Supreme Court sets aside care costs order

Family Law|March 25th 2015

The Supreme Court has set aside an order requiring a local authority to pay the legal costs from a care case.

In the Matter of S concerned the adoption of a six year-old girl. Her mother is Portuguese and her father is from Nepal but now works in Norway. In 2009 the local authority became concerned that her mother was failing to properly care for the girl, referred to in the judgement as ‘Amelia’, as well as her three siblings. She seemed unable to meet their emotional and educational needs and regularly exposed them to unnecessary risk by allowing men to come into her home.

When Amelia was officially taken into care, her father appealed, claiming the case was not based on sufficient evidence and that the authority had fully considered the alternatives to adoption. He was successful. Lady Justice Macur sent the case back to the lower courts for a rehearing and unusually, ordered the authority to pay the father’s legal costs of £14,000. The father was of “limited means”, said the Judge, and the authority had resisted the appeal despite acknowledging weaknesses in the original care ruling.

Normally for costs to be awarded in a case involving children, it is necessary to show that the losing engaged in reprehensible or unreasonable behaviour, but the authority was not found to have done either.

The authority appealed to the Supreme Court. Ruling in its favour, Lady Hale, the Deputy President of the Supreme Court, noted that it is standard practice not to award costs against a losing party in cases involving children, whether at the initial hearing or during any subsequent appeals, except in some exceptional circumstances. This is to ensure that no one is deterred from legal action by the fear of being forced to pay costs. In any court action concerning children the focus lay on the right outcome for them. “The only winner should be the child”, said Lady Hale.

In adoption proceedings, Her Ladyship added:

“…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.”

The same principle applied when Judges ruled against the authority in adoption proceedings. In the current case, it had not been reasonable, the Court ruled, to suggest that the local authority should not have resisted the appeal, and it was in fact very likely that the Court of Appeal would have been very surprised if it had failed to respond to the appeal. Therefore there was no reason to depart from the usual rule that costs should not be awarded against the losing party in cases involving children.

Image of Lady Hale is by June Mendoza

 

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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