Costs in Family Law (Children) Cases – Guidance

Costs in Family Law (Children) Cases – Further Guidance provided by the Supreme Court.

It has long been established that it was entirely usual not to award the costs on a child case against the party, unless it could be shown that a particular party’s conduct had been either “reprehensible” or that such parties stance had been unreasonable; see Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and more recently In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.

That position was further confirmed in the Family Procedure Rules 2010 (SI 2010/2955) (“FPR”), with Part 28 consolidating the previous case and statute law (including the Family Proceedings Rules 1991 (SI 1991/1247) in respect of costs), which came into force on 6 April 2011.

FPR 28.1 stipulates that

“The court may at any time make such order as to costs as it thinks just”

however such discretion is not unfettered as FPR 28.2 applies the majority of the costs rules contained within the CPR to family proceedings, other than financial remedy proceedings, with a few exceptions (most notably CPR 44.3(2)).

Thus, the provisions of CPR 44.3 (4) & (5) are relevant to family proceedings such that the conduct of any of the parties can be taken into account in deciding what order to make, with particular consideration to a number of factors, namely and including

“(5)… (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) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.”

and in this regard such provisions have been utilised in the past by the courts to require local authorities to pay costs where they have been judged to have been incurred by the local authority acting in an unreasonable or reprehensible fashion. Notable instances include In re X (Emergency Protection Orders) [2006] 2 FLR 701 and Coventry City Council v X, Y & Z (Care Proceedings: Costs) [2011] 1 FLR 1045.

Indeed, more recently the Supreme Court ruled in Re T (Children) [2012] UKSC 36 that

“…the general practice of not awarding costs against a party, including the local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice…”

and as such the position accordingly remained unchanged.

The matter has, once more, come back before the Supreme Court, which whilst giving consideration to the matter of Re T (Children) mentioned above, held in Re S (Children) (Care proceedings: proper evidence for placement order) [2015] UKSC 20 that the previous approach should remain in the absence of anything unreasonable or reprehensible. The Supreme Court went further to provide additional guidance as a result of the particular circumstances of this case.

The matter of Re S (Children) involved a successful appeal to the Court of Appeal by her father, against a placement order made in the County Court in respect of his daughter. Upon that appeal, the Court of Appeal found that the judge at first instance had been wrong to make such an order without a further assessment of the situation and had not adequately articulated their reasons to proceed to make such an order, as a result of which the local authority was ordered to pay the father’s costs of the appeal, which were assessed in the sum of £13,787.70.

The local authority appealed the costs order (the father had been funding the appeal privately as non-means tested legal aid was not available in care proceedings on appeal) is an important matter of principle, but conceded that, whatever the outcome, they would not seek to recover the costs awarded and paid to the father in the court below.

The Supreme Court was asked to determine to issues, namely

i. whether there were any other circumstances, beyond those identified in Re T (Children) in which a costs order might be justified, namely reprehensible behaviour or an unreasonable stance; and

ii. whether there was any reason to depart from the general approach in Re T (Children) in the instant matter.

The Court found that

“31… [Lord Phillips in Re T was not]…necessarily intending to rule out the possibility that there might be other circumstances in which an award of costs in care proceedings might be appropriate and just. That would be to ascribe to para 44 of the judgment the force of a statutory provision. Such a rigid rule was unnecessary to the decision in that case and cannot be treated as its ratio decidendi.

32. On the other hand, it was necessary to the decision in that case that local authorities should not be in any worse position than private parties when it comes to paying the other parties’ costs. There is an attraction in regarding local authorities in a different light from private parties, because of their so-called “deep pockets”. But, as Lord Phillips observed, at para 34,

“Local authorities have limited funds. Their costs in relation to care proceedings are met from their children’s services budget. There are many other claims on this budget. … No evidence is needed, …, to support the proposition that if local authorities are to become liable to pay the costs of those [whom] they properly involve in care proceedings this is going to impact on their finances and the activities to which these are directed. The court can also take judicial notice of the fact that local authorities are financially hard pressed, …”

While it is true that appeals are comparatively rare and their costs comparatively low compared with the costs of care proceedings generally, that is not by itself a good reason for making an exception in their case.

33. But nor should local authorities be in any better position than private parties to children’s proceedings. The object of the exercise is to achieve the best outcome for the child. If the best outcome for the child is to be brought up by her own family, there may be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In other words, the welfare of the child would be put at risk if the family had to bear its own costs. In those circumstances, just as it may be appropriate to order a richer parent who has behaved reasonably in the litigation to pay the costs of the poorer parent with whom the child is to live, it may also be appropriate to order the local authority to pay the costs of the parent with whom the child is to live, if otherwise the child’s welfare would be put at risk. (It may be that this is one of the reasons why parents are automatically entitled to public funding in care cases.) …”

and further that whilst there was no suggestion that the local authority had behaved in any way reprehensibly, any suggestion that they had behaved unreasonably in relation to the appeal by resisting it despite deficiencies in the first instance judgement was “unwarranted”.

The Supreme Court also considered the question as to whether any refusal to award costs might indirectly create hardship for the child, having already recognised the overriding principle that the child’s interests and welfare must be of paramount importance.

In this regard, it would have considered that such a question

“37…would have required the Court of Appeal either to reserve the costs of the appeal until the outcome of the assessment had been known and the child’s future decided or to remit the question of the appeal costs to be decided at the future first instance hearing. At that point it would have been clear where Amelia was to live and evidence could have been filed as to the impact upon her of the father having to bear his own costs in the appeal. It has not been suggested that that would have been an appropriate course in this case.”

and the court further declined to comment (at 38) as to whether or not any proportion of the father’s costs ought to be paid by the child under the legal aid certificate.

Accordingly, the court found that

“39…none of the exceptions to the general approach applicable to awards of costs in children’s cases applies in this case…”

and allowed the appeal.