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Andrew BainhamThe Supreme Court in Re S (A Child) [2015] UKSC 20 has allowed the local authority’s appeal against a costs order made by the Court of Appeal in favour of the Respondent Father (Re S (Appeal from Care and Placement Orders) [2014] EWCA Civ 135; [2015] 1 FLR 130). Andrew Bainham represented the Father in the Court of Appeal and as leading junior counsel in the Supreme Court.

The Respondent had resisted the authority’s appeal on the basis that the Supreme Court’s earlier decision in Re T (Children) [2012] UKSC 36 was distinguishable 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 disagreed and has in essence held that Re T has equal application to appeals. On appeal, just as at first instance, proceedings relating to children though adversarial in form had inquisitorial features. All parties were contributing to the court’s central task of establishing the child’s best interests. No-one should be deterred from participation by the risk of a costs order being made against them.

The decision however is subtle and it is clear that costs orders against local authorities will continue to be justified in some cases, both at first instance and on appeal. The headlines from the perspective of parents and their advisers are as follows:

  • It is possible for a local authority (and indeed others) to take a reasonable stance at first instance but an unreasonable one on appeal. Accordingly, local authorities may be liable in costs if they unreasonably contest an appeal. In Re S itself the Court found that the authority, despite having lost the appeal against the making of care and placement orders, did not behave unreasonably in contesting it because it had the support of the guardian, an independent social worker and a psychotherapist. Accordingly, the costs order was not justified and should be set aside.
  • The exceptional categories under which the courts may depart from the ‘no costs’ principle in children cases are not closed. This opens up the possibility that costs orders may be sought, either at first instance or on appeal, for reasons other than the two categories previously accepted in Re T of reprehensible behaviour or taking an unreasonable stance in the proceedings. Lady Hale said that she did not understand Lord Phillips in Re T as ‘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’.
  • The Court has made it plain that it may be appropriate to make a costs order in children cases where failure to do so might cause hardship to the family and impact on the welfare of children within it. In a passage which is likely to be cited and relied upon many times, Lady Hale (delivering the judgment of the Court) puts it this way:

‘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.’

The Supreme Court’s decision is to be the subject of a News Item by Andrew Bainham in the forthcoming May edition of Family Law. The June number of the same journal will contain an article jointly written by Andrew Bainham and Hannah Markham (junior counsel for the local authority in the Supreme Court) on the implications of the decision from the different perspectives of parents and local authorities. Appropriate links to this website will be provided when they are published. Their article on the Court of Appeal’s decision is at (2014) Family Law 991.

Republished with kind permission. This post originally featured on St Philips Chambers’ website and can be found here.

Andrew Bainham’s biography can be found here.