Family Law

Her Honour Nasreen Pearce

Retired Circuit Judge:

The decision of the Supreme Court in Re T (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36, [2013] 1 FLR (forthcoming) may lead local authorities to sigh a sigh of relief and regard themselves as immune from the liability for costs in care proceedings, unless it is established that their conduct was reprehensible or unreasonable and a party who is denied public funding, and thus the right to defend the allegations and a fair trial, to feel a sense of injustice. Given that a local authority is under a statutory duty to investigate and safeguard children where it receives information that a child has been subjected to harm or is likely to be subjected to harm, local authorities may work on the principle that it would be extremely rare for a party to establish that their action in instigating proceedings and their conduct within care proceedings was reprehensible or unreasonable. However, the issue of a local authority's liability for costs is not so clear cut and there may well be circumstances where the criteria for an order for costs set out in the Family Procedure Rules 2010 and the Civil Procedure Rules 1998 should be relevant and lead to an order being made.

The issue raised by the appeal before the Supreme Court was limited in that it addressed only 'whether in care proceedings a local authority should be liable to pay an intervener's reasonable costs in relation to allegations of fact, reasonably made by the authority against the intervener, which have been held by the court to be unfounded' irrespective of whether the findings of the allegations were dealt with by a split hearing or not, as the court held that the decision to direct a split hearing in care proceedings is essentially one of case management (para [27]).

The full version of this article appears in the December 2012 issue of Family Law.