Strand, London, WC2A 2LL
B e f o r e :
| HB (mother)
|- and -
(a child, by his Guardian, Denise Hart)
THE LONDON BOROUGH OF CROYDON
Respondent on the issue of costs only
Annmarie Harris (instructed by Amphlett Lissimore) for the Mother (MB)
Michael Bailey (instructed by Irvine Thanvi Natas, Solicitors) for the child by his guardian
Mark Calway (instructed by the Local Authority Solicitor) for
the London Borough of Croydon
Crown Copyright ©
The Honourable Mr Justice Cobb :
i) Over a number of years, the mother had falsely led the father (and the paternal family) to believe that she was suffering from cancer of the womb, vagina and brain, and had tumours behind her eye and neck, and that (by early 2012) she only had a number of months to live;
ii) From early in OB's life, the mother had falsely led the father (and the paternal family) to believe that OB was suffering from a number of serious medical conditions, including untreatable stomach and bowel problems which may require removal of his bowel and the application of a colostomy pouch;
iii) From early in OB's life, the mother had falsely led the father and the paternal family to believe that OB was lactose intolerant and allergic to over 4,000 foods; she asserted that doctors had advised that OB should not eat solid food;
iv) That the mother had led the father and the paternal grandmother and the paternal aunt to believe that OB may ultimately require a feeding tube and that the paternal grandmother had been informed that OB may die from his medical conditions.
i) that it would hold a legal planning meeting and take a decision as to whether or not to issue proceedings before the hearing on 14 December 2012, and
ii) it would attend and be represented at the hearing on 14 December 2012 to explain why it should not pay the costs of the hearing on 10-11 December 2012.
"1. The Local Authority require more time for the evidence in these proceedings to be fully analysed and for further investigations with other professionals from school and health to have taken place, before a decision can be made with regards to the following:-
- whether or not threshold is met and;
- if threshold is met whether or not the Local Authority will be issuing care proceedings in respect of OB.
2. Based on the medical information contained in the papers from the private law proceedings there is a need for a more in-depth investigation and assessment around the allegations made by the father against mother."
Section 37 investigation and report
i) apply for a care order or for a supervision order with respect to the child;
ii) provide services or assistance for the child or his family; or
iii) take any other action with respect to the child.
"A court considering any question with respect to a child under this Act may–
(b) ask a local authority to arrange for–
(i) an officer of the authority; or
(ii) such other person (other than [an officer of the Service] [or a Welsh family proceedings officer]) as the authority considers appropriate,
to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report."
"There are concerns that [the mother] is alleged to have informed [the father] and paternal family members that she has been diagnosed with Cancer and she has a Brain Tumour, [the mother] also allegedly gave a timeline to her life. [The mother] is also alleged to have fabricated illness about OB, she continues to deny this. This issue will have to be addressed between both parents, while OB continues to have good stability in a caring environment where his needs can be met appropriately" (§15.1) (emphasis added)
"It is of concern that [the mother] is alleged to have fabricated illness about herself, as well as OB. She has denied such allegations… I am of the professional view that [the mother] requires some form of intervention which can explore if there are any underlying issues with regards to [the mother's] psychological well being, as to ensure that OB is not placed at risk of harm at any given time" (§19) (emphasis added).
"To date Croydon Council has not received any information which raises concerns about [the mother's] ability to meet her children's needs safely."
Q: … the father says that the mother told him and family members that OB was unwell/that she exaggerated his illness?
A: Yes but I was given this case to look at contact and residence, and I went on the information in the GP records.
Q: … if it is the case that what the father says is true … then the mother was fabricating illness in OB?
Q: And that would tend to indicate a risk of harm to OB wouldn't it?
A: But the mother said that she did not say this, and the medical notes made no reference to fabricated illness.
Q: …If what the father says is true do you agree that this puts OB at risk of significant harm.
A: If it is true.
Q: …why do you say that the threshold is not met for the LA to apply for an interim care order?
A: I don't know, the legal team would know. At the time we did not consider that OB was at significant risk of harm.
Q: What is the threshold for an ICO
A: (long pause) I would need to take legal advice.
Q: If findings are made against the mother at the end of the hearing what would your position be?
A: I would need to discuss that with the legal team.
Q: If the Judge finds the father's allegations to be true, do you agree that OB would be at risk of significant harm?
A: I would need to discuss this with the legal team.
Q: If the court finds the father's allegations to be true what would your recommendation be about contact and residence?
A: I could not make a decision without consulting with members of the legal team and my manager.
Q: So there has been no discussion about this so far?
Q: When could you discuss this?
A: Tomorrow perhaps.
Q: Did you feel uneasy about the allegations raised by the father against the mother?
A: No I did not feel uneasy but it seemed that the father's allegations were serious and I do not know why he would have made such reports against mother if they were not true, so I was confused.
i) that she had had no training in relation to cases of fabricated illness;
ii) that she was unaware of the DCSF 2008 Guidelines, or the 'Incredibly Caring Programme';
iii) that she had not spoken to OB's General Practitioner;
iv) she had not visited OB's school, nor enquired of the school what was known about OB's health ("A: That was not my role. It was not relevant at the time…"; later: "we only visit school when carrying out a section 47 investigation");
v) that she had not spoken to extended family members (even though the mother had made complaint to them of illness in herself and the child);
vi) that she knew that the child's attendance record at school was 69.4% in the relevant period (A: "if a child is sick, he's sick"), indicating that this attendance record was "ok";
vii) as indicated above, that she did not know the test for an interim care order;
viii) that she had no experience as a qualified practitioner in this type of case.
i) "None of the social workers have particular expertise of dealing with these types of cases.";
ii) There is no training in LB Croydon for dealing with cases of fabricated illness;
iii) She herself was not familiar with the 'Incredibly Caring Programme';
iv) She accepted that her social worker was not aware of the guidelines in the DCSF guidance;
v) She accepted that if the father's allegations were true then there would be reasonable cause to believe that OB was at risk of harm;
vi) That she had not taken legal advice in the case at all until after the conclusion of the social worker's evidence on the previous day;
vii) That the position of the Local Authority on 11 December was "very different" from the point of the delivery of the report.
"…if the courts find it to be true that [the mother] did fabricate illness in OB and in herself, it will be of concern as to why [the mother] will make such allegations about a child and furthermore about herself. I will suggest that a Psychiatric assessment of [the mother] be carried out to explore the possible reasons for her behaviour." (§31)
But added nonetheless that:
"I am of the view that there are no safeguarding issues pertaining to OB." (§38)
"…having utilized the definition of Fabrication of Illness, I am of the view that there are no signs of this." (§38)
"These reports do not assist me materially in the fact-finding exercise; the assessment is necessarily predicated on an unclear factual foundation, and the internal confusions within the report perhaps reflect this. I do note with concern that the social worker, having formed the view that the mother had probably lied to the father about OB's and her own illnesses in order to pursue a covert affair, did not go on to consider that this raised implications for OB."
Principles on which a court makes an order for costs against a non-party
"The court may at any time make such order as to costs as it thinks just".
"there appears to me to be a danger of treating the requirement that the circumstances are "exceptional" as being part of the statute to be applied. It is not. The epithet originates in the first proposition enunciated by Balcombe LJ in Symphony Group plc v Hodgson, but it is based on what Lord Goff said in Aiden Shipping Co.Ltd v Interbulk Ltd  1 AC 965, 980
"In the vast majority of cases it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings. But, as the facts of this case show, that is not always so."
In none of the cases to which I have referred have "exceptional circumstances" been elevated into a precondition to the exercise of the power; nor should they be.
Ultimately the test is whether in all the circumstances it is just to exercise the power conferred by subsections (1) and (3) of s.51 Supreme Court Act 1981 to make a non-party pay the costs of the proceedings. Plainly in the ordinary run of cases where the party is pursuing or defending the claim for his own benefit through solicitors acting as such there is not usually any justification for making someone else pay the costs. But there will be cases where either or both these two features are absent. In such cases it will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstances relied on are such as to make it just to order some non-party to pay the costs. Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advance by reference to any further characteristic".
"That element … is not a pre-requisite to the exercise of the jurisdiction conferred by s.51(1) and (3) Supreme Court Act 1981" (§27).
"In my judgment, the courts do have power in an appropriate and exceptional case to make an order in respect of costs against the board under section 51(1); the role of the board in litigation in which it is assisting one of the parties is a crucial one. The board's efficient performance of its statutory duties is crucial to the proper and expeditious conduct of such litigation and the courts have an essential interest in seeing that those functions are performed in such a way that litigation is effectively progressed."
i) The general principles that orders for costs between the parties in children cases which would (i) diminish the funds available to meet the needs of a family or (ii) exacerbate feelings between two parents are not relevant when considering costs against a local authority Re T (Costs: Care Proceedings: Serious Allegations Not Proved)  (supra) [§12];
ii) Where a party local authority has caused costs to be incurred by acting in a way that is unreasonable, or has conducted itself in a reprehensible way, justice may well require that the local authority pay the costs in question: Re T (Costs: Care Proceedings: Serious Allegations Not Proved)  (supra) [§13; §15];
iii) Where in the course of the investigation of the inappropriate use of the health services in care proceedings, the court found that the authority had failed to:a) properly investigate;b) convene a strategy discussion or otherwise evaluate information relating to the children's extensive involvement with health services; andc) in general, pay proper heed to national guidance in cases where concerns of fabrication of illness are raiseda costs order was appropriate (see Coventry City Council v X, Y and Z (Care Proceedings: Costs)  1 FLR 1045 [§79-§91]);
i) The evidence of Ms Gordon (when she confirmed that the local authority needed to reassess the situation in light of Mrs O's evidence of the previous day: §29 above), and more specifically
ii) the summary of the Planning Meeting (13 December) (see §16 above),
as providing the clearest indication of the fact that the Local Authority had failed to address the relevant issues in the preparation of its section 37 report, directed some eight months earlier, either adequately or at all.
"the Local Authority are … bound to accept that as at the time of the hearing listed on 10th and 11th December 2012 the relevant guidance had not been applied and that the issues in the case had not been fully investigated within the section 37 report".
i) there was no, or no effective, line-management of the key social worker undertaking an assessment of this complexity;
ii) there was inadequate experience or awareness of the implications of the relevant guidance even by the Team Leader.
i) The Local Authority failed to attach any, or any appropriate, significance to the important national published guidance relevant in cases of this kind;
ii) There was a failure on the part of the Local Authority to ensure that the allocated social worker was aware of the relevant Guidance;
iii) Neither the allocated social worker nor her manager (Team Leader) sought legal advice on the implications of the case, or the issues raised by the section 37 direction, prior to the evening following the first day of evidence (10 December), some eight months after the direction for the report, and five months after filing the report; such advice was only sought after the social worker had sought to defend her report and its conclusions before the court;
iv) That the section 37 report was deficient for absence of thorough investigation, assessment, analysis, or any logical or coherent thinking.
" Given the work that has gone into preparing authoritative national and local guidance upon cases of induced or fabricated illness, the court is entitled to expect that when a social work team manager asserts in evidence that this is a case of 'Munchausen's syndrome by proxy' or 'factitious illness syndrome' (depending on which note of evidence is correct) the social work team has acted in accordance with the guidance and that the assertion being made is backed up by paediatric opinion."
"It seems to me that in the administration of justice, especially… it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his evidence causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court…
… The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice" [§94-§98]
Summary assessment of the costs
The wider context of the proceedings