Re Z (Disclosure to Social Work England: Costs)

In family proceedings, the court has a broad discretion to make such costs order as it considers just, subject to the applicable provisions of the Family Procedure Rules 2010 and Civil Procedure Rules 1998. Costs orders against parents in children proceedings remain rare, particularly where the unsuccessful parent acted reasonably and had a proper interest in the litigation.

A public regulatory body may, however, be ordered to pay costs where its unreasonable inaction caused another party to undertake litigation that the regulator should have initiated. Its public status and role as an intervener do not provide automatic protection from a costs order. The court must balance unreasonable pre-litigation conduct against helpful participation in the proceedings.

The judgment concerned the mother’s application for costs following her successful appeal against HHJ Ahmed’s refusal to disclose the transcript of his fact-finding judgment to Social Work England (SWE), the regulator responsible for social workers’ fitness to practise.

The mother sought costs against SWE and the father. She argued that SWE should have challenged the refusal of disclosure itself and that its failure to do so forced her to bring the appeal. SWE argued that it had initially lacked sufficient information, had assisted the court as an intervener, and should not be exposed to costs because of its public regulatory role. The father opposed the application and relied on his financial circumstances.

The issues were whether either respondent had acted unreasonably and, if so, what costs order was just.

1. The application for costs against the father was refused. Although he was unsuccessful, his opposition to the appeal was reasonable. He had a proper interest in the disclosure issue because it affected his future career, income and ability to support the child. His participation also ensured that the court heard both sides of the argument.

2. SWE’s conduct before the appeal was unreasonable. As the original applicant for disclosure, it should have sought reasons for the refusal, considered whether to apply under rule 4.3(5) of the Family Procedure Rules 2010 to set aside the order, and obtained advice on any appeal. Its failure to take those steps prompted the mother to bring an appeal which SWE should have brought.

3. The court rejected SWE’s arguments that a costs order would create a chilling effect for interveners or constitute an inappropriate use of public funds. The circumstances were unusual, and a regulatory body acting reasonably in litigation need have no such concern. Public status does not exempt a body from costs consequences where its conduct was unreasonable.

4. The court nevertheless took account of SWE’s helpful and supportive participation once it became an intervener. The mother also chose to continue participating after receiving SWE’s supportive skeleton argument. The appropriate order was therefore that SWE pay two-thirds of the mother’s recoverable costs.

5. SWE was ordered to pay £7,010.32 to the mother within 28 days. The amount was calculated by reference to costs of £10,515.48, after deducting the cost of preparing and lodging bundles.

The judgment determined the consequential costs issue following the mother’s successful appeal against HHJ Ahmed’s refusal to disclose the fact-finding judgment to Social Work England. The disclosure decision was remade by the High Court rather than remitted.