RP (Appeal costs)

In proceedings concerning children, the starting point remains no order as to costs, whether at first instance or on appeal. A costs order requires unusual or exceptional circumstances, such as reprehensible conduct or a stance beyond the band of reasonableness. The appellate nature of proceedings may affect how conduct is assessed because parties know the first-instance findings and reasons, but it does not change the governing approach. Criticism of a local authority and children’s guardian which fell below expected standards did not meet that threshold where the case was complex and the assessment was affected by first-instance pressures and appellate hindsight. The application for costs was therefore refused.

A foster carer appealed against a care order concerning a girl who had been in her care for 14 months. The Court of Appeal allowed that appeal on 31 January 2019, in the judgment reported at [2019] EWCA Civ 525. The appellant then sought an order requiring the local authority and Cafcass to pay her costs. The issue was whether criticisms made of the local authority and children’s guardian, together with their positions on the appeal, amounted to exceptional circumstances justifying a costs order in proceedings concerning a child.

1. The application for costs was refused. The court made no order as to costs.
2. The established approach in proceedings concerning children is that costs orders should generally not be made, save in unusual or exceptional circumstances. Relevant examples include reprehensible conduct or a party adopting a stance beyond the band of what is reasonable. The court relied on the principles considered in Re T [2012] UKSC 36 and Re S [2015] UKSC 20, including the welfare-focused character of child proceedings.
3. The fact that the matter is an appeal rather than a first-instance trial does not alter the governing principles. It may affect their application because the parties know the first-instance findings and reasons and can reconsider whether to pursue or resist an appeal. This distinction was explained by reference to EM v SW, In re M (A Child) [2009] EWCA Civ 311.
4. The court maintained its criticisms of the local authority and guardian. The local authority had failed to correct the judge’s statement that the child had to move, had not completed the appellant’s prospective-adopter assessment before the relevant hearing, and later abandoned that assessment. The guardian had made a final recommendation before seeing the local authority’s final evidence, had not filed a supplemental report explaining her change of position, and had not addressed the possibility of adoption by the appellant.
5. Those failures fell below the standard expected in care proceedings but did not amount to the conduct identified in Sutton London Borough Council v Davis (No 2) [1994] 2 FLR 569. The case was complex, attention had understandably focused on information about the children’s options in Poland, and the court and parties had given insufficient attention to the child’s placement. The appellate court also recognised the effects of hindsight and the pressures of first-instance family proceedings. The parties’ positions on the appeal did not justify a different order.

• Court of Appeal (Civil Division): Allowed the foster carer’s appeal against the care order on 31 January 2019; the judgment was reported at [2019] EWCA Civ 525. In this supplemental judgment, the court refused the subsequent costs application.
• West London Family Court: HH Judge Rowe QC made the care order from which the merits appeal was brought.