Peterborough City Council v K, L, M, N and P
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 23 June 2022 |
| Neutral Citation | [2022] EWFC 61 |
| Docket Number | Case No: FA-2022-000035 |
| Court | Family Court |
[2022] EWFC 61
Mr Justice Poole
Case No: FA-2022-000035
IN THE FAMILY DIVISION
ON APPEAL FROM HHJ TOLSON QC SITTING IN THE FAMILY COURT AT
PETERBOROUGH
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Duxbury, (instructed by the Appellant's Legal Department) for the Appellant
The First and Second Respondents in person
The Third to Fifth Respondents not appearing
Ian Martignetti (instructed by the Children's Guardian) for the Sixth to Ninth Respondents
Hearing date: 18 June 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an appeal against a third party costs order made against Peterborough City Council (the Appellant Local Authority) in ongoing private law proceedings brought by K and L as Applicants, to which the Respondent mother (M), and Respondent fathers (N and P) of the four children concerned were parties, whereby the Judge ordered the Local Authority 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 K and L had applied for such an order and M had supported the application. The Judge had given an opportunity to the Appellant Local Authority to make representations in opposition. The Judge heard submissions on 22 December 2021 before handing down a reserved written judgment on 14 January 2022 and then making his order on 28 January 2022.
K and L are now the First and Second Respondent to this appeal but for ease I shall refer to them as the Applicants. In this judgment I set out a chronology of events and of the proceedings in the Family Court, the reasons the Judge gave for his costs order, the relevant law, the parties' submissions on appeal, and my decision. The Applicants opposed the appeal and appeared in person. The Children's Guardian was represented at the appeal hearing but took a neutral position. Otherwise there was no appearance at the appeal by or on behalf of the other Respondents notwithstanding that on granting permission to appeal, Morgan J gave them an opportunity to make representations.
For the reasons set out below I allow the appeal and set aside the costs order.
Chronology
The family concerned in this case comprises the mother, M; her adult daughter and her partner, K and L; the mother's four other children A, B, C, and D, aged between 6 and 14 when the private law proceedings were issued; N, the father of K and the three older children; and JB the father of the youngest child, D. The anonymity of the adults in this case is maintained to preserve the anonymity and protect the welfare of the children.
The four children were living with the mother when on 26 February 2021 the eldest child, A, voluntarily moved out and went to live with K and L who alerted the Local Authority to concerns that her mother, M, was abusing alcohol and neglecting the children. In April 2021, the Local Authority decided to treat the children as children in need.
On or around 26 May 2021 there was a violent altercation at the mother's home. On 28 May 2021, the three youngest children left M's care. There is a factual dispute as to the circumstances, to which I shall return later in this judgment. On 16 June 2021 there was an initial child protection conference and the three younger children were placed on the child protection plan. On 30 June 2021, the child protection plan was varied to reflect the fact that the children were in the care of K and L, with the consent of the parents at that time.
On 2 July 2021, N and K applied for a Child Arrangements Order for the children to live with K. The application states that the three youngest children have been with her since 28 May 2021 and were at risk of serious harm due to neglect in the care of the mother, M.
On 19 July 2021, the Local Authority sent a Public Law Outline (PLO) letter to the children's parents. This is effectively a pre-action letter. It does not commit the Local Authority to issue proceedings but indicates that they are in contemplation. On 30 July 2021, an initial PLO meeting took place comprising, amongst others, M, N, K and L. The Local Authority say that they understood that M, N, K and L had received legal aid for the PLO, but K and L dispute this.
On 12 August 2021 the first court hearing of the private law application for a child arrangements order was held before HHJ Tolson QC. He deemed that the applicants were in fact K and L, not K and N, seeking a lives with order in respect of the four children and that the children were currently living with them with the approval of the Local Authority. He made an interim Child Arrangements Order that the children live with K and L. He made an order under s.7 of the Children Act 1989 (CA 1989) requiring the Local Authority to report by 8 October 2021 on future child arrangements, wider welfare needs, and the outcome of the PLO process.
I have a transcript of the hearing on 12 August 2021 and note the following exchange between the judge and the team leader social worker who appeared on behalf of the Local Authority,
JUDGE TOLSON: Thank you. Right, now, Ms Howell, are we likely to end up in public law proceedings or is this a case in which the private law proceedings are more likely to settle the children's future?
MS HOWELL: It's difficult to say. I think that private law proceedings are more likely to settle the children's future as currently the children are with K and her partner and there are no concerns about the children in K and her partner's care.
Although there was some lack of clarity as to whether the youngest three children had moved to the Applicants' home directly on 28 May 2021 or via N's home, it was known that they had been living with the Applicants for about two and a half months by the date of the first hearing. The Local Authority had not made any court applications in that time. No concerns about the children's welfare in the care of the Applicants were raised before the judge.
The next court hearing was before HHJ Tolson QC on 14 October 2021. The oldest child had by then been placed on a child protection plan on 14 September 2021. The Local Authority had decided not to issue public law proceedings and had so informed the court. The court order recites that at the previous hearing the court “had expected public law proceedings to follow”. Under s.37 of the CA 1989 the Judge directed the Local Authority to consider whether they should apply for a care or supervision order or take any other action in respect of the children. As empowered to do so by s.38 of the CA 1989 the judge made an interim supervision order.
On 17 November 2021, at a further hearing before HHJ Tolson QC at which the Applicants were now legally represented, the court noted that the Local Authority's response to its s.37 direction had been insufficient. The court “expressed surprise” that the local authority had not issued public law proceedings and recited that the local authority “needed to be involved at least to the level of a supervision order.” The mother was now seeking return of the children to her care in the ongoing private law proceedings. The Applicants' solicitor indicated that a costs order would be sought against the Local Authority. A further s.37 direction and a further interim supervision order were made. A short judgement 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 Local Authority.
A further hearing before HHJ Tolson QC was held on 14 December 2021. The Local Authority repeated its settled position in its formal response to the further s. 37 direction – it would not be commencing public law proceedings. It gave reasons and set out what further steps it would be taken in relation to the children. At the hearing, the judge ordered that the Local Authority should show cause at a subsequent hearing on 22 December 2021 why they should not pay the prospective and retrospective costs of the Applicants, the prospective costs of the Respondent mother, and the prospective costs of N. An application for those costs orders had by then been made by the Applicants in the private law proceedings.
At the hearing on 22 December 2021 HHJ Tolson QC had the benefit of position statements and heard representations on costs from the solicitor for the Applicants, from the Local Authority and from the solicitor for the Children's Guardian. After handing down his written judgment on 14 January 2022 he made the orders for costs referred to at the opening of this judgment. Past costs were not assessed but were to be assessed, alongside all the future costs of the proceedings, at the conclusion of the proceedings. The basis of assessment (standard or indemnity) was not specified.
The Judgment
It is pertinent to note that when the decision under appeal was made, the court had received no evidence from witnesses in the proceedings other than a short statement from a social worker, had heard not evidence, and had made no findings. The private law proceedings were far from concluded and it was not known how protracted they would be, whether expert evidence would be required, or how many further hearings would be needed.
In his judgment, the judge refers to r.46.2 of the Civil Procedure Rules (applied by the Family Procedure Rules r.28.2) and s.51(3) of the Senior Courts Act 1981 but no other rules and no authorities. He was not referred by Counsel to the full range of...
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