Councils not liable for costs of interveners in care proceedings, Supreme Court rules

There should be no exceptions to the general rule that costs should not be awarded against parties, including local authorities, where there has been no 'reprehensible behaviour or an unreasonable stance', the Supreme Court ruled this morning.

Delivering judgment on behalf of the court in T(Children) [2012] UKSC 36, Lord Phillips said courts should have regard to competing demands on councils' 'limited funds'.

The case involved allegations by two children, whose parents had separated, that they were being abused by their father and six other men. The father's grandparents were accused of colluding in the abuse.

The council applied for a care order under Section 31(2) of the Children Act 1989. The six men and the grandparents joined the proceedings as interveners. The men qualified for legal aid, but not the grandparents, who spent £52,000 in legal fees.

The Supreme Court heard that a five and a half week fact-finding hearing in 2009 exonerated the grandparents and five of the men. The grandparents applied for an order that the council pay their costs.

Lord Phillips said it was common ground that the council could not be criticised for advancing the allegations made against the grandparents.

'The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigant's costs should be publicly funded,' Lord Phillips said. 'The former question is for the court; the latter for the legislature.'

Lord Phillips said that under the LSC's funding code for care proceedings, children, parents and those with parental responsibility were granted funding without reference to means, but not interveners.

'There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.'

He went on: 'If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings.

'In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded.

'It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.'

Lord Phillips concluded that the practice of not awarding costs against parties, including local authorities 'in the absence of reprehensible behaviour or an unreasonable stance' was one that 'accords with the ends of justice and should not be subject to an exception in the case of split hearings'.

He allowed the council's appeal and restored the original order made by Judge Dowse, but on the basis that it was not relied upon to deprive the grandparents of the £52,000 costs awarded to them by the Court of Appeal.