Re T (Children)  UKSC 36,  MHLO 100
A local authority should not be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded; 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. (This case related to care proceedings.)
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CHILDREN — Care proceedings — Costs — Local authority raising serious allegations against interveners in care proceedings — Interveners exonerated following fact-finding hearing — Judge refusing interveners’ application for local authority to pay costs — Whether costs to be awarded against local authority that had not acted unreasonably — Children Act 1989, s 31
In re T (Children) (Care Proceedings: Costs)
B;  WLR (D) 223
SC(E): Lord Phillips of Worth Matravers PSC, Baroness Hale of Richmond, Lord Mance, Lord Dyson, Lord Carnwath of Notting Hill JJSC: 25 July 2012
A local authority should not be liable in care proceedings for the costs of interveners against whom allegations had been reasonably made but which had been held by the court to be unfounded.
The Supreme Court so held in allowing the appeal of the local authority, Kingston upon Hull City Council, against the decision of the Court of Appeal (Wilson, Munby LJJ and Coleridge J)B overturning the decision of Judge Dowse at Kingston upon Hull County Court on 7 May 2010 in care proceedings, pursuant to section 31 of the Children Act 1989, in relation to two children, in which he refused to order the local authority to pay the costs of the children’s grandparents, who intervened in the proceedings after serious allegations against them were raised by the local authority which, after a fact-finding hearing, he held were unfounded.
LORD PHILLIPS OF WORTH MATRAVERS PSC, giving the judgment of the court, said that if, in principle, a local authority should be liable for the costs of interveners against whom allegations had been reasonably made that were held unfounded, then that liability should arise whether or not the interveners were publicly funded. The burden of costs awarded against local authorities in such circumstances was likely to be considerable. When considering whether it was just to make an award of costs against a local authority in such circumstances it was legitimate to have regard to the competing demands on the limited funds of the local authority. In the context of care proceedings it was not right to treat a local authority as in the same position as a civil litigant who raised an issue that was ultimately determined against him. The Children Act 1989 imposed duties on the local authority in respect of the care of children. If the local authority received information that a child had been subjected to or was likely to be subjected to serious harm it had a duty to investigate the report and, where there were reasonable grounds for believing that it might be well founded, to instigate care proceedings. In that respect the role of a local authority had much in common with the role of a prosecuting authority in criminal proceedings. It was for the court, and not the local authority, to decide whether the allegations were well founded. It was a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it was reasonable that those should be investigated by a court justice did not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations were made. Since the 1989 Act came into force, care proceedings had proceeded on the basis that costs would not be awarded against local authorities where no criticism could be made of the manner in which they had performed their duties under the Act. The general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, was one that accorded with the ends of justice and which should not be subject to an exception in the case of fact-finding hearings.
Appearances: Janet Bazley QC, Elizabeth Shaw and Sally Stone, acting pro bono (instructed by Hull City Council Legal Section, Hull) for the local authority; Simon Hirst, acting pro bono (instructed by Sandersons, Hull) for the grandparents; Teertha Gupta QC and Dorothea Gartland, acting pro bono (instructed by CAFCASS Legal Services) for CAFCASS, intervening; Charles Hale and Rebecca Foulkes, acting pro bono (instructed by Freemans) for the Grandparents’ Association, intervening.
Reported by: Jill Sutherland, Barrister.
© 2012. The Incorporated Council of Law Reporting for England and Wales.
39 Essex Street, 'Court of Protection Newsletter' (issue 24, August 2012) ('Although the decision relates to costs in proceedings about children, some of the public policy arguments relied on are equally relevant to the Court of Protection.')