The Family Law Week Blog is a companion site to Family Law Week. It complements the news, cases and articles published on Family Law Week with additional comment and coverage of the wider aspects of family law.
This article by Harry Nosworthy on the main site rounds up and summarises some recent decisions on costs in public law proceedings, particularly relating to intervenors.
I am starting to feel the shock waves arising particularly from the decision of Re T (A Child)  EWCA Civ 1585 in which Wilson LJ as he then was (entirely supported by Munby LJ & Coleridge J)made an order that the local authority should pay the costs of the intervenors who were facing allegations of sexual abuse but were exonerated. From the case report it does not seem that there was any criticism of the local authority's actions in bringing the case or maintaining the intervenors in the pool - on the contrary Wilson LJ makes a point of saying that the local authority had acted entirely properly. The proceedings had a heavy financial impact on the grandparents who paid out over £55,000 in legal expenses which they had to borrow against their home.
Wilson LJ said that the general proposition of no order for costs did not come into play in this situation and the point should be who was the winning party. The unsuccessful party was responsible for the successful party having to incur legal costs and therefore they should pay.
I hesitate to disagree with so learned a tribunal but I must admit not only to finding the logic difficult to follow but to agreeing 100% to the submissions which were made by Janet Bazley QC on behalf of the local authority.
I could quite understand the approach to costs if a local authority had acted unreasonably in maintaining an individual in the pool (for example, where no complaints seemed to have been made against them, or where the evidence presented was flawed or tainted as a result of the conduct of the local authority (for example, in its approach to the best evidence interviews) or because of the unreasonable conduct of the litigation.
But can it be right to saddle them with costs when there is some evidence to suggest that an individual is in the pool, when the real perpetrator does not tell the truth about what happened (and often is accusing others to create a smoke screen)? The local authority is in the position of prosecutor in these circumstances and has a duty to ensure that there is a fair hearing on top of its child protection duties. This decision seems to suggest that the local authority should act as judge and jury as well. Social workers are not even specialists in the art of investigation albeit that some of them become quite expert at it. They are often actively discouraged by the police and the criminal defence lawyers from interviewing potential suspects about matters which may also be the subject of criminal proceedings and relevant parties are similarly advised not to offer up any assistance, particularly ahead of a criminal case. Social workers are often deliberately misled by family members, even the innocent members of the family who may generally hold the view that another member of the family is innocent.
From a logical point of view, if this decision is applied across the board, why should it not extend to publicly funded parties. Do the lawyers's duties to the public fund mean that we should be running this argument whenever findings are not upheld against our clients? Was this case in fact driven by sympathy for the impoverished grandparents (I don't mean to suggest that sympathy is not appropriate) who could not access public funding?
From a fairness point of view surely it is right to examine the contributions of all concerned to the need for the intervenors to incur costs? This could include the perpetrator who has generally tried to deceive the authorities as to what really happened. Amongst those responsible for examining whether the quality of the evidence is likely to support a finding surely is also the Judge, particularly at the IRH. If somehow it is simple and obvious to see how a child was injured or abused what on earth is the point of a hearing to determine the facts in the first place? It is often only as a result of the testing of evidence in the forensic arena and taking a wholistic approach that it is possible to see clearly who is the guilty party.
I have had two cases recently in which costs have been awarded following a fact finding.
In the first case the local authority kept the exonerated intervenors in the pool of perpetrators of a physical injury right up to the point of written submissions. The court made findings that the stepfather was the perpetrator and it followed from that that he had lied to all concerned and the court. If I remember rightly the court also made adverse findings against the mother in terms of failure to protect and it was implicit that she too must have known that it was not the intervenors. It is right to acknowledge that he and the mother had set the hare running as to the possible involvement of the intervenors but there was only one real thing they said that might genuinely tend to suggest that they were responsible and it was thin to say the least. It is also right to acknowledge that it never looked very likely that the intervenors were the sort of people who would behave abusively to a child (but this is, of course, precisely the sort of judgment call that I question whether it is right for the local authority to make). They had as much opportunity as the mother & stepfather to inflict the injury but that was about the extent of the positive evidence against them. It seemed to me that there as least some logic in ordering costs against the perpetrator but was not the local authority and the court equally responsible for keeping them in the pool until the bitter end? I seem to recall that the mother was not also ordered to pay the costs but I could be wrong about that.
In the second case, the local authority was ordered to pay the costs of the grandmother following a physical injury to the child when it was being cared for by mother and father and her in her home. At the last minute, after he had given evidence denying any culpability the father confessed that it was him who was responsible. Until that point the local authority had no information on which it could have concluded that it was him or to exclude the grandmother and mother in terms of a collusive account about what had happened. All three adults had opportunity. The grandmother looked unlikely as a candidate and I believe had been an approved foster carer in her time. The Judge did not seem to accept the proposition that foster carers are known to abuse children so that she could not be dismissed out of hand. There were in any event other concerns about the advice given by the grandmother as to when to seek medical attention. The Judge ultimately resolved this in her favour but not without hesitation. She had very little money and had had to pay the costs privately. The Judge did not criticise the local authority for including her in the pool and no one seemed to have ever suggested that she should be excluded at an earlier stage. The court was not persuaded that the villain of the piece ie the father who had deceived everyone should be held responsible. He was, of course, a man of straw and the court made multiple references to the £10,00 legal bill of the grandmother being a drop in the ocean of the local authority's budget.
It is difficult to avoid the impression is that these cases are being driven by sympathy rather than principle or logic and that Re T encourages this.
I understand that Re T is on its way to the Supreme Court and may be looked at in June or July. Of course, Wilson LJ as he then was, is now in the Supreme Court.
In the mean time local authorities need to think through the ramifications of keeping people in the pool of perpetrators and keep that under review at all stages. It may lead to greater resistance to allowing intervenors into court proceedings in order to avoid a costs argument. Local authorities are likely to want the other people in the pool to make the running on how many people should be in the pool in order to avoid potential costs ramifications. This has all sorts of drawbacks if it discourages those with useful information to contribute to the forensic exercise from participating.
How about automatic public funding for intervenors???