W (A Child), Re

In children proceedings, the usual rule remains that each party bears their own costs. A costs order requires unusual circumstances. On an appeal, the governing principle does not change, but the parties must reassess the reasonableness of advancing or resisting the appeal once the judge’s findings and reasons are known.

A costs contribution may be justified where a local authority has presented an uneven case or failed to recognise material defects in the judgment, and where unrecovered costs incurred by the family carer would risk the child’s welfare. The question remains fact-sensitive.

The great-aunt had successfully appealed against care and placement orders made in respect of J. The Court of Appeal set aside those orders and remitted the case. Mr Justice Keehan subsequently ordered J’s placement with the great-aunt under a transitional plan.

This was the great-aunt’s application for her appeal costs. She relied on the local authority’s uneven presentation of the first-instance case, its failure to reassess its position after permission to appeal, and the financial effect of the litigation and home renovations undertaken for J’s proposed placement. The central issue was whether those matters constituted unusual circumstances warranting a costs contribution.

1. The application was granted. The local authority was ordered to contribute £12,000 inclusive of VAT towards the great-aunt’s costs.

2. The starting point in children cases is that costs orders are made only in unusual circumstances. The court applied the approach in Re T (children) [2012] UKSC 36 and Re S [2015] UKSC 20. Reprehensible conduct or a stance beyond the range of reasonable litigation conduct may satisfy that threshold.

3. The fact that the proceedings were appellate did not alter the governing principle. It was nevertheless material that, once the first-instance findings and reasons were available, the parties could take stock of whether to advance or resist the appeal. The deficiencies in the judgment and the basis of the appeal were apparent throughout. The local authority should have recognised, at least to a materially greater extent, that the judgment could not justify the adoption order.

4. The local authority had failed to present an even-handed case at first instance. Its procedural complaints about the appellant did not displace that conclusion. The court also attached weight to the substantial financial impact on the great-aunt, who had incurred costs in good faith in adapting her home and in pursuing the appeal so that J could live within his family.

5. The court distinguished the fact-sensitive outcome in LR v (1) a local authority (2) a mother (3) a father (4) RP (by her children’s guardian) [2019] EWCA Civ 680. Taken together, the local authority’s failures and the potential hardship to J’s family carer made this an unusual case.

• Court of Appeal (Civil Division): In this costs judgment, the court ordered the local authority to contribute £12,000 inclusive of VAT towards the great-aunt’s costs: [2020] EWCA Civ 77.

• Court of Appeal (Civil Division): On 18 November 2019, the court allowed the great-aunt’s substantive appeal, set aside the care and placement orders, and remitted the matter. No citation was stated.

• High Court: On remittal, Mr Justice Keehan ordered that J be placed with the great-aunt forthwith under a transitional plan, on 12 November 2019 as stated in the judgment.

• Birmingham Civil Justice Centre: Her Honour Judge Bush made care and placement orders on 3 May 2019. No citation was stated.