Re S (Children) (Care proceedings: Proper evidence for placement order)
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Kerr,Lord Wilson,Lord Hughes,Lord Toulson |
| Judgment Date | 25 March 2015 |
| Neutral Citation | [2015] UKSC 20 |
| Court | Supreme Court |
| Date | 25 March 2015 |
[2015] UKSC 20
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
Appellant
William J Tyler QC
Hannah M Markham
Kate Makepeace Grieve
(Instructed by HB Public Law)
Respondent
Andrew Bainham
Amy Stout
(Instructed by Clifton Ingram LLP)
Intervener (Access to Justice Foundation)
Lance Ashworth QC
Cyrus Larizadeh
Dorothea Gartland (Instructed by Freemans Solicitors)
Heard on 28 January 2015
( with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord Toulson agree)
This case is about the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent's successful appeal to the Court of Appeal against care and placement orders made in a county court. But that issue obviously has to be seen in the wider context of appeals in children's cases generally.
These are care proceedings concerning the four children of Ms A, a girl now aged 13, a boy aged 12, a girl aged seven and a boy aged three. We are concerned only with the seven year old, whom I shall call Amelia. The respondent to this appeal is the father of Amelia and her older brother. He is also the social father of the oldest child, who was born during his marriage to the children's mother. The mother comes from Portugal and the father comes from Nepal. They married in 2002 and separated in 2007, before Amelia was born. The father is not the biological, social or legal father of the youngest child. As it happens, the oldest and youngest have the same biological father, but he has played little part in their lives or in these proceedings.
From May 2009 there were increasing concerns about the presentation and behaviour of the children in their mother's care. Care proceedings were eventually brought in January 2012 and in November 2012 Her Honour Judge Karp found that there had been a serious lack of supervision and neglect of the children; they had suffered physical injuries from each other as a result of not being properly supervised; the mother was unable to meet their emotional, developmental and educational needs; they were at risk of sexual abuse because of their mother's inability to safeguard them from men allowed into the home about whom she knew little; and the two oldest had shown inappropriate sexual behaviour. She found, therefore, for the purpose of the "threshold conditions" in section 31(2) of the Children Act 1989, that they had suffered or were likely to suffer significant harm owing to a lack of proper parental care. This is conceded by the father.
The mother was ruled out as a future carer for any of the four children. The father had had only limited contact with the family since separating from the mother and was not implicated in her neglect of the children during that time. He had since remarried. When the proceedings were begun, it was agreed that the older boy would live with his father and his new wife under an interim supervision order. In breach of his agreement with the local authority, however, the father left the boy with the mother for a short time while he went to work in Norway. And in May 2012 the father asked the local authority to take the boy back into foster care because of his challenging behaviour. He was soon joined by Amelia and their older sister, who had been removed from their mother. They remained together as a sibling group with the same foster family for a year, until the two oldest had to be separated because of their sexual behaviour together.
Between August and October 2012 the father and his wife were assessed by an independent social worker as potential carers for the three older children, including Amelia. The first assessment was positive, but the social worker had not been told that the wife was now pregnant. At that stage, a consultant child and adolescent psychiatrist had reported that Amelia's development appeared normal for a child of her age. An updating assessment, conducted between October and December 2012, became negative, largely because of the couple's lack of candour and the father's lack of insight into the need to be "resilient, consistent and able to implement firm boundaries" when looking after children who had suffered as these children had suffered.
The father and his wife separated in February 2013, before their child was born. The father decided to move permanently to Norway, where he had obtained steady and well-paid employment and spacious accommodation. He asked to be assessed there as a carer for all three children, but both the local authority and the children's guardian resisted that. The local authority's plan was for long term fostering for the two oldest children and a closed adoption (that is without contact with the birth family) for the two youngest. The children's guardian had originally wanted the three children to stay with the foster family which had looked after them for a year, but when that placement failed because of the older children's sexual behaviour with one another, he supported the local authority's plan.
A placement order was made in relation to the youngest child in February 2013. (This has now been implemented; he was adopted in May 2014.) At the final hearing in relation to the elder three children in July 2013, the local authority sought a placement order for Amelia, by now aged five. The father opposed this because it would result in her losing all her established family relationships with her parents and her siblings. He had maintained good contact with the children since his move to Norway and asked to be assessed as her sole carer. This was opposed by the local authority and the children's guardian. Amelia had been assessed by a social worker and family therapist in 2013 (in contrast to the view of the child psychiatrist in late 2012) as having a "high level of emotional and behavioural need" and their view was that the father did not have the capacity to meet this. Judge Karp accepted their opinions and made a placement order authorising Amelia's placement for adoption without her father's consent.
The father appealed. In the meantime, in September 2013, the Court of Appeal had delivered judgment in In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, emphasising the need for the court to evaluate all the options for the child's future where adoption was proposed, analysing the pros and cons of each in the light of the paramount consideration of the child's future in the long term. The father's appeal was allowed: [2014] EWCA Civ 135, [2015] 1 FLR 130. The Court of Appeal held that the judge had been "wrong to make the order without further assessment of the situation of the father and child and in any event did not adequately articulate her reasons to proceed to make a placement order in the circumstances of this case" (para 4). We are told that the process of assessing the father and increasing his contact with Amelia since then has been successful and she has now been placed with him in Norway under a child arrangements order.
The issue before us is not whether the Court of Appeal was right to allow the appeal. The issue is whether it was right to order the local authority to pay the father's costs of the appeal (assessed in the sum of £13,787.70). The father had funded it privately, the non-means-tested legal aid which is available to all parents in care proceedings not being available on appeal. It was not suggested that the local authority had behaved reprehensibly in relation to the child or unreasonably in the stance taken at first instance (para 30). But they had resisted the appeal while recognising the deficiencies in the judgment in the lower court (para 32). A parent should not be deterred from challenging decisions "which impact upon the most crucial of human relationships" (para 30). The decision in this court in In re T (Care Proceedings: Costs) [2012] UKSC 36, [2012] 1 WLR 2281 was distinguishable and the court's discretion broad (para 31).
In their application for permission to appeal, the local authority made it clear that, whatever the outcome, they would not seek to recover the costs awarded and paid to the father. They argued that the case raises matters of public interest which merit consideration by this court, but "it is not intended that Mr S should suffer financial detriment as a result". Permission to appeal was given on that basis. The court is accordingly very grateful to Dr Bainham and the father's legal team, who acted for him pro bono, thus enabling the case to be properly and fully argued.
In In re T, care proceedings were brought in respect of two children who had made allegations of sexual abuse against their father and a number of men, in which it was alleged that their paternal grandparents had colluded. The grandparents intervened in the proceedings in order to refute the allegations. As interveners they did not qualify for the non-means-tested legal aid which is available to parents. Their means were modest but above the legal aid threshold. They therefore had to borrow to pay for their own representation. The allegations were investigated at a "split" fact finding hearing, at which the grandparents were exonerated, although no criticism was made of the local authority for putting the allegations before the court. The Supreme Court held that the trial judge had been correct not to make an order that the local authority pay the grandparents' costs.
Lord Phillips, giving the judgment of the court held, at para 44, that
"the general practice of not awarding costs against a party, including a local authority, in the absence of...
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