Part of: Section 47 Report Explained: What Happens During Section 47 Enquiries?
We often hear about cases in which a parent who has acted unreasonably during legal proceedings faces adverse costs consequences. But can a parent be left paying their own legal costs even after a successful appeal? Our child law team considers this question below.
In the case of M (A child) [2018] EWCA Civ 240, this is exactly what happened. The mother in this case is of Zimbabwean origin and arrived in the UK in 1999. The mother lived with her family and trained as a nurse. The mother’s relationship with the child’s father lasted approximately three years and ended when she found out she was pregnant. The mother was then the child’s sole carer.
Mother administers epi-pen to child following allergic reaction
On two occasions in October 2014 and May 2015 the mother took the child to the hospital by ambulance having administered an epi-pen to the child on the belief that the child was suffering an allergic reaction. Medical opinion was that on both occasions the epi-pen had been administered unnecessarily.
Following multidisciplinary meetings, the mother was arrested in June 2015 on suspicion of fraud and neglect. The child was removed under police protection and placed in foster care. The child has been in foster care since the mother’s arrest.
No criminal charges were pursued. The medical experts concluded that this was not a case of Fabricated or Induced Illness (FII), but rather the actions of an anxious mother. Following this initial case, the court made a placement order under section 21 of the Adoption and Children Act 2002, authorising the local authority to place the child for adoption.
Mother appeals the courts decision to place the child into adoption
The mother appealed against the court’s decision — the care and placement orders that would have led to the child’s adoption. The mother’s grounds for appealing the care order were:
- The judge failed to engage with the substance of the welfare checklist and carry out an analysis which, it is said, the case warranted in view of the fact the category of harm was, on the judge’s own account, “difficult to pin down”.
- The learned judge failed adequately to undertake a proper proportionality analysis in any event but that the error in the welfare analysis resulting in his failure adequately to identify the evidential basis for his assertion that the child was at risk of emotional and physical harm in the care of the mother. This had an adverse and detrimental effect upon the proportionality assessment which the court was bound to undertake and so on the ultimate decision to be made.
The mother’s grounds of appeal to the care order were accepted by the court who ordered the matter to be re-heard following a finding that the judge in the previous case had fallen into error by failing to adequately consider the evidence presented.
The mother applies for her appeal costs to be paid
Following her appeal being allowed the mother applied for her appeal costs (approaching £20,000 in view of counsel’s fees) to be paid by the local authority on the basis that they chose to oppose her successful appeal.
In claiming her costs to be paid the mother argued:
- Her appeal has succeeded
- She is not eligible for legal aid
- She and her husband can very ill afford expenditure on this scale, added to the roughly equal costs incurred at the trial, particularly as they now face the further costs of the rehearing.
The mother also state it was unreasonable for the local authority to have defended the appeal in the way that it did when the decision has been found to have been incorrect.
In contrast the local authority stated that it cannot be said to be unreasonable for it to have defended the appeal and that it too has many calls on its stretched resources.
In considering the issue of the costs the judge stated he has considerable sympathy with the position of mother, who is not eligible for legal aid and who has incurred such substantial costs in seeking to have her child returned to her. However, it is not possible to say that the local authority has been unreasonable in defending the judge’s decision, it being a decision that was in line with all professional advice and was supported by the children’s guardian.
“Unfortunately, justice cannot demand that any deficiency in legal aid funding should be made up out of the funds of the local authority. I have considered whether a decision on the application should be postponed until after the rehearing. Had there been a clear case of documented financial hardship and factors that suggested unreasonableness on the part of the local authority, a postponement of the decision might be justified. “But in my judgment, neither of these indicators is strong enough to justify that unusual course.” For these reasons, the judge made no order for costs, meaning the mother had to bear her own appeal costs despite winning her appeal.
Legal aid eligibility in family cases depends on the type of proceedings and, in some cases, means and merits tests.
In children cases, the family court’s usual starting point is to make no order as to costs, so each party pays their own legal costs. Costs orders are generally only made in limited circumstances, such as where a party has acted unreasonably in the way they conducted the proceedings. This is why a parent can succeed on appeal and still be left paying their own costs.
If you would like more information on any area of child law then contact us on 0330 094 5880 or let us call you back to arrange an initial no obligation consultation.
