The poor conduct of a local authority and children’s guardian were not sufficiently bad to justify a costs order in the type case where generally no orders for costs are made, the Court of Appeal has ruled.
In January, the appeal court allowed an appeal by a foster carer against a care order made by HH Judge Rowe QC in respect of a girl, R, who had been in her care for 14 months. The judges made several criticisms of both the local authority and the guardian.
The appellant then applied for an order that her costs be paid by the local authority and Cafcass.
In RP (Appeal costs) [2019] EWCA Civ 680, Lord Justice Baker noted that the approach to be followed when considering applications for costs in cases involving children has been considered on two occasions by the Supreme Court – Re T [2012] UKSC 36 and Re S [2015] UKSC 20 – confirming the general practice that, in proceedings relating to children, there is no order as to costs save in exceptional circumstances.
These were defined by Wilson J (as he then was) in Sutton London Borough Council v Davis (No 2) [1994] 2 FLR 569 as being where “the conduct of a party has been reprehensible or the party’s stance has been beyond the band of what is reasonable”.
Baker LJ said that although the conduct of the local authority and guardian “fell short of the standard expected in care proceedings”, it did not meet the Sutton test. It was, he said, “a very complex case involving four children of different ages and different needs” and included considering the options for the children in Poland.
“We recognise that this court has the benefit of hindsight which in not enjoyed by the parties and judge at first instance, where everyone is working under the considerable pressures that arise every day in the family court. Equally, we do not consider that the position adopted by the local authority and guardian with regard to this appeal gives rise to circumstances which warrant the making of a costs order.”
Deirdre Fottrell QC and Tom Wilson (instructed by Goodman Ray) for the appellant, David Fowler (instructed by local authority legal services) for the first respondent, the second respondent appeared in person, Sam King QC and Oliver Jones (instructed by Freeman Solicitors) for the third respondents, and Sandra Fisher (instructed by Beu Solicitors) for the fourth respondent.