Case No. FA-2022-000035

16.It is pertinent to note that when the decision under appeal was made, the court had received no evidence from witnesses in the proceedings other than a short statement from a social worker, had heard not evidence, and had made no findings. The private law proceedings were far from concluded and it was not known how protracted they would be, whether expert evidence would be required, or how many further hearings would be needed.17.In his judgment, the judge refers to r.46.2 of the Civil Procedure Rules (applied by the Family Procedure Rules r.28.2) and s.51(3) of the Senior Courts Act 1981 but no other rules and no authorities. He was not referred by Counsel to the full range of authorities to which I have been referred, but the position statements did refer to the decisions of Re T, and the judgments of Cobb J, Lieven J and Keehan J in HB v PB, A Local Authority v A Mother and Re A, B, C, D, E and F respectively (all below). He was also referred by the parties to Re M (Intractable Contact Dispute: Interim Care Order) [2003] EWHC 1024 (Fam) in which Wall J stated, “I cannot require the Local authority to take proceedings”. 18.Section 51(1) and (3) of the Senior Courts Act 1981 provide that:(1)Subject to the provisions of this or any other enactment and to rules of the court, the costs of an incidental to all proceedings in (a)…(ba) the family court;,…Shall be in the discretion of the court …(3)The court shall have full power to determine by whom and to what extent the costs are to be paid.19.Rule 46.2 of the CPR provides that:(1) Where the court is considering whether to exercise its power under section 51 of the Senior Courts Act 1981 (costs are in the discretion of the court) to make a costs order in favour of or against a person who is not a party to proceedings, that person must –(a) be added as a party to the proceedings for the purposes of costs only; and(b) be given a reasonable opportunity to attend a hearing at which the court will consider the matter further.(2) This rule does not apply –(a) where the court is considering whether to –…(ii) make a wasted costs order (as defined in rule 46.8) …20.The judge made plain his view that the Local Authority should have issued public law proceedings. He noted his view of the financial consequences of not doing so, namely that, in this case, the Applicants and the Respondent mother did not qualify for public funding and so had either to pay for representation or go without representation in contested proceedings. He noted that the “children’s guardian (represented of course) is supportive of the position of the applicants: “surely there must be a way to give them some financial support.”” 21.In setting out the history of events in his judgment, the judge noted a factual dispute about events on 28 May 2021 when the three youngest children left their mother’s care:“The older sister and her partner allege that the then social worker expressly asked them to collect the children from school. The local authority’s case is that it wished the father of the three older children to exercise his parental responsibility and take the children to his home for the weekend … I have not tried this difference in view, but in my view it does not matter. Whilst the circumstances in which the children came to move to the care of their older sister are in dispute in terms of the local authority’s role, there is no doubt but that the local authority was involved, wished the children to move from the care of their mother and would, following events on 28 May, not have permitted the children to remain in the care of their mother without themselves bringing public law proceedings.” [5]22.At paragraph [7] of his judgment the judge recalls the hearing on 12 August 2021,“The team manager from the local authority attended and impressed upon me that the public law outline process was being pursued and that care proceedings were highly likely to follow.”23.The judge said that he applied the following principles to the application for costs against the Local authority (a non-party to the proceedings):“a) Orders that non-parties should pay the costs of litigation are permissible under section 51(3) of the Senior Courts Act 1981.b) Such orders are rare and only made in exceptional circumstances.c) The key consideration is the conduct of the non-party against whom the order is sought.d) It is not simply a question as to whether the conduct of the non-party can be criticised. A further key question is the effect of that conduct in terms of the impact on legal costs on the parties to the case.” [12]24.At [13] the judge said,“In my judgment the local authority, holding the concerns it did and having been instrumental in the 3 younger children moving and remaining away from their mother should have instituted public law proceedings in late May or early June immediately after what it alleges was the violent incident at the mother’s home. It was instrumental in then securing the removal of the children from the mother’s care. It knew the mother opposed this move. Whether that removal was to the care of the father or the older sister makes no difference. Whether the local authority believed the removal would be temporary or not makes no difference. This is because the local authority was aware within a short period that the children were with the older sister and it is clear that it wished that position to continue in the long-term and not just temporarily. The local authority at that stage believed the threshold criteria were met, and that it would highly probably be instituting care proceedings. It so informed the court.”25.The judge concluded at [16] that the Applicants had been “placed in this position because the local authority no longer wished to see the children in the care of the mother.” Of the Respondent mother’s position, he said at [17],“She has lost the care of her children as a result of local authority – State – intervention. The State must ensure a fair trial for her. She has not obtained and apparently does not qualify for legal aid. I do not see how in current circumstances any trial could be fair to her unless she has an opportunity to be represented – as the system within care proceedings would provide for her.”26.The judge held,“In the circumstances, it is my judgment that all relevant considerations point in the same direction. The local authority must pay for the representation of the applicants and the mother.” [18]