High Court judge orders council to pay £100k over care proceedings

An unnamed local authority has been ordered to pay £100,000 towards the public funding costs of parents involved in care proceedings that were subsequently withdrawn, it has emerged.

In X, Y and Z (Children), Re [2010] EWHC B12 (Fam), a High Court judge explained that in a case where “within the last six months the local authority has twice sought to persuade the court to authorise the immediate interim removal of the children from the care of their parents, it now seeks leave to withdraw the proceedings in their entirety.”

The council had contended that it was a case of fabricated or induced illness (FII) in that the parents had subjected their three children to unnecessary hospital admissions, medical examinations and tests and that this had been achieved by them lying about or exaggerating the children’s symptoms.

The case was listed for a 20-day finding of fact hearing in January 2010. However, the first week was taken up by discussions between counsel for the local authority and senior local authority managers and by discussions between counsel.

The local authority then applied for leave to withdraw the proceedings in relation to two of the children. It continued proceedings concerning the third child for a few days longer, only to seek to withdraw those as well.

The proceedings are likely to have cost the Legal Services Commission in the region of £398,000, the judge added, while the local authority’s own legal costs are “no doubt also substantial”. All the parties were represented by leading and junior counsel.

The judge set out the complex history of the case and acknowledged that costs orders against local authorities are infrequently made “and for good reason”. But he said he was satisfied that it was appropriate to make a contribution towards the parents’ public funding costs.

In particular, the judge said, the local authority:

• “Had abandoned all of the matters relied upon in its original threshold document on the basis of a belated acknowledgement that there is little or no material which is capable of satisfying the threshold criteria
• Upon receipt of the reports of Mrs G K and Ms J (the independent social worker and the children’s guardian respectively), failed to convene a strategy discussion or otherwise take steps to obtain and evaluate information relating to the children’s extensive involvement with health services in order to determine whether there is evidence that this is a case of FII and, if so, whether steps needed to be taken to safeguard the children
• In seeking to remove the children into foster care, fell below accepted standards of best practice in the decision-making process which led to its application to the court for interim care orders in August 2009, and
• Failed to raise with Dr M (a consultant paediatrician) the shortcomings in his report, instead relying upon that report completely and uncritically in deciding to amend its threshold document to raise allegations of FII, in drafting those amendments and in proceeding with those allegations up to the fifth day of this fact-finding hearing.”

The judge ruled that the local authority’s conduct of the case fell outside the band of what is reasonable, and ordered it to pay £50,000 towards the costs of each parent.

However, he added that he echoed the views of Charles J in Re R (Care: Disclosure: Nature of Proceedings), who said: “I would also express the view, which can be conveyed, for what it is worth, to the Legal Services Commission that this is an issue between publicly funded bodies.

“They may, as a matter of discretion, wish to take that into account in deciding whether or not they enforce this order having regard to the circumstances of the case and the way in which legal aid is granted in family proceedings.”

The judge also said there were some important lessons to be learned from the case, including that an allegation of FII is a very serious allegation to make against a parent “and one that should not be made lightly”.

He said: “Before making an allegation of FII a local authority should be rigorous in satisfying itself that the evidence available, if accepted by the court, is capable of establishing to the requisite standard that there has in fact been fabricated or induced illness.”