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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A Local Authority v A Mother & Ors [2012] EWHC 1637 (Fam) (15 June 2012) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2012/1637.html Cite as: [2012] EWHC 1637 (Fam) |
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FAMILY DIVISION
Royal Courts of Justice |
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B e f o r e :
____________________
A LOCAL AUTHORITY | Applicant | |
(1) A MOTHER | ||
(2) A FATHER | ||
(3) AN AUNT | ||
(4) C (A CHILD, BY HER CHILDREN'S GUARDIAN) | Respondents |
____________________
Miss Martha Cover (instructed by Bindmans) for the Aunt
Hearing date: 22 May 2012
____________________
(APPROVED - EDITED)
Crown Copyright ©
Mr Justice Peter Jackson:
Background
C moves to live with her aunt
(1) The aunt has reorganised her life. She is a single person in her early 30s, who works full-time, fortunately for a broadminded employer. She and C live at a secret address for safety reasons. She has supported C's school and her assessment at a specialist clinic, as well as attending meetings with social workers and those carrying out assessments for the court. She has been expected to produce daily report sheets as a foster carer, which was onerous for someone who is dyslexic. She has also had to negotiate difficult though limited contact arrangements for the parents.
(2) C has made tremendous progress. She has received sensible and devoted care from her aunt and considerable support from her school.
(3) For its part, the local authority has paid a fostering allowance to the aunt and given social work support.
(4) Unfortunately, the relationship between social services and the aunt has not been easy. She has experienced social services as being bureaucratic and inefficient, while the social workers saw her as being unduly punctilious and resistant to advice.
(5) In the summer of 2011, the criminal trials took place, the outcomes being described in the unedited judgment.
(6) A court-directed assessment has taken place. Dr Clare Lucey, the child and adolescent psychiatrist, reported in April 2011. Her interim opinion about C's placement with her aunt was positive: "In my view C is doing well in her aunt's home and her aunt is providing the best available placement. If C were to remain with her aunt I think she would do very well. I do not have concerns about it as a long term placement." A year later, Dr Lucey recommended C's adoption by the aunt in her final report.
(7) Further court hearings took place in May and September 2011. In May, I refused the aunt's application for permission to apply for a residence order. In September, I granted her application for permission to apply for a special guardianship order or an adoption order.
(8) The proceedings continued after the first report of Dr Lucey and the criminal proceedings because there was no agreement about the final outcome. Both interim applications, referred to in the paragraph above, reflected the rather poor relationship between the aunt and the local authority. In May, the aunt wanted a residence order so as to become a family carer rather than a foster carer. I dismissed the application, not because of any concern about her care of C, but because there still needed to be an interim care order at that stage. Then, in September, the position was the other way round. The local authority remained aloof on the question of whether the aunt should be granted permission to apply for an SGO or adoption order. Furthermore, it had referred the aunt's position to its fostering panel. This arose from what it regarded as her lack of cooperation with its procedures. I was so concerned at the state of affairs that I asked for confirmation that the referral was not in fact going to lead to the aunt being deregistered as a foster carer and, having had that confirmed, I recorded it in the order. As it happens, the local authority persisted with the referral, but the aunt was not criticised by the panel and the placement continued.
(9) It was not until mid-May 2012, following the receipt of Dr Lucey's final report, that the local authority felt able to give unequivocal support for C's permanent placement with her aunt. There then followed detailed negotiations about the terms of an adoption support package, which were not concluded until the second day of the hearing on 23 May. The local authority will continue to pay an adoption allowance and will fund specialist therapy for C.
(10) The final hearing was listed for five days on 21 May 2012, but finished in a day, with negotiations about the support package and argument about costs taking the case into a second day.
(11) Since February 2011, the aunt has asked the local authority for assistance with her legal costs. It declined to give any until two weeks before the final hearing, when it offered £2,000 as a discretionary amount following its approval of the aunt as an adopter.
The aunt's costs
Ms Cover (reduced hourly rate, itemised) | £ 7,425 |
Bindmans (itemised) | £15,309 |
TOTAL | £22,734 (incl VAT) |
The local authority's position
(1) On the facts of the case:
(a) It would have been wholly inappropriate for the local authority, whose interim care plan was for C to remain with her aunt, to have expressed a final view before all assessments had been completed.
(b) The aunt did not need legal advice. The issues became relatively straightforward following C's placement with her and the assessment by Dr Lucey: "…it was quite clear by May 2011, if not before, which way the wind was blowing". By September 2011, the position of the aunt "was neither complex, convoluted or fragile."
(c) The purpose of the referral to the fostering panel in September 2011 was "to try to overcome the various niggles and disagreements that had arisen… in order to continue working together in the best interests of C."
(d) The conduct of the local authority has not been reprehensible or unreasonable.
(2) On the question of principle:
(a) The general proposition that there should be no order for costs has not been displaced. There has been no free-standing element to the proceedings, such as a fact-finding hearing. Had the aunt been publicly funded, it is inconceivable that an application would have been made on behalf of the Legal Services Commission against the local authority.
(b) It is inappropriate to constitute a local authority as a secondary funding authority in cases where Parliament has decided that litigants are not entitled to public funding. Requiring the local authority to fund the aunt's costs would "break new ground and set a dangerous precedent, ringing alarm bells in local authorities throughout the country". If the aunt is awarded her costs, it would give the green light to any party involved in care proceedings to seek costs against the local authority. This might lead to local authorities opposing the grant of party status to relatives because of potential costs implications. What, in any event, what would the criteria for awards of costs be?
(3) On the amount claimed:
(a) The figure claimed is excessive. Much of the costs claimed relate to correspondence about the aunt's position as a foster carer, and not her position as a litigant. For example, Bindmans' bill includes 16 hours spent on e-mails.
(b) The issue of whether to apply for special guardianship or adoption obviously merited some legal advice, and appropriate funding is often offered by local authorities as a matter of discretion. Normally, a figure of £2,000 might be allowed; the highest discretionary amount paid by this local authority is £4,000-5,000.
My findings
(1) As the proceedings ended in agreement, I have not investigated in detail where responsibility lies for the day-to-day state of affairs between the aunt and social services. I suspect that both could have done more to make things go smoothly. However, my reading of the situation, gained from two hearings in 2011 and one in 2012, is that the local authority was slow to see the big picture, which is that this was a placement that needed the fullest encouragement from the start. Instead its approach was that it needed to be satisfied by the evidence that C's permanent placement with her aunt was something it should support. It was entitled to choose this approach, but it had consequences for the working relationship with the aunt, who understandably detected a lack of enthusiasm on its part. For example, at the hearing in May 2011, the court heard positive observations about the aunt's parenting from Dr Lucey, C's school, and from a fostering support social worker who had assessed the aunt. In contrast, there were no very positive observations from the allocated social worker and mixed comments from the Guardian, while a former play therapist in fact doubted the aunt's ability to meet C's needs. I have already noted that it was not until May 2012 that the aunt knew that her wish to care permanently for C had clear official support.
(2) It would not have been "wholly inappropriate" for the local authority to have expressed a final view before all assessments had been completed. After the criminal proceedings, it was open to it to decide that it should throw its weight behind the placement with the aunt. In fact, it decided to wait for Dr Lucey's final report, which was then somewhat delayed. The proceedings continued and remained active for longer than they might have done, to the aunt's disadvantage in terms of costs.
(3) I do not accept that it was "clear by May 2011, if not before, which way the wind was blowing", though, as I have just said, it might have been. The issues involving the aunt might have became "relatively straightforward" following C's placement with her, had the local authority said so at the time. But it did not say so, and the way in which the matter is now presented is not how I recall it, and it is certainly not how the aunt will have experienced it. Rather, the dynamic throughout was that the aunt was going to have to satisfy the local authority and the Guardian that she was to be trusted with C.
(4) If the local authority thought that the referral to the fostering panel in September 2011 was "to try to overcome the various niggles and disagreements that had arisen", then again it did not make this clear at the time and the court had to demand clarification. The aunt was right to see the referral as a sign of the local authority's scepticism about her role as C's carer.
(5) The local authority has certainly not behaved reprehensibly, nor has it behaved unreasonably in the sense described in some cases. However, I do find that it could have acted differently, and that this would have reduced the need for the aunt to have legal representation at this level. As the Family Justice Review notes at [3.7], "even within child protection choices have to be made". Had the local authority made clear in May 2011 that it accepted Dr Lucey's view and that it supported the placement as a long-term outcome and not just an interim care plan, the levels of tension would probably have dropped. Any offer to fund a limited level of legal advice and representation for the aunt, would also have helped.
(6) The offer of £2,000, which would be appropriate for formal advice about an otherwise straightforward adoption, does not meet the needs of this case. It was made after the event and after the aunt had been represented through the goodwill of her representatives for over 18 months.
The discretion to make orders for costs
28.1. The court may at any time make such order as to costs as it thinks just.
44.3(4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) …
(c) …
44.3(5) The conduct of the parties includes –
(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;
(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and
(d) …
'
Discussion
(a) I agree that this case does not fall within the categories of exception identified above, in that there has been no free-standing element to the proceedings and the local authority has not behaved reprehensibly.
(b) I accept that, had the aunt been publicly funded, no application would have been made on behalf of the LSC against the local authority. That would reflect the fact that the state would have performed its obligation to uphold the aunt's effective access to the court in a case where legal representation was indispensable. Here the situation is different. The aunt was not publicly funded and it is in my view doubtful whether her Article 6 rights would have been upheld if she had not been able to be represented.
(c) In this regard, the practice of this and other local authorities in offering appropriate funding as a matter of discretion amounts to a practical acceptance that there will be situations where local authorities need to step in to bridge a funding gap. This discretion, exercised in favour of chosen candidates as adopters, cannot exclude the court's power to make wider provision for those who are chosen late, or those who are never chosen but succeed.
(d) I agree that a local authority should not be treated as a secondary funding authority for litigants who are not entitled to public funding. However, this does not prevent the court from making an order for costs where the circumstances of the individual case make it just. I do not accept the "floodgates" argument that if the aunt is awarded her costs, it would give the green light to any party involved in care proceedings to seek costs against a local authority. Orders for costs will only be made in exceptional cases. Nor do I accept the argument that costs should not be awarded because it might lead local authorities to oppose the grant of party status to relatives because of costs implications, as such a stance would be unprincipled.
(e) To the question, "What would the criteria for awards of costs be?", the answer would be that the court will apply the costs rules in the light of authority. It will normally make no order, but there will be exceptional cases where the configuration and merits of the case point to an award being just.
(f) Overall, Mr McIlwain's arguments understandably address the situation from the standpoint of the local authority, while the task of the court is to balance these arguments with the other circumstances of the case.
Decision