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Costs in Children Law Cases

Piggy bank iStock 000009466746XSmall 146x219Jessica Swannell looks at the effect of a recent Supreme Court decision on the liablitity of local authorities to pay a father's costs in placement orders cases.

There is no justification for making local authorities pay father’s costs in challenging placement order. This was the conclusion of the court in a case called Re S (A Child) [2015] UKSC 20 which was an Appeal by the local authority to the Supreme Court against an order that the local authority should pay the appeal costs of a successful appellant in care proceedings. The Appeal was allowed and the costs order was set aside.

The father of a young daughter successfully appealed against a placement order obtained by the local authority in relation to the daughter’s adoption. The Court of Appeal held that the first instance Court was wrong in making the placement order without first assessing the situation of the father.  The Judge also failed to articulate her reasons for the placement order.

The local authority was then ordered to pay the father’s costs of the appeal summarily assessed in the sum of £13,787.70. The reason why the Court of Appeal ordered that the local authority should pay those costs was because it had resisted the appeal and also in order not  to deter a parent from challenging decisions which impact on the most crucial of human relationships.

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The local authority appealed to the Supreme Court in relation to the costs order only.

The issue arising on this appeal is whether it was right to order costs against the authority, given the principle confirmed by the Supreme Court in re T (Care Proceedings: costs) [2012] UKSC 36 that in general, local authorities should not be ordered to pay costs in care proceedings.

The issues were: (i) whether there were any other circumstances, beyond the two identified in Re T, namely reprehensible behavior or an unreasonable stance, in which a costs order might be justified; and (ii) whether there was any reason to depart from the general approach in Re T in the present case.

The Supreme Court unanimously allowed the appeal by the local authority and set aside the costs order made in the Court of Appeal.  It was held that the overall responsibility is to ensure the best outcome for the child. The Supreme Court also made reference that if the best outcome for the child was to be brought up by her own biological family, there could be a potential case of hardship if the family had to bear their own costs of achieving the outcome which could have an impact on the child’s welfare.  

In the case of Re T, the only time costs may be awarded against local authorities is if there has been reprehensible behavior or an unreasonable stance in which a costs order might be justified.

It is advised that both of these circumstances are closely considered all the way throughout the care proceedings to prevent local authorities being ordered to pay costs. Furthermore, each case must be considered on its own merits as to the correct order for costs to ensure the welfare of the child.

Jessica Swannell is Costs Lawyer & Practice Manager of A&M Bacon Limited, Legal Costs Specialists.

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