprehensibly nor acted unreasonably in resisting the father’s appeal. Although the first-instance judgment lacked the detailed option analysis expected after In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, the authority’s position remained supported by the children’s guardian and professional evidence. No case was advanced that the father’s costs would cause hardship threatening the child’s welfare. None of the recognised exceptions therefore applied.

1. United Kingdom Supreme Court: The local authority’s appeal was allowed unanimously and the costs order made by the Court of Appeal was set aside: [2015] UKSC 20. The authority had undertaken not to recover the sum already paid.
2. Court of Appeal: The father’s substantive appeal against the placement order was allowed because further assessment was required and the first-instance reasons were inadequate. The court ordered the local authority to pay his appeal costs: [2014] EWCA Civ 135, [2015] 1 FLR 130.
3. County court: Her Honour Judge Karp made a placement order authorising the child’s placement for adoption without the father’s consent.