Re M (Child Case: Costs)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Family Division |
CAZALET, J
Costs – child case – care proceedings in magistrates' court – application by local authority to terminate contact between child in care and father – court refusing application – costs order made in favour of father against local authority – whether costs order should have been made – principles to be applied.
The father and mother married in 1980. Subsequently, in 1980 and 1982 two children were born. The family had come to the attention of social services in 1986 due to the children's learning and behavioural problems. In April 1987 place of safety orders were made in respect of the two children who went to live with foster-parents. Full care orders were made in June 1987 and contact arrangements came into being.
Between 1986 and 1992 allegations had been made by the girl that her father had physically and sexually abused her. A psychologist had expressed the view that the children had been sexually abused. The children had been moved to children's homes for assessment and therapy. The father had threatened suicide. Social services review meetings concluded that the father's individual visits should be stopped.
In October 1992 the local authority sought an order refusing contact between the children and their parents. The parents did not oppose an order in respect of the girl and an order to that effect was granted in February 1993. The application in relation to the boy was opposed by the father and by the boy. At the conclusion of the hearing the magistrates' court refused to grant the local authority's application and made an order that the local authority permit contact between the boy and his paternal grandparents and maternal grandmother and that the boy should have contact with his father and mother which was to be face to face contact twice a year supervised by the local authority within a family group session and letters monthly and presents at the discretion of the local authority.
The father applied for his costs of and incidental to the hearing to be paid by the local authority. The court ordered that the local authority should pay the father's costs of £1,200.
The local authority appealed.
Held – allowing the appeal: (1) When deciding the issue of costs in child cases, a court should approach the question by adopting the general proposition that it was unusual to make an order for costs where the conduct of a party had not been reprehensible or the party's stance had not been beyond what was reasonable. In considering these questions the court would always look in particular at whether it was reasonable for one of the parties to have brought or maintained the proceedings. The proposition applied in its fullest form to proceedings between parents and other relations, but it also applied to proceedings to
which a local authority was a party.
(2) In their reasons in the present case the magistrates had stated that they were not satisfied that there was a presumption that there would be no order for costs. They had referred to r 22 of the Family Proceedings Courts (Children Act 1989) Rules 1991 and stated that they believed that r 22 gave them wide and unfettered powers to award costs. They indicated that, as there was no guidance given or criteria set out which they were to follow under r 22, they believed that it was a matter for their discretion. The magistrates had erred by failing to follow the clear and appropriate judicial guidelines as to costs in child cases. The local authority had not acted reprehensively nor had they stepped outside an acceptable band of reasonableness in pursuing their application to terminate direct contact with the father. In the circumstances the order for costs made by the magistrates could not be justified and would be set aside.
Statutory provisions referred to:Children Act 1989, ss 8 and 34(2), (4) and (5).
Family Proceedings Courts (Children Act 1989) Rules 1991, r 22.
Cases referred to in judgment:Bolton Metropolitan Borough Council v B and H [1990] FCR 57.
Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 596; [1975] 3 All ER 333.
G (Minor) (Wardship: Costs), Re [1982] 1 WLR 438; [1982] 2 All ER 32.
Gojkovic v Gojkovic (No 2) [1991] FCR 913; [1992] Fam 40; [1991] 3 WLR 621; [1992] 1 All ER 267.
Havering London Borough Council v S [1986] 1 FLR 489.
Hillingdon London Borough Council v H[1992] 2 FCR 299.
Sutton London Borough Council v Davis (No 2)[1994] 2 FCR 1199.
Judith Parker, QC and Rebecca Brown for the local authority.
The father in person.
The mother, children, and guardian ad litem were not present nor represented.
MR JUSTICE CAZALET.The parties to this appeal are the Berkshire county council, who is the appellant: Mr and Mrs M, who are the first and second respondents, and J and B who, by their guardian ad litem, are the third and fourth respondents. The appellant, to whom I shall refer as the local authority, appeals against an order for costs awarded to Mr M the first respondent in the sum of £1,200, that order having been made on 22 April 1993. The local authority has been represented by leading counsel. Mr M has appeared in person to oppose the appeal. None of the other parties, that is to say the second, third or fourth respondents have appeared or been represented before me since they have in no way been affected by the order for costs made in favour of the first respondent against which the local authority appeals.
The first and second respondents are the father and mother respectively of the third and fourth respondents: J, a girl, who was born on 26 January 1980 and B, a boy, who was born on 12 January 1982. I shall refer to the first and second respondents as father and mother. They were married in 1980. They continue to live together. In circumstances to which I shall come in a moment place of safety orders were made in respect of the two children on 7 April 1987. Since then neither
has lived with the parents. On 19 June 1987 full care orders were made and contact arrangements came into being. By application dated 7 October 1992 the local authority applied pursuant to the provisions of s 34(4) of the Children Act 1989 for permission to refuse contact between the two children and their father and mother. The application relating to the girl was unopposed by the parents and was adjudicated upon and granted on 5 February 1993. As a result the mother and father have had no further contact to her.
The local authority's application in respect of the boy was opposed by the father and was also opposed by the boy himself, then aged 11¼. The boy was separately represented by his own solicitor, Mr Bugg. In her written report dated 21 January 1993 the guardian ad litem had expressed the provisional view that it was not appropriate for there to be further direct contact by the boy to his father. However the guardian ad litem had made clear that, before she expressed a final view, she would wish to hear the evidence in the proceedings. The father was prepared to accept face to face contact two or three times per annum to the boy. The boy was seeking to have such contact monthly to his father.
The hearing lasted four days, over 5, 11, 12 and 19 February 1993. On the final day the magistrates refused to grant the application sought by the local authority under s 34(4) in respect of the boy and made an order, pursuant to s 34(2), that the local authority should permit reasonable contact between the boy and his paternal grandparents and paternal grandmother, and further that the boy should have contact to his father and mother as follows:
(1) face to face contact to be supervised by the local authority twice a year within a family group session, and
(2) letters monthly and presents at the discretion of the local authority.
At the conclusion of the hearing the father applied for the local authority to pay the costs of his representation leading up to and including the costs of the trial. The hearing of this costs application was adjourned sine die and was brought back for hearing before the magistrates on 22 April 1993 when they made the order to which I have referred, namely that the local authority pay the sum of £1,200 towards the father's costs. They set out their reasons. Before I turn specifically to those reasons it is helpful to say something about the general history of this matter.
I deal first with the delay which has taken place in regard to this appeal being heard. The appeal has come on for hearing no less than 17 months after the order was made by the lower court. The father has taken no point on this. Miss Parker, on behalf of the local authority, has however quite properly taken me through a considerable volume of correspondence. This shows that in the main the delay has been due to quite proper attempts made to seek to compromise the appeal. In the event these attempts were unsuccessful. I put them out of my mind save to say that I am satisfied that no culpable blame lies...
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