For a second time in only a couple of years the Supreme Court has reviewed costs orders in care proceedings – Re S (A Child; Court of Appeal costs order) [2015] UKSC 20. Each time the result is much the same: that costs orders should only be made in children proceedings (whether care proceedings or otherwise) where a party’s behaviour has been in some way ‘reprehensible’ (Wilson J in Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317; para [26] in Re S); and not because eg the local authority could afford to pay where grand-parents were called upon to clear their name (as in Re T (Costs; Care Proceedings; Serious Allegations Not Proved) [2012] UKSC 36 [2013] 1 FLR 133); or because a father (who was not legally aided in appellate proceedings) was successful in the Court of Appeal (Re S).

The short point is that for costs orders in care proceedings the position is as other children proceedings: a party should not be discouraged by the fear of paying another party’s costs ‘from playing their part in helping the court achieve the right solution’ for the welfare of a child ([21]). Local authorities must not be in a worse position than other parties ([32]). The only exception to this general position, suggested Lady Hale (who gave the only judgement with which all others in the Court agreed), was on a ‘best outcome’ for the child ground in cases of ‘real hardship’ to the child’s family:

[33] … If the best outcome for the child is to be brought up by her own family, there may be cases where real hardship would be caused if the family had to bear their own costs of achieving that outcome. In other words, the welfare of the child would be put at risk if the family had to bear its own costs. In those circumstances, just as it may be appropriate to order a richer parent who has behaved reasonably in the litigation to pay the costs of the poorer parent with whom the child is to live, it may also be appropriate to order the local authority to pay the costs of the parent with whom the child is to live, if otherwise the child’s welfare would be put at risk.’

In children proceedings generally, as in care proceedings, subject to the narrow real hardship for the family ground, costs orders will be as rare in care proceedings as in other children proceedings.


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