Raqeeb v Barts Health NHS Trust (Costs)

I am concerned with an application for costs arising out of linked matters in the Administrative Court and the Family Division concerning Tafida Raqeeb, born on 10 June 2014 and now aged five years old. The applications with which the court has been seised are an application by Tafida for judicial review of the decision by the Barts Health NHS Trust (hereafter ‘the Trust’) to refuse to permit Tafida to travel to

Tafida is represented in the application for judicial review by Mr Vikram Sachdeva, Queen’s Counsel, and Ms Nicola Kohn through her litigation friend, XX, a relative.

It is not necessary once again to set out the background to this matter. That background is set out in Raqeeb v Barts Health NHS Trust [2019] EWHC 2531 (Admin) and [2019] EWHC 2530 (Fam)). At the conclusion of the final hearing in this matter I made the following decisions:

Within this context, Tafida, as claimant in the judicial review proceedings contends that she succeeded in her claim for judicial review and that costs should follow the event. Tafida also appears to contend that she should recover the costs of the proceedings under the Children Act 1989, although the submissions of Mr Sachdeva QC and Ms Kohn on her behalf concentrate on the position in the judicial review proceedings. The parents do not seek to recover their costs in the judicial review proceedings but do seek an order for costs in the proceedings under the Children Act 1989. The Trust opposes the applications for costs in each set of proceedings and submits that in each set of proceedings the parties should bear their own costs.

At the conclusion of the substantive hearing I directed that the question of costs would be dealt with on paper. Within this context, I have received helpful written submissions on costs from each party, the last of those written submissions being received by the court on 29 October 2019.

Within the foregoing context, Tafida as the claimant in the proceedings for judicial review contends through her litigation friend, that she was successful in her claim for judicial review and that, pursuant to the general rule in CPR 44.2(2) she is entitled, as the successful party, to her costs from the unsuccessful party, namely the Trust. Within this context of the matters the court is required to take into account when deciding the question of costs, Mr Sachdeva and Ms Kohn identify the key questions in this case as:

Mr Sachdeva and Ms Kohn submit that Tafida is clearly the successful party in circumstances where:

In these circumstances, relying on the decision of the Supreme Court in R (Hunt) v North Somerset Council [2015] 1 WLR 3575, Mr Sachdeva and Ms Kohn submit that where a party who has been given leave to bring a claim for judicial review succeeds in establishing that the defendant acted unlawfully, some good reason will have to be shown why the claimant should not recover her reasonable costs. They submit that the Trust has advanced no good reason why it should not pay the costs in circumstances where the court has determined that its decision was unlawful.

Within this context, Mr Sachdeva and Ms Kohn submit that neither the fact that the court refused to quash the decision of the Trust having regard to the terms of s 31(2A) of the Senior Courts Act 1981 nor that the court limited its remedy to the judgment itself, amounts to a good reason for Tafida not to recover her reasonable costs, Mr Sachdeva and Ms Kohn submitting that s 31(2A) contains no suggestion that the costs of the claim should be refused in those cases where s 31(2A) applies.

In addition, Mr Sachdeva and Ms Kohn rely in certain respects on what they contend was the inappropriate conduct by the Trust of the litigation. In particular, Mr Sachdeva and Ms Kohn submit that:

Within this context, Mr Sachdeva and Ms Kohn submit that an order should be made in favour of Tafida that the Trust pay her costs of both the judicial review proceedings and the proceedings under the Children Act 1989 and the inherent jurisdiction of the High Court on the standard basis. With respect to the claim for costs in the proceedings under the Children Act 1989 Mr Sachdeva and Ms Kohn do not address their submissions to the principles that ordinarily apply to the question of costs in such proceedings.

By their written submissions, Mr Lock QC and Mr Quintavalle make clear that the parents do not seek their costs in the claim for judicial review.

In response to the costs submissions made on behalf of Tafida in the proceedings for judicial review, the Trust seeks to resuscitate its assertion, which assertion formed a persistent theme at the final hearing, that Tafida (and those acting on her behalf) brought the claim for judicial review, and sought an anterior procedural ruling in those proceedings, in a calculated attempt to obviate the need for any decision by the Family Division as to her wider best interests or to defer such a decision until Tafida was a patient in the Gaslini Hospital, and in addition to obtain a mandatory order compelling her discharge to the Gaslini. The Trust submits that proving the unlawfulness of the Trust’s decision was merely a step towards this ultimate, carefully calculated goal of avoiding a best interests decision for Tafida in the domestic courts.

Within this context, the Trust submits that it cannot be said that Tafida was successful in her claim for judicial review. First, the Trust contends that Tafida did not succeed in obviating the need for any decision by the Family Division as to her wider best interests or in deferring such a decision until Tafida was a patient in the Gaslini Hospital, which as I have noted the Trust contends was the motivation underlying the claim for judicial review. Second, the Trust reminds the court that Tafida was granted no remedy in the judicial review. Third, the Trust submits that the outcome of the judicial review was always going to lead to the court having to determine Tafida’s best interests in proceedings under the Children Act 1989 and the Trust had already commenced the established, and correct procedure.

Finally, with respect to the litigation conduct, the Trust makes the following submissions which it submits bear on the question of costs in the proceedings for judicial review:

In the circumstances, the Trust invites the court to make an order that the parties to the judicial review proceedings each bear their own costs.

On behalf of the parents, Mr Lock and Mr Quintavalle submit that s 51(1)(b) of the Senior Courts Act 1981 and FPR r 28.1 confer a wide discretion on the court in respect of courts, with no statutory provision or rule of court that prevents the parents being awarded their costs in the proceedings under the Children Act 1989 and the inherent jurisdiction of the High Court.

Within this context, Mr Lock and Mr Quintavalle’s first submission is that the strongest argument in favour of making a costs order against the Trust is that to refuse to do so, in circumstances where these proceedings engaged the core Art 8 rights of the parents, would result in an unacceptable inequality of arms as between the parents and the State. Within this context, the broad discretion conferred by s 51(1)(b) of the Senior Courts Act 1981 and FPR r 28.1 should be exercised to ensure there is no inequality of arms by making a costs order in favour of the parents.

Developing this primary submission, Mr Lock and Mr Quintavalle remind the court that, unlike parents involved in public law children proceedings under the Children Act 1989 responding to an application by a State authority concerning the best interests of their child and the ECHR rights of their child and themselves, the parents in this case are not entitled to non-means, non-merits tested legal aid to meet the costs of responding to an action brought by a different State authority under the Children

Within the foregoing context, Mr Lock and Mr Quintavalle submit that an important component of the parents’ rights under Art 6 in an action brought by a State authority that engages the parents’ core ECHR rights is that of ‘equality of arms’. Mr Lock and Mr Quintavalle submit that, in circumstances where the State has accepted that the Art

In the circumstances, Mr Lock and Mr Quintavalle submit that where there is no legal aid available, it would be a breach of the parents’ rights under Art 6 for their ability to participate in these proceedings to be contingent on being able to afford the considerable financial resources necessary to be able to do so. Within this context, Mr Lock and Mr Quintavalle further submit that, absent public funding being available from the Legal Aid Agency or HMCTS, the only candidate for public funding is the Trust, as there is no other public body who can reimburse the costs of the parents’ exercise of the Art 6 rights within proceedings brought by the State concerning the welfare of their child and their Art 8 rights, in which proceedings the rules provide that the parents are named as respondents and in which they are, accordingly, required to participate and in which it is essential that they do so.

By their second submission, Mr Lock and Mr Quintavalle acknowledge within their submissions that there are policy reasons for the disapplication by FPR r 28.2(1) of the rule in CPR r 44.2(2)(a) that the unsuccessful party will be ordered to pay the costs of the successful party. By reference to the decision of the Supreme Court in Re T (Children) [2012] UKSC 36 and the decision of Cobb J in E-R (Child Arrangements) [2016] EWHC 805 (Fam), Mr Lock and Mr Quintavalle extract the following reasons underlying the general practice of not awarding costs in public law cases brought by local authorities involving children:

Mr Lock and Mr Quintavalle submit however, that none of the policy reasons identified in the authorities as militating against the making of a costs order in proceedings relating to children apply in this case. In particular:

By their third submission, Mr Lock and Mr Quintavalle submit that the manner in which the Trust conducted the proceedings also supports the making of a costs order against the Trust. The parents rely on four matters in this regard:

In the circumstances, on behalf of the parents, Mr Lock and Mr Quintavalle invite the court to make an order that the Trust pay the parents’ costs of the proceedings under the Children Act 1989 on the standard basis.

As I have noted, in their submissions on costs, Mr Sachdeva and Ms Kohn conflate the proceedings for judicial review and the proceedings under the Children Act 1989 and seek the global costs of the same.

Against these submissions, the Trust contends that the appropriate order in the proceedings under the Children Act 1989 is no order as to costs, in line with the conventional approach in proceedings relating to children. Within this context, the Trust submits that the established and conventional costs order on a medical treatment application brought by an NHS Trust is that the Trust and the parents each bear their own costs. The Trust submits that there is no precedent for an NHS Trust being ordered to pay the parents’ costs in a case of this nature and that there is no reason to depart from that approach in this case.

In support of this submission, the Trust submits that the Trust had no choice but to make an application for a determination of Tafida’s best interests in circumstances where there was a disagreement between the parents and the treating clinicians as to those best interests. Within this context, the Trust submits that, as the court found, it was required to make the application in the fulfilment of the Trust’s duty of care to Tafida and pursuant to its obligations under s 11(2)(a) of the Children Act 2004, absent which application a void would have existed in respect of consent.

The Trust further submits that the application for an order under s 8 of the Children Act 1989 was a reasonable course of action in circumstances where the unanimous views of Tafida’s treating team, Dr Smith, Dr Playfor and the treating team at the Gaslini Hospital that further treatment would not provide any benefit. Within this context, the Trust relies on the fact that the question of whether, in these circumstances, it is in the best interests of a child to have life-sustaining treatment withdrawn is for the court and not the Trust. The Trust reminds the court that it found that decision to be a very finely balanced one.

The Trust also submits that the policy reasons that underpin the conventional rule that the appropriate order for costs in cases concerning children is no order apply not only to welfare proceedings brought by local authorities but also to welfare proceedings brought by NHS Trusts:

With respect to the submissions made by the parents pursuant to Art 6 of the ECHR in the absence of non-means, non-merits tested legal aid for cases of this nature, the Trust submits that in circumstances where the final hearing has already taken place in which the parents were more extensively represented than the Trust, and in which they participated fully with the benefit of that representation, there was no inequality of arms as a matter of fact.

Further, the Trust submits that in circumstances where the parents’ case and that of Tafida were coterminous, the parents were able to benefit from the independent medical report prepared by Dr Playfor.

Finally, the Trust points out that the parents in any event had access to private funding for their legal costs by virtues of the ‘Go Fund Me’ campaign that they launched online (and which was supported by the Sun newspaper). The Trust reminds the court that that campaign was expressly characterised by the parents as being to raise funds to meet their legal costs (I note that by an email to the court dated 29 October 2019, informing the court of the parents’ decision to appeal the decision of the court in the claim for judicial review, the solicitor for the parents confirmed that the parents have funds in place to lodge an appeal).

With respect to the conduct of the litigation under the Children Act 1989 the Trust responds as follows to the criticisms levelled by the parents:

In the circumstances, the Trust invites the court to conclude that the appropriate order in the proceedings under the Children Act 1989 is no order as to costs.

Whilst CPR Part 44 remains (in part) applicable to costs in proceedings under the

Costs in cases of judicial review are governed by Part 44 of the CPR. CPR r 44.2 provides as follows with respect to the governing principles:

“Court’s discretion as to costs

44.2

(1)

The court has discretion as to –

(a)

whether costs are payable by one party to another;

(b)

the amount of those costs; and

(c)

when they are to be paid.

(2)

If the court decides to make an order about costs –

(a)

the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)

the court may make a different order.

(3)

The general rule does not apply to the following proceedings –

(a)

proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

(b)

proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

(4)

In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a)

the conduct of all the parties;

(b)

whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c)

any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5)

The conduct of the parties includes –

(a)

conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – PreAction Conduct or any relevant pre-action protocol;

(b)

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)

the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d)

whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

(6)

The orders which the court may make under this rule include an order that a party must pay –

(a)

a proportion of another party’s costs;

(b)

a stated amount in respect of another party’s costs;

(c)

costs from or until a certain date only;

(d)

costs incurred before proceedings have begun;

(e)

costs relating to particular steps taken in the proceedings;

(f)

costs relating only to a distinct part of the proceedings; and

(g)

interest on costs from or until a certain date, including a date before judgment.

(7)

Before the court considers making an order under paragraph (6)(f), it will consider whether it is practicable to make an order under paragraph (6)(a) or (c) instead.

(8)

Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so.”

In identifying the successful party, the court may be assisted by considering which party, on the particular facts of the case, has as matter of substance and reality won (see Roache v Newsgroup Newspapers Ltd [1998] EMLR 161). However, in circumstances where the court must take into account all the circumstances of the case when exercising its discretion as to costs, the question of who is the successful party for the purposes of exercising that discretion will likewise depend on all the circumstances, and hence on the facts of the particular case.

Where a party is identified as the successful party it is important that proper weight be attached to that conclusion and that the starting point for the exercise of the courts discretion is the general rule that the unsuccessful party pays the costs of the successful party. The general rule does not cease to apply simply because the successful party also raises issues or makes allegations that fail (particularly where unsuccessful arguments raise fundamental human rights issues of public interest beyond the parties), although where these issues or allegations result in a significant increase in the length or costs of the hearing, the successful party may be deprived of the whole or part of the costs (see A.E.I. Redfern Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1207) the court having regard pursuant to CPR r 44.2(4)(b) and 44.2(5)(b) whether it was reasonable for the party to pursue or contest a particular allegation or issue.

With respect to the question of ‘successful party’ in an application for judicial review, in R (Hunt) v North Somerset Council [2015] UKSC 51 the Supreme Court was concerned with an appeal from a decision of the Court of Appeal in which that court decided the substantive issues in a judicial review in favour of the appellant declined to grant any relief, following which the appeal was dismissed and the appellant ordered to pay half the respondent’s costs. Allowing the appeal, Lord Toulson observed as follows at [12] to [17] in relation to costs:

“[12] The judgment of the Court of Appeal itself ruled that the respondent acted unlawfully, and the authority of the judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect. However, in circumstances where a public body has acted unlawfully but where it is not appropriate to make a mandatory, prohibitory or quashing order, it will usually be appropriate to make some form of declaratory order to reflect the court’s finding. In some cases it may be sufficient to make no order except as to costs; but simply to dismiss the claim when there has been a finding of illegality is likely to convey a misleading impression and to leave the claimant with an understandable sense of injustice. That said, there is no “must” about making a declaratory order, and if a party who has the benefit of experienced legal representation does not seek a declaratory order, the court is under no obligation to make or suggest it.

[13]

The appellant is on much stronger ground in relation to costs. The submissions to the Court of Appeal on his behalf made no reference to the costs at first instance, and it was remiss to agree to an order that the appeal should be dismissed, when there were obvious grounds for arguing that in relation to costs the judge’s order should be set aside and replaced by an order in the appellant’s favour. However, in relation to the costs in the Court of Appeal, the points were properly made that the appellant had succeeded on both the issues as to the respondent’s statutory duty; that there were wider lessons for local authorities to learn from the case about their duties under each of the relevant sections; that the lapse of time, as a result of which the relevant financial year had now passed, was not the fault of the appellant; and that to deny the appellant his costs would be likely in practice to dissuade claimants from pursuing legitimate public law challenges. The respondent submitted that the appellant had not in substance been successful; that he had not obtained any result of any practical utility; and that he had known about the practical problems which would be involved in attempting to unwind the budget from evidence submitted by the respondent before the original hearing.

[14]

Delivering the reasons for the court’s judgment on costs, ([2013] EWCA Civ 1483) Rimer LJ said that by the time that the appeal came on for hearing, it was far too late to consider granting any relief (by which he must have had in mind a quashing order), even if – as to which the court had doubts – it might have been appropriate for relief to be granted a year earlier when the matter was before Wyn Williams J. He continued:

“5.

In these circumstances, the court considers that it would be wrong in principle to award any costs to Mr Hunt. The appeal proved to be of no practical value to him; and, in the court’s view it was always one which was destined to fail.

Pursuant to FPR r 28.1 the court may make such order as to costs in proceedings under the Children Act 1989 as it thinks just. Pursuant to FPR r 28.2, CPR Part 44 applies to costs in proceedings under the Children Act 1989 save for CPR r 44.2(2) (the general rule that the unsuccessful party will pay the costs of the successful party) and (3) and r 44.10(2). Accordingly, the rule that costs ordinarily follow the event does not apply to proceedings under the Children Act 1989. Within this context, in Re T (Costs: Care Proceedings: Serious Allegations Not Proved) [2013] FLR 133 the Supreme Court noted the rarity of costs orders being made in children’s cases save where the conduct of the party has been reprehensible or where the party’s stance has been beyond the band of that which is reasonable.

With respect to ‘equality of arms’ under Art 6 of the ECHR, I note that in R v Gudanaviciene v Director of Legal Aid Case Worker [2015] 1 WLR 2247 Lord Dyson MR summarised the relevant principles to be drawn from the European case law as follows at [46]:

With respect to the procedural aspects of Art 8 and the principle of ‘equality of arms’, in W v United Kingdom (1987) 10 EHRR 29 at [64] the ECtHR observed as follows:

“In the court's view, what therefore has to be determined is whether, having regard to the particular circumstances of the case and notably the serious nature of the decisions to be taken, the parents have been involved in the decision-making process, seen as a whole, to a degree sufficient to provide them with the requisite protection of their interests. If they have not, there will have been a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as ‘necessary’ within the meaning of article 8.”

In R v Croydon London Borough Council at [1] Lord Neuberger observed that the issue of costs is highly fact sensitive and very much a matter for the first instance tribunal. This principle will apply to the question of who is the successful party for the purposes of the exercise of the discretion as to costs. Within this context, the decision of this court on Tafida’s application for judicial review can be summarised as follows:

In the circumstances, the Claimant succeeded, in the face of opposition by the Trust, in establishing (a) the fact of the Trust’s decision, (b) that that decision was amenable to judicial review, (c) that the Trust had acted unlawfully when taking its decision, and (d) that the Trust had made the exercise by Tafida of her Art 56 rights impossible. Further, as a result of the claim for judicial review, clarification was provided as to the proper course of action for NHS Trusts in the future with respect to children’s directly effective EU rights in this context. Within this context, I regard the Claimant as plainly falling within the category of a successful party to the proceedings for judicial review. Tafida established the public law ground contended for, namely illegality.

I accept that Tafida did not obtain a remedy for the illegality she established in circumstances where the court was satisfied that the case had reached the same point that it would have done had the Trust properly taken its decision. However, having regard to the decision of the Supreme Court in R (Hunt) v North Somerset Council I am not satisfied that this is a proper reason for depriving Tafida of a costs order in her favour, particularly in circumstances where the court did not mark the illegality on the part of the Trust by way of a declaration. Within the context of judicial review, the question of whether the ground or grounds pleaded by the claimant is or are established is a binary one. However, when considering any relief consequent on that established ground the court has a wide discretion. Within this context, and consistent with the decision in R (Hunt) v North Somerset Council, I am of the view establishing the public law ground contended for is a more reliable indicator of success in the context of the question of costs than is the nature and extent of any discretionary relief subsequently granted for that default. In addition, I have taken account of the fact that the application resulted in lessons of general application beyond this case for NHS

Finally, I must also recognise that the Claimant was not successful in her submission that the decision of the Trust had deprived her of her liberty pursuant to Art 5. With respect to the argument regarding the contended for deprivation of liberty, that argument was advanced notwithstanding that the Court of Appeal has twice expressed the view that a person is not being deprived of their liberty where they are receiving treatment and are restricted physically by their infirmities and by the treatment they are receiving (see Evans v Alder Hey Children’s NHS Trust [2018] 4 WLUK 624 at [12] and Gard [2017] 4 WLR 131). Within this context, that argument was always bound to fail and time should not have been taken up with it, requiring as it did the respondent to respond orally and in writing.

Within the foregoing context, satisfied as I am that Tafida was the successful party in the claim for judicial review, I can find no reason for disapplying ordinary rule in proceedings of this nature that the unsuccessful party should pay the successful parties costs. I am not satisfied that, however many times the Trust chooses to advance the submission, that there is any basis for concluding that the application for judicial review was some species of calculated campaign to deprive Tafida of a best interests decision and hence any basis to deprive Tafida of her costs of the judicial review on that reasoning. I reach the same conclusion with respect to the other aspects of alleged ‘conduct’ raised by the Trust. However, given my observations above regarding the submissions concerning deprivation of liberty, I am satisfied that the Claimant should not recover that part of her costs relating to the submissions concerning Art 5 of the ECHR. Adopting a broad approach and having regard to the amount of time taken on that point, I am satisfied that an order for costs should be made in favour of the Claimant that she should recover 80% of her costs of the application for judicial review from the Respondent Trust, to be assessed on the standard basis if not agreed.

I am not however persuaded, in the different context constituted by proceedings under the Children Act 1989, that it is appropriate to make a costs order in favour of the parents in those proceedings. The latter proceedings concerned a best interests decision under Part II of the Children Act 1989. Whilst it is the case that within those proceedings the parents persuaded the court to reach a conclusion consistent with their articulation of what was in Tafida’s best interests, and to that extent have been successful, in my judgment there are powerful arguments against making a costs order in favour of the parents in the proceedings under the Children Act 1989.

I am not at all persuaded by the primary costs submission made by the parents that to refuse to make a costs order against the Trust, in circumstances where these proceedings engaged the core Art 8 rights of the parents, would result in an unacceptable inequality of arms as between the parents and the State in breach of Art 6 of the ECHR.

Most obviously, there was, as a matter of fact, no inequality of arms in the proceedings. The parents had the benefit of a highly experienced team of solicitors and were represented by specialist leading and junior counsel throughout the hearing.

Further, and within this context, absent any inequality of arms for the purposes of Art 6, whilst I acknowledge there is an apparent inconsistency in the approach to public funding as between a parent who is facing care proceedings concerning the welfare of their child brought by the State, in the guise of the local authority, and a parent who is facing proceedings of the instant nature brought by the State, in the guise of an NHS Trust, that is a matter for Parliament and not for the court. In considering whether to grant an order for costs, the court assesses that question against well settled criteria and well settled principles that have specific application in proceedings relating to children and on the facts of the individual case. To make an order for costs against a public body simply to remedy the fact that Parliament has not provided for public funding in the circumstances in question would be impermissible unless such a costs order is justified on ordinary principles in the particular circumstances of the case. It is not for the court to fill a lacuna by making a costs order against an NHS Trust where there is otherwise no principled basis for such an order on ordinary principles.

In the foregoing context, whether a costs order should be made in favour of the parents in the proceedings under the Children Act 1989 falls to be determined on the principles that ordinarily apply to the making of costs in proceedings concerning the welfare of children under the 1989 Act, and in particular proceedings concerning the welfare of children that are brought by public bodies that are under a duty to do so.

I am not persuaded that there is a distinction to be drawn between a local authority that brings care proceedings in respect of a child about whom there are welfare concerns and an NHS Trust which brings proceedings in respect of a child about whom there are differences of opinion between the parents and the treating doctors over what is in that child’s medical best interests. Both are bodies of the State, both are under a duty to place the welfare issue before the court where there is a dispute to be resolved and in both cases there is a public interest grounded in the welfare of the child in ensuring that neither local authorities nor NHS Trusts are deterred from discharging that duty by the prospect of costs orders.

Within this context, the Trust had no choice but to make an application for a determination of Tafida’s best interests in circumstances where there was a disagreement between the parents and the treating clinicians as to those best interests. The Trust was obliged to make such an application in the fulfilment of the Trust’s duty of care to Tafida and pursuant to its obligations under s 11(2)(a) of the Children Act 2004 otherwise a void would have existed in respect of consent. More fundamentally, the Trust had to make the application because, as I found, that is the procedure that is mandated where there is an unresolvable disagreement between doctors and parents as to a child’s best interests.

Within this context, I accept that the consequences of making a costs order against a Trust in the foregoing circumstances is likely to risk a chilling effect were Trust to be penalised in costs for bringing, and ‘losing’ a finely balanced case which it is was its duty to bring before the court. More generally, if NHS Trusts are at risk of a costs order on ‘losing’ an application under s 8 of the Children Act 1989 in a case of this nature, in what is already a complex, difficult and contentious area of law, I am satisfied that there is a risk that Trusts will be deterred from making such applications by the tension between their safeguarding obligations in relation children who are not deriving benefit from life sustaining treatment and the duty to fund the treatment needs of all patients. Further, I accept that there is a risk that where the parents have secured private funding for all treatment the risk of costs will tempt Trusts to depart from medical opinion and to prefer the fully funded position of the parents, which preference avoids the costs risk. I am satisfied that each of these risks is not fanciful when the submissions of the Trust are considered through the prism of the widely acknowledged pressure on resources in the NHS. Within this context, I further accept the submission of the Trust that such an outcome would affect the children most in need of a judicial determination of their best interests, namely those where the decision is a finely balanced one and therefore where the ‘litigation risk’ presented by proceedings that put the Trust at risk of costs concomitantly higher.

In the foregoing context, I am persuaded that the ordinary approach to the making of of costs orders in proceedings concerning the welfare of children under the Children Act 1989 should apply in these proceedings, namely that such an order should be the exception and not the rule. In these proceedings, I am further satisfied that this principle is given even greater focus by the finely balanced nature of the decision in this case. Within this context, I am not satisfied that the arguments concerning equality of arms or matters of ‘conduct’ that the parents seek to raise amount to reasons to make, exceptionally, a costs order in the proceedings under the Children Act 1989. Finally, I have also had regard to the fact that the parents have in this case raised a significant sum of money that was expressly stated to be for the funding of legal costs. In those circumstances, I am still less inclined to risk the disadvantages of departing from the ordinarily approach.

Finally, in so far as it is suggested by Mr Sachdeva and Ms Kohn that Tafida should also recover her costs in the proceedings under the Children Act 1989 there are two difficulties with that submission. Firstly, Mr Sachdeva and Ms Kohn do not represent Tafida in the proceedings under the Children Act 1989, that role being fulfilled by CAFCASS and Mr Gration. The latter make no application for costs in the proceedings under the 1989 Act. Second, and in any event, the principles I have set out above that render costs orders in proceedings under the 1989 Act the exception and not the rule apply with equal force to the costs incurred in those proceedings by Tafida.

In these circumstances, I am satisfied that the appropriate order for costs in the proceedings under the Children Act 1989 is no order as to costs.

For the reasons given above, I shall order the Trust to pay 80% of Tafida’s costs of the proceedings for judicial review to be assessed on the standard basis if not agreed.

That is my judgment.