Local authority ordered to pay substantial costs in family human rights case – Adam Smith

19 April 2013 by Guest Contributor

A & S v. Lancashire County Council [2013] EWHC 851 (Fam) read judgment

This was a costs application arising from an extremely important decision by Peter Jackson J in June 2012 (see Alasdair Henderson’s post here and read judgment)

In that original judgment, Lancashire County Council were found to be in breach of Articles 8 (private life), 6 (fair trial) and Article 3 (inhuman treatment) of ECHR. Two brothers had come into local authority care as infants and were freed for adoption.

The original judgment

The judge had summarised things as follows:

A has had no fewer than 12 main placements during his lifetime, of which 7 lasted for less than a year and 5 lasted for between a year and 5½ years. During this time, he has been placed in respite care 36 times, with 19 different respite carers. In one 18 month period beginning when he was 10, he went to 8 different respite carers. A has moved backwards and forwards between placements of all kinds no less than 77 times in his 16 years of life.

S has had no fewer than 16 main placements during his lifetime (12 with A and 4 without him). Of these, 10 lasted for less than a year and 6 lasted for between a year and 5½ years. During this time, he has been placed in respite care 40 times, with at least 22 different respite carers. Like A, in one 18 month period beginning when he was 9, he went to 8 different respite carers. Overall, S has moved backwards and forwards between placements of all kinds no less than 96 times in his 14 years of life.

The result was that the boys remained under freeing orders for 11 years, suffering multiple placement breakdowns. They became increasingly unsettled and disturbed; they suffered irreparable harm and real life long damage. The local authority failed to apply to discharge the freeing orders, despite abandoning plans to  adopt. This meant the children’s links to their family were severed – and the parents were unaware of the plight of their children.

Peter Jackson J demanded local authorities to overhaul their systems, so that children who remain under unsuccessful freeing or placement orders are identified, and those cases to court to apply to discharge the orders. Likewise, the Independent Reviewing Officer system across the county needed to work more effectively.

The costs judgment

 Unsurprisingly an applications for costs was made on behalf of the children.

In his short but significant judgement, in which it was agreed he would not hear any oral submissions, the judge found that:

• Despite the “civil” nature of the Human Rights applications (with Particulars of Claim and Defences being filed), the costs issue should not be considered under the Civil Procedure Rules. The general rule that “costs follow the event” did not apply.
• The HRA applications had been considered alongside applications for discharge of Freeing orders, and an application for Special Guardianship- costs were to be considered under the Family Proceedings Rules and family cases relating to costs.
• He approved the principles in Re T (Children) (Care Proceedings) (Costs) [2012] UKSC 36: Orders for costs in family cases are unusual but can be made where the behaviour of a part has been reprehensible or outside the band of reasonableness”
• In considering the “conduct” of the party it was not limited to “litigation conduct”- the behaviour of the local authority was to be looked at in the whole.“If this were the case a party who had behaved reprehensibly for years could escape a costs award by being sure to behave impeccably once the litigation for which they were responsible had begun.” (para 19)
• The fact that the children were publicly funded made no difference; “the legal services commission is an equally hard-pressed public agency and the commission and the taxpayer – are entitled to look at the court to apply the costs rules impartially (applying G v E & Manchester CC [ 2011] 1 FLR 1566

The judge concluded the  decision was “quite simple” despite the considerable effort of the parties to argue it.

In this case [Lancashire County Council’s] conduct in relation to these  boys over many years was blatantly unlawful and unreasonable (as both it and the Independent Reviewing Officer have accepted) and led inexorably to substantial litigation.

The costs claimed were £210,734 –  the judge noted that “the impact on Lancashire’s budget is extremely regrettable”. It was not a case for costs to be awarded on an indemnity basis, and would  be subject to detailed assessment on the standard basis.

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