England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Case Number: KT08P0746 Royal Courts of Justice
		15 June 2012

Mr Justice Peter Jackson:

1. This is an edited version of a judgment given on 15 June 2012, the editing being necessary to protect the identity of the family concerned.
2. On 22 May 2012, at the end of longstanding public law proceedings, C, a girl aged 8, was adopted by her aunt. The aunt now applies for an order that the local authority should pay her costs of the latter part of the proceedings.
3. The application raises an issue about whether it is appropriate for an order for costs to be made against a local authority in favour of a litigant who needs but cannot afford legal representation.

Background

4. In the proceedings themselves, the care threshold was comprehensively established on the grounds that C had suffered and was likely to suffer from the volatile relationship between her parents, their neglect, their serious criminal offending and the consequences of her mother's mental ill-health. A copy of the threshold findings is attached to the final order.
5. On any view, the facts were extreme. I summarised the circumstances in which C came to live with her aunt in the course of a judgment given on 6 November 2010. The background involved the most serious physical harm to adults and children, with an unknown and possibly unknowable level of risk to C herself and to anyone caring for her, including a risk to life.
6. The aunt had first become involved in the proceedings in December 2009. She put herself forward as a carer and gave evidence in February 2010. She was approved as an interim foster carer in June 2010.

C moves to live with her aunt

7. At the hearing in November 2010, the issue was whether C should remain in foster care or move to the care of her aunt. The local authority was absolutely opposed to C living with any family member on the basis that it was too dangerous. The Guardian on balance supported the local authority. At that time the various criminal trials, described in the unedited judgment, were a long way off. Had C remained in foster care, which was not going well for her, she would probably have been there for at least a year before a decision could be made about her future.
8. My decision was that C should move to live with her aunt. After negotiation between senior management and the court, the local authority agreed to place C with her aunt under an interim care order on the basis that it provided the services while the court accepted responsibility for the risks. I commended the local authority for this, as C needed the security of a care order at that stage.
9. C was accordingly placed with her aunt in December 2010. She was, not surprisingly, in a very disturbed state.
10. The next 18 months have seen the following developments:

(1) The aunt has reorganised her life. She is a single person in her early 30s, who works full-time, fortunately for a broadminded employer. She and C live at a secret address for safety reasons. She has supported C's school and her assessment at a specialist clinic, as well as attending meetings with social workers and those carrying out assessments for the court. She has been expected to produce daily report sheets as a foster carer, which was onerous for someone who is dyslexic. She has also had to negotiate difficult though limited contact arrangements for the parents.

(2) C has made tremendous progress. She has received sensible and devoted care from her aunt and considerable support from her school.

(3) For its part, the local authority has paid a fostering allowance to the aunt and given social work support.

(4) Unfortunately, the relationship between social services and the aunt has not been easy. She has experienced social services as being bureaucratic and inefficient, while the social workers saw her as being unduly punctilious and resistant to advice.

(5) In the summer of 2011, the criminal trials took place, the outcomes being described in the unedited judgment.

(6) A court-directed assessment has taken place. Dr Clare Lucey, the child and adolescent psychiatrist, reported in April 2011. Her interim opinion about C's placement with her aunt was positive: "In my view C is doing well in her aunt's home and her aunt is providing the best available placement. If C were to remain with her aunt I think she would do very well. I do not have concerns about it as a long term placement." A year later, Dr Lucey recommended C's adoption by the aunt in her final report.

(7) Further court hearings took place in May and September 2011. In May, I refused the aunt's application for permission to apply for a residence order. In September, I granted her application for permission to apply for a special guardianship order or an adoption order.

(8) The proceedings continued after the first report of Dr Lucey and the criminal proceedings because there was no agreement about the final outcome. Both interim applications, referred to in the paragraph above, reflected the rather poor relationship between the aunt and the local authority. In May, the aunt wanted a residence order so as to become a family carer rather than a foster carer. I dismissed the application, not because of any concern about her care of C, but because there still needed to be an interim care order at that stage. Then, in September, the position was the other way round. The local authority remained aloof on the question of whether the aunt should be granted permission to apply for an SGO or adoption order. Furthermore, it had referred the aunt's position to its fostering panel. This arose from what it regarded as her lack of cooperation with its procedures. I was so concerned at the state of affairs that I asked for confirmation that the referral was not in fact going to lead to the aunt being deregistered as a foster carer and, having had that confirmed, I recorded it in the order. As it happens, the local authority persisted with the referral, but the aunt was not criticised by the panel and the placement continued.

(9) It was not until mid-May 2012, following the receipt of Dr Lucey's final report, that the local authority felt able to give unequivocal support for C's permanent placement with her aunt. There then followed detailed negotiations about the terms of an adoption support package, which were not concluded until the second day of the hearing on 23 May. The local authority will continue to pay an adoption allowance and will fund specialist therapy for C.

(10) The final hearing was listed for five days on 21 May 2012, but finished in a day, with negotiations about the support package and argument about costs taking the case into a second day.

(11) Since February 2011, the aunt has asked the local authority for assistance with her legal costs. It declined to give any until two weeks before the final hearing, when it offered £2,000 as a discretionary amount following its approval of the aunt as an adopter.

11. Drawing matters together, there has been a big picture and a day-to-day narrative.
12. The big picture is that the aunt is the only member of C's family on either side who could possibly have offered her a home. Without the aunt, C could not have remained within her family. Given her age and the disturbing family history, adoption outside the family would have been unlikely, and she would have faced the bleak prospect of spending the rest of her childhood in foster care. In that sense, the desirable outcome for C was clear from the moment that she was placed with her aunt. Whether the placement would succeed could not be known until it was tried, but it was objectively going to be best for C if she could remain with the aunt, particularly after the outcome of the criminal trials.
13. In contrast, the day-to-day narrative involved regular difficulties between the aunt and the social workers. They found it difficult to work with her as a foster carer, citing, for example, her unwillingness to make herself available for alternative dates for meetings when it had cancelled planned dates.
14. At the hearings in May and September, I asked the parties to work together more harmoniously and invited the local authority to consider paying for the aunt to have her own legal representation to help her to negotiate the situation that she found herself in. On each occasion, the local authority refused, as was its right, but I noted that a costs issue might arise at the end of the proceedings.

The aunt's costs

15. The aunt earns £29,000 gross from her employment, which places her narrowly above the legal aid threshold. She cannot afford to pay for legal advice and representation.
16. Ms Cover first represented the aunt at the last hearing in the County Court in September 2010, when she was instructed by solicitors. The aunt paid privately (some £880) for that hearing.
17. Thereafter, the aunt was represented by Ms Cover via the Bar Pro Bono Unit. At the hearing in November 2010, Ms Cover's colleague, Ms Deirdre Fottrell, appeared pro bono and Ms Cover herself then appeared pro bono at the hearings in December 2010 and May 2011.
18. From 5 September 2011 onwards, the aunt retained Bindmans, and Ms Gieve instructed Ms Cover at the hearings on 20 September 2011 and 21-22 May 2012, and in relation to advising and preparing documents in the meantime. It is to this eight month period that the claim for costs relates, amounting to:

Ms Cover (reduced hourly rate, itemised)	£ 7,425
Bindmans (itemised)	£15,309
TOTAL	£22,734 (incl VAT)

The local authority's position

19. On behalf of the local authority, Mr McIlwain submits that

(1) On the facts of the case:

(a) It would have been wholly inappropriate for the local authority, whose interim care plan was for C to remain with her aunt, to have expressed a final view before all assessments had been completed.

(b) The aunt did not need legal advice. The issues became relatively straightforward following C's placement with her and the assessment by Dr Lucey: "…it was quite clear by May 2011, if not before, which way the wind was blowing". By September 2011, the position of the aunt "was neither complex, convoluted or fragile."

(c) The purpose of the referral to the fostering panel in September 2011 was "to try to overcome the various niggles and disagreements that had arisen… in order to continue working together in the best interests of C."

(d) The conduct of the local authority has not been reprehensible or unreasonable.

(2) On the question of principle:

(a) The general proposition that there should be no order for costs has not been displaced. There has been no free-standing element to the proceedings, such as a fact-finding hearing. Had the aunt been publicly funded, it is inconceivable that an application would have been made on behalf of the Legal Services Commission against the local authority.

(b) It is inappropriate to constitute a local authority as a secondary funding authority in cases where Parliament has decided that litigants are not entitled to public funding. Requiring the local authority to fund the aunt's costs would "break new ground and set a dangerous precedent, ringing alarm bells in local authorities throughout the country". If the aunt is awarded her costs, it would give the green light to any party involved in care proceedings to seek costs against the local authority. This might lead to local authorities opposing the grant of party status to relatives because of potential costs implications. What, in any event, what would the criteria for awards of costs be?

(3) On the amount claimed:

(a) The figure claimed is excessive. Much of the costs claimed relate to correspondence about the aunt's position as a foster carer, and not her position as a litigant. For example, Bindmans' bill includes 16 hours spent on e-mails.

(b) The issue of whether to apply for special guardianship or adoption obviously merited some legal advice, and appropriate funding is often offered by local authorities as a matter of discretion. Normally, a figure of £2,000 might be allowed; the highest discretionary amount paid by this local authority is £4,000-5,000.

My findings

20. The aunt's position needs to be acknowledged. C was placed with her in a highly charged situation. The placement, which had not had the support of the authorities, was strongly opposed by the father at the time that it was made. The mother, the aunt's sister, was not to be allowed any contact. The grandmother, the aunt's mother, was only to have a peripheral role. The aunt was preoccupied, if not overloaded, with the demands of settling and looking after a disturbed child who knew (and still knows) only part of what has happened within her family. The secrecy of the placement has had to be maintained against family members and outsiders. The aunt has needed to deal with professionals (the local authority, the Guardian) whose ultimate support was uncertain. At the same time as all this she has been holding down a full-time job. Added to all that, she was expected to participate in the proceedings without having the means to do so.
21. I am in no doubt that it was necessary for the aunt to be a party to the proceedings. Had she not been, C would not have been placed with her when she was, and possibly not at all. From November 2010, the aunt, though the most important adult participant in the proceedings, was the only one of the six parties who was not funded at public expense. At that stage, and well into 2011, the parents and the grandmother had leading and junior counsel.
22. I also find that the aunt could not have been expected to participate in the proceedings on her own. She plainly needed legal representation at hearings and a degree of legal advice between hearings.
23. Proper legal representation in this situation was of real importance, and not just to the aunt. If she had not had the assistance of Ms Cover and, later, Ms Gieve, there was a real risk of a crisis developing between the aunt and the local authority, which might even have jeopardised C's placement.
24. Further to that, the final hearing would undoubtedly have lasted far longer than it did if the aunt had not had advice and representation in relation to the adoption support package.
25. In response to Mr McIlwain's submissions on the facts, I find that:

(1) As the proceedings ended in agreement, I have not investigated in detail where responsibility lies for the day-to-day state of affairs between the aunt and social services. I suspect that both could have done more to make things go smoothly. However, my reading of the situation, gained from two hearings in 2011 and one in 2012, is that the local authority was slow to see the big picture, which is that this was a placement that needed the fullest encouragement from the start. Instead its approach was that it needed to be satisfied by the evidence that C's permanent placement with her aunt was something it should support. It was entitled to choose this approach, but it had consequences for the working relationship with the aunt, who understandably detected a lack of enthusiasm on its part. For example, at the hearing in May 2011, the court heard positive observations about the aunt's parenting from Dr Lucey, C's school, and from a fostering support social worker who had assessed the aunt. In contrast, there were no very positive observations from the allocated social worker and mixed comments from the Guardian, while a former play therapist in fact doubted the aunt's ability to meet C's needs. I have already noted that it was not until May 2012 that the aunt knew that her wish to care permanently for C had clear official support.

(2) It would not have been "wholly inappropriate" for the local authority to have expressed a final view before all assessments had been completed. After the criminal proceedings, it was open to it to decide that it should throw its weight behind the placement with the aunt. In fact, it decided to wait for Dr Lucey's final report, which was then somewhat delayed. The proceedings continued and remained active for longer than they might have done, to the aunt's disadvantage in terms of costs.

(3) I do not accept that it was "clear by May 2011, if not before, which way the wind was blowing", though, as I have just said, it might have been. The issues involving the aunt might have became "relatively straightforward" following C's placement with her, had the local authority said so at the time. But it did not say so, and the way in which the matter is now presented is not how I recall it, and it is certainly not how the aunt will have experienced it. Rather, the dynamic throughout was that the aunt was going to have to satisfy the local authority and the Guardian that she was to be trusted with C.

(4) If the local authority thought that the referral to the fostering panel in September 2011 was "to try to overcome the various niggles and disagreements that had arisen", then again it did not make this clear at the time and the court had to demand clarification. The aunt was right to see the referral as a sign of the local authority's scepticism about her role as C's carer.

(5) The local authority has certainly not behaved reprehensibly, nor has it behaved unreasonably in the sense described in some cases. However, I do find that it could have acted differently, and that this would have reduced the need for the aunt to have legal representation at this level. As the Family Justice Review notes at [3.7], "even within child protection choices have to be made". Had the local authority made clear in May 2011 that it accepted Dr Lucey's view and that it supported the placement as a long-term outcome and not just an interim care plan, the levels of tension would probably have dropped. Any offer to fund a limited level of legal advice and representation for the aunt, would also have helped.

(6) The offer of £2,000, which would be appropriate for formal advice about an otherwise straightforward adoption, does not meet the needs of this case. It was made after the event and after the aunt had been represented through the goodwill of her representatives for over 18 months.

The discretion to make orders for costs

26. The procedural code contained in the Family Proceedings Rules 2010 has the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved: FPR 1.1. One aspect of dealing with a case justly is by ensuring, so far as is practicable, that the parties are on an equal footing: FPR 1(2)(c).
27. FPR 28 governs costs, and provides that in family proceedings:

28.1.  The court may at any time make such order as to costs as it thinks just.

28. By FPR 28.2, the Civil Procedure Rules 1998 apply to costs in family proceedings with certain modifications. The main difference is that in family proceedings the general rule that the unsuccessful party should pay the costs of the successful party does not apply.
29. Under the CPR the circumstances to be taken into account by the court when exercising its discretion as to costs are set out at 44.3:

44.3(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –

(a) the conduct of all the parties;

(b) …

(c) …

44.3(5) The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and

(d) …

30. Lastly, as a party to the proceedings, the aunt was entitled to a fair hearing. Art. 6 ECHR requires there to be a right of effective access to the court.
31. I must therefore make such order as I think just having regard to all the circumstances, including the conduct of the parties.
32. It is unusual to order costs in children cases. This proposition was stated by Butler-Sloss LJ in Gojkovic v Gojkovic (No 2) [1992] Fam 40 at p 57C, and by Wilson J in Sutton London Borough Council v Davis [1994] 2 FLR 569. In fact, the proposition applied in neither case, the first being a financial case and the second concerning the registration of a child-minder, but the unusual nature of costs orders is well-known to those practising in public or private law children proceedings.
33. "The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party. Thus, even when a local authority's application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties." (Sutton). Wilson J is there referring to the corrosive effect of an order for costs as between family members in private law proceedings, a consideration that does not apply in care proceedings.
34. There are established exceptions to the general proposition. The first, as stated in Sutton is that "the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable." A recent example of an order being made against a local authority that had failed in its duty of disclosure is Kent County Council v A Mother, F and X, Y and Z (IR Intervener) (Costs in Care Proceedings) [2011] EWHC 1267 (Fam) [2011] 2 FLR 1088 (Fam), a decision in which Baker J emphasised the exceptional nature of such orders.
35. The second exception is where the costs are referable to a distinct issue that has been decided in favour of one party, such as at a fact-finding hearing. Instances are Re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350, [2010] 1 FLR 1893 and Kent County Council v A Mother (above).

'

36. A further instance of this kind is Re T (A child) [2010] EWCA Civ 1585. Grandparents who did not qualify for public funding applied for their costs of a fact finding hearing at which they were exonerated. The Court of Appeal, reversing the judge, made an order that the local authority should pay their costs. It said that the judge should have started with "a clean sheet" and not with the general proposition in favour of no order as to costs. That local authority has obtained permission to appeal and the matter will be heard in the Supreme Court later this year. The local authority will argue that it was bound to have pursued the fact-finding as part of its child protection duties and that it was not criticised for its decision to do so.
37. I do not consider that the circumstances in which an order for costs may be made are limited to the two exceptions mentioned above. That would improperly hinder the court in its duty to make an order that is just. Nor do the rules speak of such a limit: on the contrary, they require the court to take account of all the circumstances, and not just the conduct of the parties. Likewise, in Sutton, Wilson J specifically refers to unreasonable conduct as an example of circumstances in which the proposition will not apply.
38. The present case has been a welfare inquiry into C's future, and I therefore start from the proposition that there will normally be no order for costs. To succeed in her application, the aunt must demonstrate that there are unusual or exceptional circumstances that justify departure from that proposition.

Discussion

39. In response to Mr McIlwain's submissions on questions of principle, I find that:

(a) I agree that this case does not fall within the categories of exception identified above, in that there has been no free-standing element to the proceedings and the local authority has not behaved reprehensibly.

(b) I accept that, had the aunt been publicly funded, no application would have been made on behalf of the LSC against the local authority. That would reflect the fact that the state would have performed its obligation to uphold the aunt's effective access to the court in a case where legal representation was indispensable. Here the situation is different. The aunt was not publicly funded and it is in my view doubtful whether her Article 6 rights would have been upheld if she had not been able to be represented.

(c) In this regard, the practice of this and other local authorities in offering appropriate funding as a matter of discretion amounts to a practical acceptance that there will be situations where local authorities need to step in to bridge a funding gap. This discretion, exercised in favour of chosen candidates as adopters, cannot exclude the court's power to make wider provision for those who are chosen late, or those who are never chosen but succeed.

(d) I agree that a local authority should not be treated as a secondary funding authority for litigants who are not entitled to public funding. However, this does not prevent the court from making an order for costs where the circumstances of the individual case make it just. I do not accept the "floodgates" argument that if the aunt is awarded her costs, it would give the green light to any party involved in care proceedings to seek costs against a local authority. Orders for costs will only be made in exceptional cases. Nor do I accept the argument that costs should not be awarded because it might lead local authorities to oppose the grant of party status to relatives because of costs implications, as such a stance would be unprincipled.

(e) To the question, "What would the criteria for awards of costs be?", the answer would be that the court will apply the costs rules in the light of authority. It will normally make no order, but there will be exceptional cases where the configuration and merits of the case point to an award being just.

(f) Overall, Mr McIlwain's arguments understandably address the situation from the standpoint of the local authority, while the task of the court is to balance these arguments with the other circumstances of the case.

Decision

40. I find that this is an exceptional case that justifies an order requiring the local authority to contribute towards the aunt's costs. The combination of the following unusual features, elaborated upon above, takes the case outside the norm:

• The extreme history surrounding C's placement with her aunt (#4-5)

• The importance for C of the placement succeeding (#12)

• The exceptional challenge faced by the aunt in caring for C (#20)

• The need for the aunt to be a party (#21) and to have legal representation (#22)

• The risk to the placement from the poor relationship between the aunt and social services (#23)

• The stance of the local authority, leading to uncertainty about the outcome until a very late stage (#25)

• The reduction in the length of the final hearing as a result of the aunt being represented (#24)

41. In this case, departure from the usual outcome is warranted by the need for some degree of equality of arms between a state body and an unrepresented litigant who is of cardinal importance to the welfare of the child in question, and where the local authority has elected to put her to the test over a protracted period.
42. Also, while costs do not follow the event, the court is entitled to have some regard to the trajectory of the proceedings. In November 2010, the local authority strongly opposed placement with the aunt: in May 2012, she was granted an adoption order. To note this outcome is not to be critical of the local authority but to recognise how much the aunt has achieved.
43. I have rejected the proposition that costs can only be awarded where there is unreasonableness on the part of the local authority. That is neither what the rules provide, nor what the authorities say.
44. However, as to the amount of the contribution, I do not consider that it would be right to require the local authority to pay all of the aunt's costs. Taking account of all the circumstances, the appropriate contribution is one half.
45. I invite submissions as to whether the costs should be assessed summarily or subjected to detailed assessment, with its attendant costs. In this regard, the submission of the local authority that a distinction can be drawn between correspondence about the aunt's position as a foster carer and her position as a litigant is only likely to be made good where the distinction can be clearly seen. The aunt's position as both a family foster carer and a putative permanent carer has been closely interlinked and it will generally be artificial to attempt to separate one role from the other. However, the local authority is entitled to draw attention to any instances where the contrary can be clearly shown.
46. My order will be that the local authority pays one half of the aunt's costs since 5 September 2011, including half of the costs arising from this costs application, on the standard basis.
47. Finally, although it forms no part of my decision in this case, I observe that the approach to costs may evolve in the light of the changes that are to follow the Family Justice Review. To eliminate delay, the court will, where appropriate, need to use every weapon at its disposal. The sword of costs may need to be more frequently unsheathed in both private law and public law proceedings.
____________________