S (a Child), Re

Factual and Procedural Background

This appeal concerns a costs order made after a successful parental appeal in care proceedings. A county court had made care and placement orders in respect of four children. The Respondent – the father of two of the children – privately funded an appeal to the Court of Appeal, contending that the judge had not properly evaluated alternatives to adoption. Relying on In re B-S, the Court of Appeal allowed the appeal, directed a further assessment of the father, and ordered the Appellant – the Local Authority – to pay the father’s appeal costs (£13,787.70). The Local Authority, having undertaken not to seek repayment whatever the outcome, obtained permission to appeal to the Supreme Court solely on the appropriateness of that costs order. The father was represented pro bono before the Supreme Court.

Legal Issues Presented

1. Whether the Court of Appeal erred in ordering the Appellant to pay the Respondent’s costs of a successful appeal in public-law children proceedings in the absence of reprehensible conduct or unreasonable litigation stance.
2. Whether any broader or additional exceptions to the usual “no-costs” approach in children cases should be recognised, including where representation is provided pro bono.

Arguments of the Parties

Appellant's Arguments

• The general rule confirmed in In re T is that no order for costs should be made in children cases unless a party has acted reprehensibly or unreasonably; neither applied here.
• An award against a Local Authority risks diverting limited children’s services budgets away from child protection.
• The Court of Appeal failed to identify any conduct justifying departure from the normal rule.

Respondent's Arguments

• Parents should not be deterred from challenging decisions affecting “the most crucial of human relationships.”
• The Local Authority resisted the appeal despite acknowledging deficiencies in the first-instance judgment, making a costs order fair and within the broad discretion under CPR 44.
• Distinctions from In re T exist: this was an appeal (not a trial) and involved a parent seeking to care for his child rather than interveners clearing their names.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court reaffirmed that children proceedings, whether at first instance or on appeal, are quasi-inquisitorial and aimed at securing the child’s welfare; consequently there are ordinarily no “winners” or “losers.” Building on In re T, Judge Hale identified two established exceptions warranting a costs order: (1) reprehensible behaviour and (2) an unreasonable litigation stance. The Court declined to recognise any broader, category-based exceptions, emphasising that:

• Local Authorities should be neither in a better nor worse position than private parties; imposing costs risks reducing scarce child-protection resources.
• The availability or absence of public funding is irrelevant to the just result.
• Pro bono representation does not itself justify an order, as section 194 of the Legal Services Act 2007 directs the court to apply the same costs principles.
• While parental hardship might in exceptional cases threaten a child’s welfare and justify a costs order, such a situation was neither argued nor established here.

Applying those principles, the Court found:

• No allegation, finding, or evidence of reprehensible conduct by the Appellant.
• The Appellant’s decision to resist the appeal, supported by professional assessments and the children’s guardian, was within the range of reasonable responses.
• The Court of Appeal therefore erred in treating the mere fact of the father’s success, coupled with funding difficulties, as a sufficient basis for a costs order.

Holding and Implications

APPEAL ALLOWED; THE COSTS ORDER AGAINST THE APPELLANT IS SET ASIDE.

Implications: The decision consolidates the principle that costs orders in public-law children cases, including on appeal, remain exceptional. Unless a party’s conduct is reprehensible or unreasonable – or some other clearly demonstrated, welfare-based ground exists – each side ordinarily bears its own costs, regardless of funding arrangements or pro bono representation. The ruling aims to prevent deterrence of legitimate participation in children’s proceedings and to protect finite resources dedicated to child welfare.