In the recent case of Re S (A Child) [2015] UKSC 20 the Supreme Court has allowed an appeal by a local authority against a costs order granted by the Court of Appeal in favour of a Father in care proceedings.
In this case, the father of a young girl aged 7 had successfully appealed against a placement order obtained by a local authority for the child's adoption without his consent. In bringing the appeal against the placement order, the father incurred legal costs assessed in the sum of £13,787. The placement order was overturned by the Court of Appeal on the basis that the Judge had been wrong to make the order without a further assessment of the father and child, and because she had not adequately articulated her reasons. Since then a further assessment had taken place resulting in the child being been placed with the father. The Court of Appeal ordered that the local authority should pay the father's appeal costs because it had resisted the appeal, and in order not to deter a parent from challenging decisions which impact on the most crucial of human relationships.
The local authority subsequently appealed against that decision. The issue for the Supreme Court was whether it was right for the local authority to pay the father's costs of the appeal, given the principle confirmed in In re T (Care Proceedings: costs) [2012] UKSC 36 that in general, in the absence of reprehensible behaviour or an unreasonable stance, local authorities should not be ordered to pay costs in care proceedings on the basis that they should not be deterred from their statutory duty to protect children by bringing proceedings.
The Supreme Court unanimously allowed the appeal by the local authority. It found that the local authority, despite having lost the appeal against the making of care and placement orders, had not behaved unreasonably or reprehensibly in contesting it because it had the support of the guardian, an independent social worker and a psychotherapist. Consequently, the costs order was not justified and should be set aside. The Supreme Court disagreed with the Father's argument that Court's earlier decision in Re T (Children) [2012] UKSC 36 was distinguishable from this case and that the policy considerations which justified a 'no costs' approach to children cases at first instance did not have the same application in relation to appeal costs. The Supreme court has in essence held that Re T has equal application to appeals.
Notwithstanding this, it is clear from Lady Hale's Judgement in Re S that that costs orders against local authorities will continue to be justified in some cases, both at first instance and on appeal if they are deemed to have behaved reprehensibly or to have taken an unreasonable stance in the proceedings (the two categories previously accepted in Re T).
Moreover in her judgement, Lady Hale (delivering the judgment of the Court) also stated that:
'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 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.'
Consequently, it is clear from her Judgement that there may also be other circumstances in which an award of costs (either at first instance or on appeal) might be appropriate where failure to do so might cause hardship to the family and consequently impact on the welfare of children, provided that a local authority was not put in a worse or better position than the private parties.
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