Kent County Council v A mother, F and X, Y and Z (IR Intervener) (Costs in Care Proceedings)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Baker |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] EWHC 1267 (Fam) |
| Date | 18 May 2011 |
| Court | Family Division |
| Docket Number | Case No: ME09C00100 |
[2011] EWHC 1267 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Baker
Case No: ME09C00100
and
and
and
Anthony Kirk QC and Brenda Morris (instructed by Kent County Council Legal and Democratic Services) for the Applicant
Sandria Murkin (instructed by Gill Turner Tucker) for the 1 st Respondent
Isabelle Watson (instructed by Clarke Keirnan) for the 2 nd Respondent
Alison Ball QC and Margo Boye (instructed by Davis Simmonds and Donaghey) for the 3rd Respondent
Jo Delahunty QC and Christopher Poole (instructed by Messrs Reeves & Co) for the Intervenor
Hearing dates: 8th April 2011
This judgment is being handed down in private on 18 May 2011. It consists of 15 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Following my judgment delivered on 3rd March 2011 at the conclusion of the fact-finding hearing in these care proceedings concerning three children X, Y and Z, applications were made on behalf of the five Respondents – namely, (1) the mother as First Respondent, (2) F, the father of Z and Second Respondent, and (3) the three children themselves through their guardian – and the Intervenor, the mother's current partner IR, for an order for costs against the local authority, Kent County Council. I directed that this issue should be argued before me at a further hearing listed for half a day, preceded by the submission of written skeleton arguments and supporting documentation.
The hearing took place on the afternoon of 8th April 2011. The documentation submitted consisted of (1) a joint skeleton argument on behalf of the five Respondents; (2) a further document filed on behalf of the Respondents entitled "Appendix 1 – Impact on Costs of Local Authority's Failures", supported by a further joint document entitled "Appendix A – Chronology Chart"; (3) a document filed on behalf of the mother entitled "Appendix 2 – Chronology/Summary Outline", with 91 pages of supporting documents; (4) separate costs schedules filed by the Respondents' three respective legal teams; (5) a document headed "The Application" (in reality, a full written argument) prepared on behalf of the Intervenor IR; (6) a document entitled "Schedules of Net Costs Claimed by [IR]"; (7) a bundle of authorities compiled by counsel for IR, and (8) submissions on matters of costs filed on behalf of the local authority. The further documentation exceeded four hundred pages in total.
It is unnecessary to set out again the background to the case, or the long and complex history of the proceedings, which are recorded in full detail in the judgment delivered on 3rd March and reported under the neutral citation number [2011] EWHC 402 (Fam). This decision as to costs follows on from that judgment and, if reported, should, insofar as possible, be printed immediately after it.
THE LAW AS TO COSTS IN CARE PROCEEDINGS
The rules governing costs in family proceedings, as defined by s.32 of the Matrimonial and Family Proceedings Act 1984 so as to include proceedings under Part IV of the Children Act 1989 such as these, are, since 6th April 2011, found in Part 28 of the Family Procedure Rules 2010. These substantially replicate the old provisions in rule 10.27 of the Family Proceedings Rules 1991, save that (a) all rules now have to be applied having regard to the overriding objective set out in Part 1 of the 2010 Rules, and (b) rule 28.1 contains an express provision that "the court may at any time make such order as to costs as it thinks just". For my part, I do not consider that these additions represent any significant change. The substance of the new Part 28, as of the old rule 10.27, is to apply the costs provisions in Parts 43, 44, 47 and 48 of the Civil Procedure Rules 1998 with certain exceptions. Of these, the most important is the exclusion of rule 44.3(2) which provides that "if the court decides to make an order about costs, (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but (b) the court may make a different order".
Thus, in the vast majority of cases under the Children Act 1989, the court elects to make no order as to costs. The rationale for this has been explained in a number of decided authorities, notably in Sutton London Borough Council v Davis [1994] 2 FLR 569 by Wilson J. (as he then was) at p570H:
"Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party …. But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable."
It is therefore well established that costs orders may be made in children cases when the conduct of a party has been reprehensible or unreasonable. There are a number of reported decisions in which costs have been awarded against a local authority where its conduct has been held to fall outside the band of what is reasonable. The most oftcited, in which a local authority's unreasonable failure to comply with its obligations as to disclosure led to an order for costs, is Re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 770. A more recent example is the decision of HH Judge Clifford Bellamy (sitting as a judge of the Family Division) in Re X, Y and Z (Children) [2010] EWHC 812. It is important to emphasise, however, that these are exceptional cases to the general proposition in children's cases that there should ordinarily be no order as to costs.
In Re J (Costs of Fact Finding Hearing) [2009] EWCA Civ 1350, [2010] 1 FLR 1893, the Court of Appeal (Ward and Wilson LJJ) suggested that the proposition identified in the Sutton case did not apply to the costs of a fact-finding hearing. Re J concerned a contact application in which the mother had raised allegations of domestic violence which were considered and substantially upheld at a preliminary fact-finding hearing. The Court of Appeal allowed the mother's appeal against the district judge's dismissal of her application for costs, and in delivering the judgment of the Court, Wilson LJ said (at paragraph 17):
"The order for a bespoke fact-finding hearing was surely to consign the determination of the mother's allegations into a separate compartment of the court's determination of the father's application for an order for contact …. [T]he effect of the direction for a separate fact-finding hearing was that the costs incurred by the mother in relation to that hearing can confidently be seen to be wholly referable to her allegations against the father. There was, in that sense, a ring fence around that hearing and thus around the costs referable to it. Those costs did not relate to the paradigm situation to which the general proposition in favour of no order as to costs applies."
At paragraph 19 of his judgment, however, Wilson LJ added:
"I am well aware that, in most disputed cases in relation to children, whether in private or in public law, parties justify their proposals for the future arrangements for the child by reference, at any rate in part, to past events, of which another party or other parties will often present a different version. Thus, to a greater or lesser extent, issues of historical fact arise, in probably the majority of these proceedings, I would be concerned if our exercise of discretion in relation to the mother's costs in this case today were to be taken as an indication that it was appropriate in the vast run of these cases to make an order for costs in whole or in part by reference to the court's determination of issues of historical fact."
In Re T (A Child) [2010] EWCA Civ 1585, however, the Court of Appeal (Wilson and Munby LJJ and Coleridge J) took a step further. That case concerned lengthy care proceedings involving allegations of cross-generational sexual abuse to which the paternal grandparents of the subject children were joined as alleged perpetrators. As they did not qualify for public funding, the grandparents were obliged to borrow over £50,000 to pay for legal representation. At the conclusion of the fact-finding hearing, in which they were completely exonerated, their application for an order for costs against the local authority was refused and they appealed to the Court of Appeal.
In giving the lead judgment, Wilson LJ noted (at paragraph 8) that
"[i]t was and is common ground that it was appropriate for the local authority to invite the court to determine the allegations against the grandparents, and that … the way in which the local authority conducted themselves during that hearing cannot be criticised."
However, he concluded...
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