Hilary Term
[2015] UKSC 20
On appeal from: [2014] EWCA Civ 135
JUDGMENT
In the matter of S (A Child)
before
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
25 March 2015
Heard on 28 January 2015
Appellant Respondent
William J Tyler QC Andrew Bainham
Hannah M Markham Amy Stout
Kate Makepeace Grieve
(Instructed by HB Public (Instructed by Clifton
Law) Ingram LLP)
Intervener (Access to
Justice Foundation)
Lance Ashworth QC
Cyrus Larizadeh
Dorothea Gartland
(Instructed by Freemans
Solicitors)
LADY HALE: (with whom Lord Kerr, Lord Wilson, Lord Hughes and Lord
Toulson agree)
1. This case is about the proper approach to ordering the unsuccessful party to
pay the costs of a successful appeal in cases about the care and upbringing of
children. It arises in the specific context of a parent’s successful appeal to the Court
of Appeal against care and placement orders made in a county court. But that issue
obviously has to be seen in the wider context of appeals in children’s cases generally.
This case
2. These are care proceedings concerning the four children of Ms A, a girl now
aged 13, a boy aged 12, a girl aged seven and a boy aged three. We are concerned
only with the seven year old, whom I shall call Amelia. The respondent to this appeal
is the father of Amelia and her older brother. He is also the social father of the oldest
child, who was born during his marriage to the children’s mother. The mother comes
from Portugal and the father comes from Nepal. They married in 2002 and separated
in 2007, before Amelia was born. The father is not the biological, social or legal
father of the youngest child. As it happens, the oldest and youngest have the same
biological father, but he has played little part in their lives or in these proceedings.
3. From May 2009 there were increasing concerns about the presentation and
behaviour of the children in their mother’s care. Care proceedings were eventually
brought in January 2012 and in November 2012 Her Honour Judge Karp found that
there had been a serious lack of supervision and neglect of the children; they had
suffered physical injuries from each other as a result of not being properly
supervised; the mother was unable to meet their emotional, developmental and
educational needs; they were at risk of sexual abuse because of their mother’s
inability to safeguard them from men allowed into the home about whom she knew
little; and the two oldest had shown inappropriate sexual behaviour. She found,
therefore, for the purpose of the “threshold conditions” in section 31(2) of the
Children Act 1989, that they had suffered or were likely to suffer significant harm
owing to a lack of proper parental care. This is conceded by the father.
4. The mother was ruled out as a future carer for any of the four children. The
father had had only limited contact with the family since separating from the mother
and was not implicated in her neglect of the children during that time. He had since
remarried. When the proceedings were begun, it was agreed that the older boy would
live with his father and his new wife under an interim supervision order. In breach
of his agreement with the local authority, however, the father left the boy with the
Page 2
mother for a short time while he went to work in Norway. And in May 2012 the
father asked the local authority to take the boy back into foster care because of his
challenging behaviour. He was soon joined by Amelia and their older sister, who
had been removed from their mother. They remained together as a sibling group
with the same foster family for a year, until the two oldest had to be separated
because of their sexual behaviour together.
5. Between August and October 2012 the father and his wife were assessed by
an independent social worker as potential carers for the three older children,
including Amelia. The first assessment was positive, but the social worker had not
been told that the wife was now pregnant. At that stage, a consultant child and
adolescent psychiatrist had reported that Amelia’s development appeared normal for
a child of her age. An updating assessment, conducted between October and
December 2012, became negative, largely because of the couple’s lack of candour
and the father’s lack of insight into the need to be “resilient, consistent and able to
implement firm boundaries” when looking after children who had suffered as these
children had suffered.
6. The father and his wife separated in February 2013, before their child was
born. The father decided to move permanently to Norway, where he had obtained
steady and well-paid employment and spacious accommodation. He asked to be
assessed there as a carer for all three children, but both the local authority and the
children’s guardian resisted that. The local authority’s plan was for long term
fostering for the two oldest children and a closed adoption (that is without contact
with the birth family) for the two youngest. The children’s guardian had originally
wanted the three children to stay with the foster family which had looked after them
for a year, but when that placement failed because of the older children’s sexual
behaviour with one another, he supported the local authority’s plan.
7. A placement order was made in relation to the youngest child in February
2013. (This has now been implemented; he was adopted in May 2014.) At the final
hearing in relation to the elder three children in July 2013, the local authority sought
a placement order for Amelia, by now aged five. The father opposed this because it
would result in her losing all her established family relationships with her parents
and her siblings. He had maintained good contact with the children since his move
to Norway and asked to be assessed as her sole carer. This was opposed by the local
authority and the children’s guardian. Amelia had been assessed by a social worker
and family therapist in 2013 (in contrast to the view of the child psychiatrist in late
2012) as having a “high level of emotional and behavioural need” and their view
was that the father did not have the capacity to meet this. Judge Karp accepted their
opinions and made a placement order authorising Amelia’s placement for adoption
without her father’s consent.
Page 3
8. The father appealed. In the meantime, in September 2013, the Court of
Appeal had delivered judgment in In re B-S (Children) (Adoption Order: Leave to
Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, emphasising the need for the
court to evaluate all the options for the child’s future where adoption was proposed,
analysing the pros and cons of each in the light of the paramount consideration of
the child’s future in the long term. The father’s appeal was allowed: [2014] EWCA
Civ 135, [2015] 1 FLR 130. The Court of Appeal held that the judge had been
“wrong to make the order without further assessment of the situation of the father
and child and in any event did not adequately articulate her reasons to proceed to
make a placement order in the circumstances of this case” (para 4). We are told that
the process of assessing the father and increasing his contact with Amelia since then
has been successful and she has now been placed with him in Norway under a child
arrangements order.
9. The issue before us is not whether the Court of Appeal was right to allow the
appeal. The issue is whether it was right to order the local authority to pay the
father’s costs of the appeal (assessed in the sum of £13,787.70). The father had
funded it privately, the non-means-tested legal aid which is available to all parents
in care proceedings not being available on appeal. It was not suggested that the local
authority had behaved reprehensibly in relation to the child or unreasonably in the
stance taken at first instance (para 30). But they had resisted the appeal while
recognising the deficiencies in the judgment in the lower court (para 32). A parent
should not be deterred from challenging decisions “which impact upon the most
crucial of human relationships” (para 30). The decision in this court in In re T (Care
Proceedings: Costs) [2012] UKSC 36, [2012] 1 WLR 2281 was distinguishable and
the court’s discretion broad (para 31).
10. In their application for permission to appeal, the local authority made it clear
that, whatever the outcome, they would not seek to recover the costs awarded and
paid to the father. They argued that the case raises matters of public interest which
merit consideration by this court, but “it is not intended that Mr S should suffer
financial detriment as a result”. Permission to appeal was given on that basis. The
court is accordingly very grateful to Dr Bainham and the father’s legal team, who
acted for him pro bono, thus enabling the case to be properly and fully argued.
In re T (Care Proceedings: Costs)
11. In In re T, care proceedings were brought in respect of two children who had
made allegations of sexual abuse against their father and a number of men, in which
it was alleged that their paternal grandparents had colluded. The grandparents
intervened in the proceedings in order to refute the allegations. As interveners they
did not qualify for the non-means-tested legal aid which is available to parents. Their
means were modest but above the legal aid threshold. They therefore had to borrow
Page 4
to pay for their own representation. The allegations were investigated at a “split”
fact finding hearing, at which the grandparents were exonerated, although no
criticism was made of the local authority for putting the allegations before the court.
The Supreme Court held that the trial judge had been correct not to make an order
that the local authority pay the grandparents’ costs.
12. Lord Phillips, giving the judgment of the court held, at para 44, that
“the general practice of not awarding costs 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 was irrelevant whether or not a party was legally aided. If the grandparents were
entitled to their costs, so too should have been the five publicly funded men who
were also exonerated. The local authority had a statutory duty to protect the children,
by bringing proceedings where appropriate. It was for the court, and not for the local
authority, to decide whether or not the allegations were true. Local authorities should
not be deterred from putting such cases before the court by the prospect of having
to pay the costs of those who were exonerated. This would reduce the funds available
to provide for children in need. There was no warrant for distinguishing between
hearings where fact finding was “split” from deciding what was best for the child
and hearings where all issues were dealt with together.
13. There are, of course, several distinctions between that case and this. In re T
was a first instance trial, indeed that part of the care proceedings trial in which the
essential facts are found, before moving on to discuss what solution will best serve
the interests of the child in the light of those facts. Costs at first instance are governed
by the Family Procedure Rules 2010, Part 28. This case concerns an appellate
hearing, in which the essential facts were not in dispute, and the issue was what
would be best for the child. Costs on appeal are governed by the Civil Procedure
Rules, Part 44. In re T concerned the costs to be borne by interveners, indeed
interveners whose interest was in clearing their names rather than in looking after
the child. This case concerns the costs to be borne by a parent of the child, indeed a
parent who wishes to undertake the care of the child himself.
14. In order to decide whether those are material distinctions, it is necessary once
again to examine the issue of costs in children’s cases from first principles.
Page 5
Costs in children’s cases
15. Under section 51 of the Senior Courts Act 1981, costs in the civil division of
the Court of Appeal and in the family court are “in the discretion of the court” but
subject to the rules of court. Under the Civil Procedure Rules, the “general rule” in
civil proceedings is that the “unsuccessful party will be ordered to pay the costs of
the successful party” (CPR, rule 44.2(2)(a)). However, this general rule does not
apply to first instance proceedings about children (FPR rule 28.2(1) disapplies CPR
rule 44.2(2)). Nor does the general rule apply to proceedings in the Court of Appeal
in connection with proceedings in the Family Division of the High Court or from a
judgment, direction, decision or order in any court in family proceedings (CPR, rule
44.2(3)).
16. However, CPR 44.2(4) and (5) do apply to children’s proceedings both at
first instance and on appeal:
“(4) In deciding what order (if any) to make about costs, the court will
have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if
that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is
drawn to the court’s attention, and which is not an offer to
which costs consequences of Part 36 apply.
(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 ... any
relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or
contest a particular allegation or issue;
Page 6
(c) the manner in which a party has pursued or defended its case
or a particular allegation or issue; and
(d) whether a claimant who has succeeded in the claim, in
whole or in part, exaggerated its claim.”
17. As was pointed out in In re T, rule 44.2(4)(b) is relevant in a situation where
the general rule applies but has no direct relevance where it does not (para 11). This
is not, of course, to say that success or failure is irrelevant in children’s cases: no-
one has suggested in this case that the successful party should have to pay the
unsuccessful party’s costs (although, as will be seen, there may be circumstances
where this would be appropriate). Nor does rule 44.2(4)(c) readily fit the conduct of
children’s cases, save as an aspect of the general desirability of the parties co-
operating and negotiating to reach an agreed solution which will best serve the
paramount consideration of the welfare of the child. As such, it is part of the general
conduct of the proceedings, some aspects of which are listed in rule 44.2(5).
18. As long ago as Gojkovic v Gojkovic (No 2) [1992] Fam 40, at 57B, the Court
of Appeal observed that it was unusual to make an order for costs in children’s cases.
In Keller v Keller and Legal Aid Board [1995] 1 FLR 259, at 267-268, Neill LJ went
further:
“In the last decade, however, it has become the general practice in
proceedings relating to the custody and care and control of children to
make no order as to the costs of the proceedings except in exceptional
circumstances.”
He did, however, go on to say that it was “unnecessary and undesirable to try to limit
or place into rigid categories the cases which a court might regard as suitable for
such an award”.
19. Nevertheless, the cases which might be regarded as suitable may be deduced
from the reasons why the courts have adopted the “no costs” approach. The classic
explanation is that given by Wilson J in Sutton London Borough Council v Davis
(No 2) [1994] 1 WLR 1317, at 1319:
“Where the debate surrounds the future of a child, the proceedings are
partly inquisitorial and the aspiration is that in their outcome the child
is the winner and indeed the only winner. The court does not wish the
spectre of an order for costs to discourage those with a proper interest
in the welfare of the child from participating in the debate. Nor does
Page 7
it wish to reduce the chance of their co-operation around the future life
of the child by casting one as the successful party entitled to his costs
and another as the unsuccessful party obliged to pay them. 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 are 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.”
20. Whenever a court has to determine a question relating to the upbringing of a
child, the welfare of the child is the court’s paramount consideration: Children Act
1989, section 1(1). This applies just as much to care proceedings brought to protect
a child from harm as it does to disputes between parents or other family members
about the child’s future. Although the proceedings are adversarial in form, they have
many inquisitorial features. An application cannot be withdrawn without the court’s
consent (FPR, rule 29.4). The court is not bound by the cases put forward by the
parties, but may adopt an alternative solution of its own. The court is not bound by
the choice of evidence put forward by the parties, but can decide for itself what
evidence it wishes to hear. The court is very often assisted by the independent
investigations and reports of the family court reporter (in private law cases) or the
children’s guardian (in care and adoption proceedings) and other experts. Even in
care proceedings, there are many possible outcomes available to the court. Thus, for
example, in a case such as this, the available outcomes ranged from a closed
adoption with no contact (other than letterbox contact) with the birth family to the
child going to live with her father with no further intervention by the local authority.
In between could be, for example, an open adoption, a special guardianship order,
long term fostering under a care order with only limited contact with the birth family,
medium term fostering with increasing contact with a view to restoring the child to
her birth family in due course, placement with the birth family under a care order,
placement with the birth family under a supervision order together with a child
arrangements order, a child arrangements order or even no order at all. It can readily
be seen, therefore, why in such proceedings there are no adult winners and losers –
the only winner should be the child.
21. Furthermore, it can generally be taken for granted that each of the persons
appearing before the court has a role to play in helping the court to achieve the best
outcome for the child. It would be difficult indeed for a court to decide how to secure
that the child has a meaningful relationship with each parent without hearing from
them both. It would be difficult indeed for a court to decide the best way of
protecting a child from the risk of harm without hearing from her parents and those
whose task it is to protect her. That is why parents are compellable witnesses in care
proceedings, even when it is alleged that they have committed criminal offences.
No-one should be deterred by the risk of having to pay the other side’s costs from
playing their part in helping the court achieve the right solution.
Page 8
22. It can also generally be assumed that all parties to the case are motivated by
concern for the child’s welfare. The parents who dispute with one another or with
the local authority over their children’s future do generally love their children dearly
and want the best for them as they see it. There are of course some wicked,
neglectful, selfish or merely misguided parents who are not motivated to do their
best for their children, but these are not the generality of parents, even those whose
children are the subject of care proceedings. Local authorities are not motivated by
love, in the way that parents are motivated by love, but they do have statutory duties
to investigate and take action to protect children if there is reasonable cause to
suspect them to be suffering or likely to suffer significant harm: Children Act 1989,
section 47. They will be severely criticised by press and public alike if they fail to
take action when they should have done.
23. Another consideration is that, in most children’s cases, it is important for the
parties to be able to work together in the interests of the children both during and
after the proceedings. Children’s lives do not stand still. Their needs change and
develop as they grow up. The arrangements made to cater for those needs may also
have to change. Parents need to be able to co-operate with one another after the case
is over. Unless there is to be a closed adoption they also need to co-operate with the
local authority and the people who are looking after their children. The local
authority need to be able to co-operate with them. Stigmatising one party as the loser
and adding to that the burden of having to pay the other party’s costs is likely to
jeopardise the chances of their co-operating in the future.
24. There is one final consideration. In certain circumstances, having to pay the
other side’s costs, or even having to bear one’s own costs, will reduce the resources
available to look after this child or other children. Thus, for example, if a mother
who is bringing up the children on modest means had not only to bear her own costs
but also to pay the father’s costs, when unsuccessfully resisting his application for
more contact with the children, the principal sufferers might well be the children.
Nor can it be ignored that, if local authorities are faced with having to pay the
parents’ costs as well as their own, there will be less in their budgets for looking
after the children in their care, providing services for children in need, and protecting
other children who are or may be at risk of harm.
25. On the other hand, there is one consideration which cannot be taken into
account. The automatic availability of non-means-tested and non-merits-tested
public funding for parents at first instance in care proceedings has masked the issue.
It has only surfaced on appeal, as here, or for interveners, where public funding is
means-tested. But the question of whether it is just to make an order for costs should
as a matter of principle be determined irrespective of whether any of the parties are
publicly funded. As Baker J put it in G v E (Costs) [2010] EWHC 3385 (Fam),
[2011] 1 FLR 1566, para 39. “Gone are the days when it is appropriate for a court
to dismiss applications for costs on the basis that it all comes out of the same pot”.
Page 9
(The consequences of making a costs order for or against a publicly funded litigant
are a separate matter.) Thus, as Lord Phillips pointed out in In re T, at para 41, if in
principle the local authority should be liable in costs to interveners against whom
allegations, reasonably made, have been held to be unfounded, this liability should
arise whether or not those interveners were publicly funded. The other five men who
were exonerated in that case should also have got their costs. Parents, automatically
publicly funded, who successfully resist care proceedings would also get their costs.
It might even be said that successful local authorities should get their costs against
the parents (or interveners) irrespective of public funding.
26. All the reasons which make it inappropriate as a general rule to make costs
orders in children’s cases apply with equal force in care proceedings between
parents and local authorities as they do in private law proceedings between parents
or other family members. They lead to the conclusion that costs orders should only
be made in unusual circumstances. Two of them were identified by Wilson J in
Sutton London Borough Council v Davis (No 2): “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: Havering London Borough Council v S [1986] 1 FLR 489 and
Gojkovic v Gojkovic [1992] Fam 40, 60C-D” (p 1319). Those were also the two
circumstances identified in In re T, at para 44.
Should this case be distinguished?
27. Two questions arise: first, is there any reason to depart from the general
approach in In re T in this case; and second, are there any other circumstances,
beyond the two identified in In re T, in which a costs order might be justified?
28. It cannot be a valid distinction that the people claiming costs in In re T were
interveners wishing to clear their names rather than parents wishing to care for their
children. All the reasons why costs orders are inappropriate in children’s cases apply
much more strongly to parents and local authorities than they do to such interveners.
The fact that parents are resisting the claim of the state to take their children away
from them is undoubtedly relevant, but it is relevant to whether one of the exceptions
should apply. As a general proposition, I would accept Dr Bainham’s argument that
parents are always entitled to resist the claim of the state to remove their children
from them. They will usually be reasonable in doing so. They should not have to
pay the local authority’s costs if they lose. But it does not follow from that that if
the local authority lose, they are unreasonable in seeking to protect the child: that
will all depend upon the particular circumstances of the case.
29. Nor in my view is it a good reason to depart from the general principle that
this was an appeal rather than a first instance trial. Once again, the fact that it is an
Page 10
appeal rather than a trial may be relevant to whether or not a party has behaved
reasonably in relation to the litigation. As Wall LJ pointed out in EM v SW, In re M
(A Child) [2009] EWCA Civ 311, there are differences between trials and appeals.
At first instance, “nobody knows what the judge is going to find” (para 23), whereas
on appeal the factual findings are known. Not only that, the judge’s reasons are
known. Both parties have an opportunity to “take stock” and consider whether they
should proceed to advance or resist an appeal and to negotiate on the basis of what
they now know. So it may well be that conduct which was reasonable at first instance
is no longer reasonable on appeal. But in my view that does not alter the principles
to be applied: it merely alters the application of those principles to the circumstances
of the case.
30. Secondly, however, are there circumstances other than reprehensible
behaviour towards the child or unreasonable conduct of the proceedings which
might justify a costs order in care proceedings? It is clear from the authorities cited
above that there may be other such circumstances in private law proceedings
between parents or family members. Should care proceedings be any different?
31. I do not understand that Lord Phillips, giving the judgment of the court in In
re T, was 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, …”
Page 11
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.)
Pro bono costs
34. The Access to Justice Foundation (whose legal team has also acted pro bono)
has helpfully intervened, principally in order to argue that the principles applicable
to pro bono costs orders should be the same as those applicable in other cases. Under
section 194 of the Legal Services Act 2007, the court may make a pro bono costs
order in favour of the Access to Justice Foundation in respect of legal representation
which has been provided free of charge. In making such an order the court has to
have regard to whether it would have made a costs order had the pro bono
represented party been represented on a fee paying basis and if so what such an order
would have been (section 194(4)). In In re E (B4/2014/0146), the Court of Appeal
made a pro bono costs order against a local authority which had unsuccessfully
opposed a father’s appeal in care proceedings. In a short written ruling, they
explained that they did so on the basis that this created an exception to the general
position:
“There is a public interest in the Bar Pro Bono Unit being
compensated on a reasonable basis by an award of costs where such
an award is available under the legislation.”
The Foundation argues that it was right to make the order but the reasoning was
wrong. The general position should be that local authorities are ordered to pay the
costs of parents who successfully appeal in care proceedings. Pro bono costs should
be no exception. However, we have decided that the general position should be that
local authorities, like any other party to children’s proceedings, should not be
Page 12
ordered to pay the costs. The logic of the Foundation’s argument is that no exception
should be made for pro bono costs. Indeed, it would be hard to reconcile such an
exception with section 194(4), but the point does not arise in this case.
Application in this case
35. It is not suggested that the local authority have behaved in any way
reprehensibly towards these children or their parents. It is not a case like A and S
(Children) v Lancashire County Council (Costs) (No 2) [2013] EWHC 851 (Fam),
[2013] 2 FLR 122, where the local authority’s conduct towards the children over
many years was “blatantly unlawful and unreasonable … and led inexorably to
substantial litigation” (para 22). Indeed, the only criticism which could be levied
against them was that they might have taken action to protect these children earlier
than they did (see para 10 of the Court of Appeal’s judgment).
36. There is, perhaps, a faint suggestion (see para 32 of the Court of Appeal’s
judgment) that the local authority behaved unreasonably in relation to the appeal, by
resisting it despite the deficiencies in the first instance judgment. In this case, I
consider any such suggestion to be unwarranted. It is true that Judge Karp had not
gone through the pros and cons of the various possibilities in the detail expected
since the judgment in In re B-S. But had the Court of Appeal considered that she had
reached the right conclusion on the merits of the case, I have little doubt that they
would have remedied this deficiency. The crux of the matter is that they considered
that there should have been an assessment of the father’s ability to care for his
daughter in Norway. It is not difficult to understand why: there were several
positives in his favour and the evidence of Amelia’s particular needs was
contentious. But neither is it difficult to understand why the local authority
maintained their stance, supported as it was by the children’s guardian as well as the
independent social worker and the psychotherapist, that Amelia should be placed for
adoption. The Court of Appeal would have been surprised indeed had the local
authority failed to respond to the appeal (and risked the criticism incurred by the
local authority which failed to respond to application for permission to appeal in In
re S (Children) Care Proceedings: fact-Finding Hearing) [2014] EWCA Civ 638,
[2014] 3 FCR ). In the circumstances, it was also in my view reasonable of them to
have maintained the stance that they had taken at first instance.
37. As to the question of whether a refusal to award costs might indirectly create
hardship for the child, this 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
Page 13
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.
38. In these circumstances, it is unnecessary to address the alternative argument
mounted by the local authority, that the costs should have been apportioned between
the authority and the children’s guardian, as both were opposing the appeal, although
the guardian took no part in the hearing. We note that the Legal Aid Agency has
expressed the view that they “do not think that there is any lawful way that a
proportion of the father’s costs can be paid by the child under his certificate”. That
issue is not before us and I would prefer to make no comment.
Conclusion
39. For all those reasons, none of the exceptions to the general approach
applicable to awards of costs in children’s cases applies in this case. The appeal
should be allowed and the costs order made in the Court of Appeal set aside (the
local authority having given the assurance referred to in para 10).
Page 14
