Birmingham Children's Trust v K

A non-party costs order may be made against a local authority directed to prepare a section 7 report where its conduct is sufficiently reprehensible or unreasonable and the authority has a sufficiently close connection with the proceedings. Failures may include late notification that the report author cannot attend, failure to notify the court, an inadequate report and inadequate preparation for evidence. On appeal, evaluative findings and discretionary decisions should not be disturbed merely because the judgment could have been expressed more precisely. The appeal court must focus on substance, read the judgment as a whole and ask whether the decision was wrong or unjust for procedural irregularity.

The Birmingham Children’s Trust appealed from an order made by HHJ Bush in private law children proceedings requiring it to pay the mother’s and father’s costs. The order followed failures concerning a section 7 report, the report author’s non-attendance, the quality of the written and oral evidence, and the resulting adjournment of the final hearing. The local authority challenged the procedure, the finding of reprehensible behaviour and the legal approach to non-party costs. The High Court considered whether the appeal had a real prospect of success or there was another compelling reason for it to be heard.

1. Permission refused. The local authority had no real prospect of success, and the proposed appeal disclosed no compelling reason for a hearing.
2. There was no procedural unfairness. The local authority had been represented at the costs hearing. Complaints concerning the omitted statement and notification findings were either factually unfounded or immaterial.
3. The finding of reprehensible behaviour was open to HHJ Bush. The local authority failed to notify the court and the parties in good time that the section 7 report author was unavailable. The first duty of an authority directed to provide such a report is to the court, although duties are also owed to the parties.
4. The section 7 report and the preparation for oral evidence were seriously deficient. Responsibility for complying with the court’s direction lay with the local authority, which should have ensured that the report was prepared by a suitably experienced person and supported by appropriate management and legal assistance.
5. The judge’s summary of the law was sufficiently accurate. Minor slips in terminology and citation did not establish an error of law. The issue whether a section 7 reporter is sufficiently connected with proceedings for the non-party costs jurisdiction was not decided because it had not been argued below, although the authority’s connection on these facts was apparent.
6. The local authority was ordered to pay two-thirds of the mother’s costs, assessed summarily on an indemnity basis at £5,681.89.

• Family Court at Birmingham: HHJ Bush ordered the Birmingham Children’s Trust to pay the parents’ costs following findings concerning failures in the preparation and provision of a section 7 report.
• High Court (Family Division): permission to appeal was refused. The local authority was ordered to pay two-thirds of the mother’s costs on an indemnity basis.