In child care proceedings, it is far from uncommon for very serious allegations (e.g. of sexual abuse against the children) to be made against individuals and those individuals may well wish to contest those allegations. Legal aid is subjected to means testing which is not particularly generous. In the absence of legal aid, a person wishing to mount such a challenge will face formidable problems and there is serious potential for massive injustice to them.
The appeal concerned the liability of a local authority to pay the costs of a party to care proceedings. The actual care proceedings took place in 2010 at Kingston-upon-Hull County Court where a judge refused to make an order for costs in favour of grandparents and against the Hull Council. In 2009, the judge had held a very lengthy fact finding hearing which had been spread over some five and a half weeks ! The grandparents of two children were intervening parties to the fact finding hearing. The grandparents were
of relatively modest means and so they could not obtain legal aid for representation at those proceedings. They mortgaged their home so that they could obtain a lawyer and their costs amounted to some £52,000.
Here is what Lord Justice Wilson said when delivering the the Court of Appeal judgment (paras. 4 to 6 of the 2010 judgment):
- The grandfather is aged 67 and is a retired fire-fighter. The grandmother is aged 63 and works part-time as a bookkeeper. They have exiguous capital and their income from pensions and from the grandmother's part-time work now amounts to about £25,000 per annum net.
- The grandparents decided that they could not adequately defend themselves in person at the massive hearing which was soon to begin and that they should borrow from a building society in order to fund representation by one of the city's family solicitors. I assume that they own their house and that the borrowing was by way of mortgage upon it. At all events they borrowed £55,000 and the fees charged to them by the solicitors for advice and representation at the hearing amount to £52,000. The loan from the building society is repayable over 15 years at the rate of almost £6000 per annum. The difficulty which confronts the grandparents in making the necessary annual repayment needs no emphasis; they say, in my view convincingly, that, without the continued part-time earnings of the grandmother stretching long into the future, they would have no reasonable prospect of making the repayment and of also maintaining themselves even to a fairly basic level in addition to making the repayment.
- In the event, by the long judgment, the judge did not find any of the allegations against the grandparents to be established. Nor did he consign the grandparents to a pool of possible perpetrators of the acts of which they had been accused. On the contrary, he "exonerated" them. Their status as parties to the proceedings was thereupon discharged.
The two children in the care proceedings had alleged that they had suffered sexual abuse by their father and six other men, in which the father’s parents (‘the grandparents’) had colluded.
The six men and the grandparents were joined to the care proceedings as interveners. The judge conducted a lengthy fact-finding hearing, as a result of which he exonerated five of the six men and the grandparents of any such abuse.
The interveners were entitled to be represented at the hearing. The six men qualified for legal aid but the grandparents did not. They incurred costs of £52,000, which they met by taking out a mortgage on their house. At the end of the hearing they applied for an order that the local authority should pay their costs on the ground that they had succeeded in defending the allegations made against them. It was accepted that the local authority had acted reasonably in bringing the proceedings.
The judge refused their application on the basis that it was not usual to order costs in a child case against a party unless that party’s conduct had been unreasonable or reprehensible. The Court of Appeal allowed the grandparents’ appeal, holding that costs could be awarded in respect of discrete fact-finding hearings.
The Supreme Court granted permission to appeal because of the important point of principle raised by the appeal. The Supreme Court heard the appeal on the basis that the grandparents in this case would be allowed to recover their costs whatever the outcome.
The Local Authority's appeal was allowed and held that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of discrete fact finding hearings.
Family proceedings depart from the general rule applicable in civil proceedings that the unsuccessful party will be ordered to pay the costs of the successful party. This is because there are special considerations that militate against the approach appropriate in other kinds of adversarial litigation, particularly where the interests of children are at stake. It is usual in proceedings involving a child for no order to be made in relation to costs.
Care proceedings usually involve allegations of misconduct towards a child by some persons, typically a parent. The object of the proceedings is to reach a decision which is in the best interests of the child.
Often it is necessary to resolve issues of fact which are disputed. The decision whether or not to have a split hearing is one of case management, taken by the court, and cannot affect the principles to be applied by the court when dealing with costs. If it is correct in a particular case to award costs in relation to individual issues of fact this can more easily be done if the costs associated with those issues are incurred in a separate hearing, but this is only relevant to the practicality of such an order.
The question of whether it was just to make an award of costs against a public authority had to be distinguished from the question of whether a litigant’s costs should be publicly funded, which was a matter for Parliament.
The current arrangements might lead to injustice for interveners in the position of the grandparents in the present case, but it did not follow that justice demanded that any deficiency in the provision of public funding should be made up from the funds of the local authority responsible for care proceedings.
Equally, if in principle a local authority should be liable for the costs of interveners who succeed in showing that factual allegations against them are unfounded, this liability should arise whether or not the interveners are publicly funded.
It was legitimate to have regard to the competing demands on the limited funds of the local authority. It was not right to treat it as in the same position as a civil litigant who raises an issue that is ultimately determined against him. A local authority has a statutory duty to investigate reports that a child has been subjected to significant harm and, where there are reasonable grounds for believing that they may be well founded, to instigate care proceedings. In this respect the role of the local authority has much in common with that of a prosecuting authority and it is for the court to determine where the truth lies.
There was no valid basis for restricting the approach of the Court of Appeal in this case to findings of fact in a split hearing and the effect on the resources of local authorities would be significant.
For these reasons the Supreme Court concluded that that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings.
It is worthy of note that the lawyers in this appeal acted pro bono. The Supreme Court noted: "It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono. We would like to express our gratitude for the assistance that they have given."
Clearly, this is very much to the credit of the lawyers involved. Nevertheless, is it right that lawyers needed to act this way in order to get a decision on what is acknowledged by the Supreme Court itself to be an important issue of principle?
Lord Phillips president at the Supreme Court sitting this morning. His term of office as President ends on 30th September 2012 - Supreme Court announcement. The Trinity Law Term ends on 31st July 2012.
See The Guardian ~ Supreme Court: Where there is discord ~ Joshua Rozenberg