Peterborough CC v K, L, M, N and P & ors
| Jurisdiction | England & Wales |
| Judge | POOLE J |
| Judgment Date | 23 June 2022 |
| Court | Family Court |
Children arrangements – Private proceedings – Non-party costs order – Local authority – Children moved from mother’s home to older sibling’s home – Extent of local authority involvement – Whether local authority should have issued care proceedings – Whether unfair for family members to bear costs of private proceedings.
Costs – Children arrangements – Private proceedings – Non-party costs order – Children moved from mother’s home to older sibling’s home – Extent of local authority involvement – Whether local authority should have issued care proceedings – Whether unfair for family members to bear costs of private proceedings.
The mother’s four minor children were living with her when, in February 2021, the eldest child voluntarily moved out and went to live with the mother’s adult daughter (K) and her partner (L). K and L alerted the local authority to concerns that the mother was abusing alcohol and neglecting the children. In April 2021, the authority decided to treat the children as children in need. At the end of May 2021, following a violent altercation at the mother’s home, the three younger children also left the mother’s care and moved in with K and L. The three younger children were placed on the child protection plan.
On 2 July 2021, K and her father, N (who was also the father of three of the minor children) applied for a child arrangements order providing for the children to live with K. On 19 July, the local authority sent a public law outline letter to the parents (effectively a pre-action letter) indicating that care proceedings were being considered. On 30 July, an initial public law outline meeting took place, involving the parents and K and L.
In August 2021, the judge deemed that the applicants in the private law proceedings were in fact K and L, not K and N. He made an order under s 7 of the Children Act 1989, requiring the local authority to report on future child arrangements, wider welfare needs and the outcome of the public law outline process. By this stage, the children had been living with K and L for about two and a half months, no court applications had been made by the authority and no concerns had been raised about the children’s welfare in K and L’s care.
By the time of the next hearing, in mid-October, the oldest child had been placed on a child protection plan and the local authority had decided not to issue public law proceedings. The judge directed the authority to consider whether they should apply for a care or supervision order or to take any other action in respect of the children. He also made an interim supervision order. At a hearing in mid-November, the judge noted that the authority’s response to its s 37 direction had been insufficient. He ‘expressed surprise’ that the authority had not issued public law proceedings and recited that the authority ‘needed to be involved at least to the level of a supervision order.’ The mother was now seeking the return of the children to her care, K and L were now represented and their solicitor indicated that a costs order would be sought against the authority. A further s 37 direction and a further interim supervision order were made. A short judgment was given and it was ordered that a transcript be obtained and sent to the Head of Legal Services and the Director of Children’s Services at the authority.
At a further hearing on 14 December 2021, the local authority repeated its settled position – it would not be issuing public law proceedings. It gave reasons and set out what further steps would be taken in relation to the children. The judge ordered the authority to show cause at a subsequent hearing why they should not pay the prospective and retrospective costs of K and L, and the prospective costs of the mother and the father of the three older children, an application for those costs orders having made by K and L. At this stage no evidence had been heard from witnesses, other than a short statement from a social worker, and the court had made no findings.
In January 2022, after hearing from the parties and the local authority, the judge ordered the authority to pay the parties’ costs. His test for the exercise of his discretion to make non-party costs orders was that: (a) such orders should only be made in exceptional circumstances; (b) the key consideration was the conduct of the non-party; and (c) not only should that be conduct that ‘can be criticised’ but it should also have had an impact on the legal costs of the parties in the case. The authority was required to pay the ‘assessed costs of the applicants to date and the prospective costs of the applicants and of the respondent mother, to be assessed at the conclusion of the private law proceedings.’ The judge described the authority as having been ‘instrumental’ in removing the children from the mother and considered that it should have issued public law proceedings, in which case there would have been no need for private proceedings. The judge believed that K, L and the mother, none of whom qualified for public funding, were suffering financial hardship as a result of the legal costs and needed financial support.
The local authority appealed.
Held, allowing the local authority appeal—
(1) Having regard to the authorities, the following guidance applied to non-party costs orders in private family proceedings concerning the welfare of children. It provided consistency in approach in relation to inter-party costs, wasted costs against legal representatives, and non-party costs orders in private proceedings concerning the welfare of children. Although this was a private law case, the same guidance might also apply to public law proceedings.
(i)The court had a wide discretion to make costs order including against non-parties but an application for a costs order against a non-party should be treated with caution and would be exceptional by comparison with the ordinary run of cases.
(ii)A non-party costs order should only be made if it was just to do so in all the circumstances.
(iii)In considering whether a non-party costs order was just, the court should keep in mind that in the ordinary run of family cases concerning the welfare of children, inter-party costs orders were not made.
(iv)The circumstances justifying a non-party costs order were not closed but where the conduct of a non-party was relied upon as the basis for making such an order, the non-party must have been guilty of reprehensible behaviour or unreasonable conduct in the proceedings.
(v)In considering whether the behaviour of a non-party local authority was reprehensible, or its conduct within the proceedings was unreasonable, regard must be had both to the powers entrusted to and the obligations of local authorities and the finely balanced judgments that authorities might have to make in exercising those powers and fulfilling those obligations.
(vi)The non-party should have a close connection with the proceedings such that it was fair that they were bound by the findings made in the substantive proceedings.
(vii)The circumstances to be taken into account included the financial consequences to the potential costs recipients of the acts or omissions of the non-party. If the potential costs recipients would have incurred the same financial liabilities in any event then it would be unjust to make a non-party costs order. Hence, ordinarily, the court should have regard to the amount of costs sought to be recovered from the non-party and consider whether there was a causal connection between those costs and the non-party’s acts or omissions.
(viii)A non-party might well suffer injustice if not warned that an application or costs might be made against them.
(ix)A non-party should be joined as a party for the purposes of the costs application only and be given a reasonable opportunity to attend a hearing at which the court would consider the matter further – CPR r 46.2(1).
(x)The judge who had determined issues in the case (at a finding of fact hearing or a final hearing) should be the judge who determined an application for a non-party costs order.
(xi)The procedure for determining the application should be summary in nature, in that the judge should base their decision on the evidence given and findings made in the substantive proceedings.
(xii)A non-party costs order should not be used as a device to circumvent other rules or provisions concerning the funding of advice or representation. (See [46], [47], below).
(2) The local authority ought to have been joined as a party to the proceedings for the issue of the costs of application, under CPR r 46.2(1)(a). However, the authority had had access to the relevant documents and attended previous hearings, no prejudice had been caused to the authority, this point had not been taken by the authority on appeal, and the court would not determine the appeal on the basis of this procedural irregularity (see [48], below).
(3) The guidance indicated that decisions about non-party costs orders ought to be made after the court had heard evidence and made findings sufficient to inform it of all the relevant circumstances that might justify making such an order. Usually this would be after a finding of fact hearing or final hearing. The decision to make an order for prospective costs before receiving any evidence at all from the parties and before making any determinations on disputed facts was not contrary to the rules of court and so not a procedural irregularity sufficient to overturn the decision under appeal, but it had had consequences for the judge’s approach (see [49], below).
(4) The judge had erred in law as to the test to be applied when making a non-party costs order. He had not directed himself that: (i) a non-party costs order should only be made if it was just to do so in all the circumstances; or (ii) if the exceptional circumstances relied upon to justify making a non-costs order were the culpable conduct of the non-party, then the non-party should have been guilty of...
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