Case No. FA-2022-000035

52.Having regard to the judgment as a whole it appears to me that the grounds on which the judge made the costs order in favour of the Applicants and the Respondent mother were his views that:i)The Local Authority was wrong not to issue public law proceedings.ii)The Local Authority had been instrumental in removing the children from the mother who had lost care of her children as a result of state intervention.iii)Had the Local Authority issued public law proceedings, then the Applicants would not have needed to engage in private law proceedings.iv)Had the Applicants not looked after the children and sought a child arrangements order in private law proceedings, the Local Authority would probably have issued public law proceedings in which the Applicants would have been entitled to public funding for legal representation.v)The Applicants were suffering financial hardship as a result of being engaged in private law proceedings.The judge clearly considered that these matters made out a case that the Local Authority had been guilty of conduct that “can be criticised” which had had an adverse impact on the legal costs of the parties in the case which should be remedied by a non-party costs order.53.The judge has a deep experience of private and public family law proceedings and his view that the Local Authority ought to have issued public law proceedings in this case was one he was clearly entitled to hold. However, the Local Authority was likewise entitled to make its decision and it has not been suggested that it was an unlawful decision. The Family Court is not given the power to direct a Local Authority to issue public law proceedings. The Local Authority had complied with the s.37 orders (the second order at least). It had completed its investigations and concluded that it should not apply for a care order or supervision order. It had complied with s.37(3) CA 1989 by giving its reasons for so deciding and informing the court of any service or assistance provided or to be provided for the children and their family, and any other action which they had taken or proposed to take with respect to the children. Hence, it seems to me, the failure of the Local Authority to issue public law proceedings could not properly be regarded, in itself, as reprehensible behaviour or unreasonable conduct within the proceedings, and could not, without more, constitute exceptional circumstances justifying the making of a non-party costs order.54.This was not a case in which the Local Authority was found to have acted in bad faith, or to have misled the parties or the court. The judge did not make a finding to that effect. However, he did appear to proceed on the basis that he had been encouraged to believe that public law proceedings would be issued. He said that he recalled that at the hearing on 12 August 2021 the local authority, by the team manager, had “impressed upon me” that care proceedings were “highly likely” to follow. However, as the transcript discloses, the social worker from the Local Authority had told the judge at that hearing that “private law proceedings are more likely to settle the children’s future.” The judge’s recollection appears therefore to have been awry. In any event, there was no undertaking or guarantee offered by the Local Authority that it would issue public law proceedings and it made clear to the court and the parties that it was engaged in a process of deciding whether or not to do so. Therefore, the possibility of there being no public law proceedings was always evident. It was not open to the judge to proceed on the basis that the Local Authority misled the court as to its intentions in respect of public law proceedings. Indeed, as noted, no such finding was made.55.A ground for the judge’s decision to make non-party costs orders was that the Local Authority had been “instrumental” in the removal of the children. It is agreed by all parties that the Local Authority did not remove the children. It would have been unlawful for them to do so without a court order. In what sense could it be said that they were “instrumental” in the removal of the children? The judge acknowledged that there were factual disputes about the circumstances on 28 May 2021 which he had not resolved. There was a factual dispute as to whether the Local Authority, through its social worker, encouraged the Applicants to remove the children from the mother’s care, which the Judge recognised. The Applicants’ case was that a Local Authority social worker had told them to pick up the children from their schools and take them to the Applicants’ home for their protection. The Local Authority disputed that account not least because, it maintained, it had expected N to exercise his parental responsibility to protect the children and to look after the children in his own home. There was also disagreement as to whether the Local Authority had instructed or advised the Applicants to issue private law proceedings. The Judge had received no evidence from the Applicants as to these matters in dispute. The judge said that he had not “tried” these disputes but that he considered that that “does not matter” because the Local Authority (i) “was involved”; (ii) wished the children to be removed; and (iii) would have instigated proceedings to remove them if necessary. Nevertheless there was no finding that the Local Authority had actively participated in the removal of the children or had actively encouraged the Applicants or N to remove them and then to issue private law proceedings. It might well be, as in many other cases, that the Local Authority was involved in providing support to the family, and that family members, other than the mother, and the Local Authority wanted the same outcome – for the children to leave their mother’s care – but a shared desire does not indicate an active involvement in the children’s removal. Given that the judge had not received any evidence about the circumstances on 28th May 2021, and given that he had expressly said that he had not resolved the dispute as to the facts, he was not entitled to find that the Local Authority was instrumental in the removal of the children from their mother’s care or, as he put it “the mother has lost care of her children as a result of local authority – state – intervention.” [17].56.It is undoubtedly true that private law proceedings would have been unnecessary and, if issued, could have been discontinued, had the Local Authority decided to issue public law proceedings. Likewise, had the children remained with the mother and the Applicants had not taken the steps they did on 28 May 2021, it may well have been the case that the Local Authority would have issued public law proceedings. However, these are not exceptional circumstances. At any stage when the Local Authority is contemplating issuing public family proceedings there may be a tension between, on the one hand, encouraging and supporting a solution within the family and, on the other, seeking a care order or supervision order. Generally, a “least interventionist” approach is encouraged, so that support is given to families to try to avoid public law proceedings. As Mr Martignetti, for the Children’s Guardian, pointed out, family members in a similar position to K and L may feel that they are better supported, financially and otherwise, when decisions about the welfare of the children are made through public law proceedings. That may well be true in this and many other cases. However, it would be contrary to the whole ethos of the Children Act 1989 and to Article 8 of the European Convention on Human Rights, for the state to intervene in family’s lives by seeking care orders or supervision orders purely as a mechanism to produce financial advantage (or to avoid financial disadvantage) to family members. The fact that family members and a Local Authority may share the same aims of protecting children from harm does not mean that the Local Authority should issue public law proceedings they consider to be unnecessary, let alone that they should do so in order to provide family members with funding for legal representation. 57.It is true that the Applicants have incurred liabilities for legal expenses and, like the Respondent mother, may well incur legal expenses during the remainder of the private law proceedings. The Applicants have taken these apparently vulnerable children into their care and, it seems, have provided a safe and supportive home for them. Nevertheless, Parliament decides what funding should be available at public expenses for advice and representation in private law proceedings. The fact that the Applicants may be commended for their conduct does not entitle them to such funding. The Applicants referred the court to the decision on financial provision of child costs in legal proceedings CK v KM [2010] EWHC 1754 [2011] FLR 208, but that case has no application to circumstances in the present case or to non-party costs orders.58.Given that the judge himself criticised the conduct of the Local Authority, it was not surprising that he found that their conduct met his test of being conduct that “can be criticised”. However, he failed to consider whether the Local Authority had behaved reprehensibly or was guilty of unreasonable conduct within the proceedings. On scrutinising the grounds that the judge seems to have relied upon to make the non-party costs order, they fall well short of justifying a finding that the Local Authority’s behaviour was reprehensible or their conduct unreasonable. Nor could the grounds reasonably be regarded as constituting exceptional circumstances justifying the making of such an order. Indeed, although the judge directed himself to consider conduct and that non-party costs orders “are only made in exceptional circumstances”, he did not address whether the circumstances he had identified were indeed exceptional.59.Furthermore, with due respect to the judge, he failed to consider matters relevant to the question of whether in all the circumstances it was just to make the non-party costs order:i)If the children concerned were being well looked after within the family – which the judge does not appear to have doubted - then it was contrary to penalise the Local Authority for not seeking a care order or supervision order. There must be many cases where the families make arrangements, through the court or otherwise, but for which the children would suffer or would be at risk of suffering from significant harm. The principle of “least intervention” would be frequently breached if Local Authorities faced adverse costs orders whenever they did not issue proceedings. Local Authorities, other agencies and the courts would have to deal with many more public law applications.ii)The judge did not refer to any schedule of costs in his judgment. He referred to the fact that the Applicants had had to secure a larger house to accommodate the children but that was a financial consequence which would not be remedied by the non-party costs order that he made. He did not address the amount of legal costs which the Applicants, had incurred in the private law proceedings or to what extent those costs were attributable to the culpable conduct, if any, by the Local Authority. iii)In relation to the causal link between the conduct of the Local Authority and the costs impact on the parties, the judge failed to consider that the costs impact was due to funding arrangements determined by Parliament. The Respondent mother sought the return of the children to her care. Presumably, that would also have been the case in public law proceedings. Whilst it is true that the Local Authority’s decision meant that the case proceeded as a private law application rather than a public law application, the costs impact on the Respondent mother was due to funding arrangements for legal advice and representation which were beyond the control of the Local Authority. The same can be said of the position of the Applicants. This was not a case where the Local Authority had acted in a way to waste costs within the existing proceedings.60.Had the judge taken into account all the circumstances, but disregarding disputed matters on which he had not received any or any sufficient evidence and about which he had not made any findings, then, applying the correct legal test, he could not reasonably have exercised his discretion to make a non-party costs order against the Local Authority. It could not have been said to have been just in all the circumstances. It was beyond the parameters of the permissible exercise of his discretion to make the order.61.A further, striking feature of the judge’s order is that he not only ordered the non-party to pay the Applicants’ past costs of the proceedings, but also all the future costs of the Applicants and the Respondent mother. Ms Duxbury accepted that s.51 of the Senior Courts Act 1981 was sufficiently widely drawn to permit a court to make an order in respect of future costs. It is certainly the case that at an interlocutory stage, the court may sometimes order that the costs of a future step in the proceedings, for example, the instruction of an expert witness, be borne by a particular party. However, the prospective costs order in this case was much more far-reaching. The judge could have had no idea what the future costs of the private law proceedings would be – would proceedings resolve with agreement or be robustly contested and protracted, what expert evidence might be required, how many hearings would be needed? There was no estimate of future costs. The judge’s view that the Local Authority ought to have acted differently so as to avoid the need for any private law proceedings, clearly led him to order that Local Authority should effectively indemnify the parties in respect of their costs liabilities, in proceedings to which the Local Authority was not a party and over which they would have no influence or control. With respect to the judge, he should have stepped back and considered whether the order was just in all the circumstances. Had he done so he could not reasonably have exercised his discretion to make such a draconian and far-reaching costs order.62.It is apparent from the judgment as a whole that the costs order made in this case was designed to provide the Applicants and Respondent mother with funding for legal advice and representation to which they had no entitlement under the laws enacted by Parliament. It was a device of the kind that MacDonald J eschewed in HB v A Local Authority (above).63.In conclusion, the judge applied the wrong legal test, proceeded on a factual basis that he was not entitled to assume, disregarded relevant circumstances, and exceeded the permissible parameters of his discretion. The non-party costs order was an impermissible device designed to provide a public source of funding for the parties’ legal costs in private family law proceedings. For those reasons I allow the appeal and set aside the non-party costs order in its entirety.64.The private law proceedings in the Family Court are, I understand, continuing.