Supreme Court restores costs protection for local authorities in care proceedings

Local authorities should not have to pay the costs of a party to care proceedings against whom allegations have reasonably been made but eventually prove unfounded, the Supreme Court has ruled

It was a rare example of the Supreme Court entertaining an appeal solely about costs because of the important point of principle it raised

The proceedings in T (Children) [2012] UKSC 36 related to two children, whose parents were separated

The local authority applied for a care order in response to allegations by the children 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 the

grandparents’ 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

However, the Court of Appeal allowed the grandparents’ appeal, holding that costs could be awarded in respect of discrete fact-finding hearings

Permission to appeal was granted on the basis that, whatever the result, the grandparents’ entitlement to recover their costs as a result of the order of the Court of Appeal would not be disturbed

The Supreme Court, led by the president, Lord Phillips, unanimously overturned the Court of Appeal

It 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

Lord Phillips said that in the context of care proceedings, the statutory duty on local authorities to take action, if they have reasonable grounds for doing so, meant that it is not the same as a civil litigant who raises an issue that is ultimately determined against him

The president also observed that it was “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 they have given”

The council was represented by Janet Bazley QC, Elizabeth Shaw and Sally Stone and the respondent by Simon Hirst, instructed by Sanderson Solicitors

There were two interveners: the Children and Family Court Advisory and Support Service (CAFCASS), represented by Teertha Gupta QC and Dorothea Gartland, and The Grandparents Association, represented by Charles Hale and Rebecca Foulkes, instructed by Freemans Solicitors