T (Children), Re

Factual and Procedural Background

The Local Authority commenced care proceedings involving two children who had alleged sexual abuse by their father and six other men, allegedly with the collusion of the children’s grandparents (“the Grandparents”). The allegations were relied upon to satisfy the threshold criteria for a care order under section 31(2) of the Children Act 1989. The Grandparents and five of the six accused men were joined as interveners.

A discrete fact-finding hearing, spread over five and a half weeks during 2009, exonerated the Grandparents and five of the six other interveners. Four male interveners were legally aided; the Grandparents were not and incurred approximately £52,000 in legal expenses, financed by a loan.

The Grandparents applied for an order that the Local Authority pay their costs. Judge Dowse refused, applying the long-standing practice in child cases that costs are not ordered unless a party’s conduct is reprehensible or unreasonable. The Court of Appeal (Judge Wilson, Judge Munby and Judge Coleridge) reversed that decision and ordered the Local Authority to pay. The Supreme Court granted the Local Authority permission to appeal, limited so that the Grandparents’ recovery of costs would not be disturbed whatever the outcome.

Legal Issues Presented

1. Whether, in care proceedings, a Local Authority can be ordered to pay an intervener’s costs when the authority’s conduct is neither reprehensible nor unreasonable, but its factual allegations are ultimately unproven.
2. Whether the fact that a hearing is “split” (a separate fact-finding stage) justifies departure from the usual no-costs practice in child cases.

Arguments of the Parties

Local Authority’s Arguments

• Public policy: exposing Local Authorities to adverse costs where allegations fail, even though reasonably raised, will divert limited children’s services budgets away from child protection.
• Potential liability would discourage Authorities from bringing necessary proceedings, contrary to the welfare of vulnerable children.
• An informal survey of 28 authorities suggested serious concern over such financial exposure.

Company A’s (CAFCASS) Supporting Arguments

• If Local Authorities risk costs, interveners who unsuccessfully contest allegations may also face adverse costs, discouraging necessary participation.

Grandparents’ Arguments

• They faced grave, life-changing allegations and reasonably incurred heavy expense to defend themselves; justice requires reimbursement after total exoneration.
• A split fact-finding hearing isolates discrete issues; once those issues are resolved against the Local Authority, costs should follow that “event.”

Company B’s (Grandparents’ Association) Arguments

• No principled reason exists to treat Local Authorities differently from other public bodies; potential costs liability would not inhibit the proper discharge of statutory duties.
• The court should retain an unfettered discretion so that obvious injustice—such as leaving blameless interveners out of pocket—is avoided.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court drew a sharp distinction between (1) the court’s discretion to award costs and (2) the separate legislative question of public funding for litigants. It reasoned as follows:

• Under the Family Procedure Rules 2010, the court retains a broad discretion (FPR 28.1) but, unlike general civil litigation, there is no presumption that costs follow the event.
• Long-standing practice—rooted in Sutton v Davis and subsequent cases—limits costs orders in child cases to situations where a party’s behaviour is reprehensible or its stance unreasonable.
• Interveners’ lack of legal aid does not shift that balance; issues of access to justice are for Parliament, not the judiciary, to redress via funding schemes.
• The role of a Local Authority parallels that of a prosecutor: it is obliged by statute to investigate and, if necessary, plead serious allegations concerning child welfare. The mere failure to establish those allegations at trial does not amount to wrongdoing.
• Adopting the Court of Appeal’s “clean-sheet” approach for split fact-finding hearings would open the door to extensive costs liability, diverting scarce child-protection resources and undermining the public interest.
• Accordingly, the orthodox no-costs practice best satisfies the “overriding objective” of dealing with cases justly while preserving resources for other vulnerable children.

Holding and Implications

HELD: The appeal is allowed; Judge Dowse’s order of “no order as to costs” is reinstated.

Implications: The decision re-affirms that, in care proceedings, a Local Authority will not be ordered to pay another party’s costs unless its conduct is reprehensible or unreasonable, irrespective of whether the hearing is split for fact-finding. This preserves Local Authorities’ budgets for child-protection work and limits future costs litigation. The ruling does not set new precedent but firmly restates existing practice.