HB v PB

At the conclusion of a four day fact-finding hearing in private law Children Act 1989 proceedings, I have been invited to make a costs order against a non-party; that non-party is a Local Authority, the London Borough of Croydon, which had been directed by the Court to prepare a report in the proceedings pursuant to section 37 of the Children Act 1989.

The application is made by the father, privately instructing his legal team; the claim arises as a result of a wasted earlier listed fact-finding/final hearing. The mother (publicly funded) has chosen not to make a similar application.

Although the sum claimed is relatively modest by the standards of some High Court family litigation (£10,311), the point of principle engaged is important.

I outline for these purposes only such background information as is relevant to the determination of this issue of costs. My review of the full history of this case thus far has been rehearsed in a separate judgment.

OB was born on the 31^st July 2007 and is therefore nearly 6 years old. He is the only child born to the relationship of the mother (hereafter “the mother”), and the father (“the father”); the mother has two other children: one older, one younger. The parents met in 2006 and cohabited for a period of time; they finally separated in or about February 2012 when the father moved out of the mother’s home. In March 2012, the father did not return OB to the mother after an agreed contact visit; this perhaps inevitably provoked court process. The mother made a ‘without notice’ application on 20 March 2012 before DJ Parker at the Croydon County Court and obtained a specific issue order to secure OB’s return. She further sought a section 8 residence order.

The father cross-applied for section 8 orders, and on the return date of the mother’s ‘without notice’ application, he was directed by the court to set out the essence of his case, in summary, in writing. In doing so, he raised a number of serious allegations about the behaviours of the mother which, he said, were relevant to the determination of the issues of residence and contact. I summarise the principal contentions (the list of specific findings was much longer) as follows:

Over a number of years, the mother had falsely led the father (and the paternal family) to believe that she was suffering from cancer of the womb, vagina and brain, and had tumours behind her eye and neck, and that (by early 2012) she only had a number of months to live;

From early in OB’s life, the mother had falsely led the father (and the paternal family) to believe that OB was suffering from a number of serious medical conditions, including untreatable stomach and bowel problems which may require removal of his bowel and the application of a colostomy pouch;

From early in OB’s life, the mother had falsely led the father and the paternal family to believe that OB was lactose intolerant and allergic to over 4,000 foods; she asserted that doctors had advised that OB should not eat solid food;

That the mother had led the father and the paternal grandmother and the paternal aunt to believe that OB may ultimately require a feeding tube and that the paternal grandmother had been informed that OB may die from his medical conditions.

These serious allegations sometimes carry the generic description of ‘fabricated illness’. At the fact-finding hearing, I made clear that I did not consider it appropriate to use a label to describe the alleged behaviours of the mother; however (as will become apparent) the use of the term is relevant to the instant application insofar as it is used within the applicable guidance for social workers undertaking assessments, namely the Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in whom illness is fabricated or induced (supplementary to Working Together to Safeguard Children (2006)). That guidance was issued by the Department for Children Schools and Families [“DCSF”] in 2008 under Section 7 of the Local Authority Social Services Act 1970; accordingly, local authorities are expected to comply with that guidance in carrying out their social services functions, unless local circumstances indicate exceptional reasons that justify a variation. The guidance was also issued under Section 16 of the Children Act 2004 which requires Children’s Services Authorities and each of their Board partners, in exercising their functions in relation to LSCBs, to have regard to it.

Unsurprisingly, in light of the allegations made by the father (summarised at §6 above), when the matter came before the court for a further hearing on 3 April 2012, District Judge Parker made an order under section 37 directing a report from the London Borough of Croydon. Such an order is made where a court considers that “it may be appropriate for a care or supervision order to be made with respect to” a child.

The report was due to have been filed by 4pm on 29 May 2012 (i.e. within the statutory 8-week timeframe: per section 37(4) CA 1989).

The Local Authority allocated responsibility for the report to a social worker, Mrs O. The report was apparently signed by her on 10 June 2012, and filed on 2 July 2012, five weeks after the directed date.

The parents’ cross-applications were listed for pre-hearing review on 8 November 2012; at that hearing the Local Authority was directed to file and serve a letter/updating report setting out details of their further assessment of the mother. This report was to be filed on 22 November 2012. This report was completed and filed on time.

The hearing of the parents’ cross-applications, listed as a final hearing with a time estimate of 3 days, began on 10 December 2012. It was acknowledged by the parties that in the event that the court were to make positive findings on the father’s allegations at this hearing, the applications would need to be adjourned for further consideration on welfare.

At that hearing, Mrs O attended (with her Team Leader Margaret Gordon) and gave oral evidence. I have a note of that evidence, which Mr. Calway (on behalf of the Local Authority) acknowledges to be a ‘fair summary’. It is apparent from the questions and answers (some of which are set out in §27-28 below) that in preparing her section 37 report, Mrs O had not considered the DCSF Guidance referred to above, the existence of the “Incredibly Caring Programme” (Bools & o’rs [2007], recommended in the DCSF Guidance at §6.52/6.60) used to train social workers in dealing with cases of fabricated illness, nor the guidance in Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045.

Following the conclusion of (and having heard) that evidence, the Team Leader Ms Gordon indicated that the local authority wished to reconsider its position overnight. The matter was therefore adjourned on the basis that Mrs O and Ms Gordon would attend court at 9.30am the following morning.

In fact the social workers attended court late giving no opportunity for discussions with the parents’ advocates, and Mrs. Gordon was called straight into the witness box; she gave short evidence. Again, I have the notes of the evidence, and Mr. Calway again acknowledges the fairness of the summary (see §29 below). Following that evidence, the parties entered into discussions which led the Local Authority to indicate a wish to hold a legal planning meeting urgently to consider the case. The parties agreed that the hearing could not proceed, let alone conclude effectively, and given the complications and the difficulties of listing the case quickly in Croydon, the case was transferred to the High Court for urgent directions on 14 December. The position of the Local Authority was recorded in the face of order, thus:

that it would hold a legal planning meeting and take a decision as to whether or not to issue proceedings before the hearing on 14 December 2012, and

it would attend and be represented at the hearing on 14 December 2012 to explain why it should not pay the costs of the hearing on 10-11 December 2012.

The trial judge, DJ Mills, further directed the Local Authority to file and serve a short report for the directions hearing, outlining the reasons for the decisions reached at the forthcoming planning meeting. That report (dated and filed on 13 December) reads as follows (reproduced in its entirety):

whether or not threshold is met and;

if threshold is met whether or not the Local Authority will be issuing care proceedings in respect of OB.

The directions hearing was listed before Hogg J on 14 December 2012; a direction for a further section 37 report was made. The costs of the hearing on the 10 to 11 December and the 14 December hearing were reserved and the Local Authority was given permission to be represented on the last day of the fact-finding hearing to show cause why they should not pay the costs of the December hearings.

A subsequent section 37 report was prepared and filed. This report was filed nearly four weeks late, on 27 February 2013 (see below).

The fact-finding hearing was listed before me on 18 March with a time estimate of 4 days. During that hearing, I heard brief evidence from Mrs O (see my summary conclusion on that evidence at §34 below). In the event, due to shortness of time, it was agreed between the father and the Local Authority that the costs application would be dealt with by way of written submissions. The mother indicated that she was not pursuing her costs. I gave directions for the filing of skeleton arguments. I have received representations from Mr. Jarmain on behalf of the father, and Mr. Calway on behalf of the Local Authority.

At §8 above, I set out the circumstances in which a section 37 direction is given. Once the direction is given, the “appropriate authority” (defined in section 37(5) as the authority in whose area the child is “ordinarily resident”) is obligated to prepare a report within 8 weeks, and specifically address their minds (and report) to whether the Local Authority should (per section 37(2)):

apply for a care order or for a supervision order with respect to the child;

provide services or assistance for the child or his family; or

take any other action with respect to the child.

If the authority decides not to apply for a care or supervision order, it should advise the court what are their “reasons for so deciding”, providing information about “any service or assistance which they have provided, or to intend to provide, for the child and his family” and “any other action which they have taken, or propose to take, with respect to the child” (section 37(3)). It should also “consider whether it would be appropriate to review the case at a later date; and … if they decide that it would be, they shall determine the date on which that review is to begin” (section 37(6)).

I should add that these obligations are of course considerably more onerous, and focused, than the obligation which falls on an authority to prepare a report under section 7 of the Children Act 1989 which provides that:

The section 37 report prepared in this case (2 July 2012) was, even on a superficial read, in my judgment, of a poor standard, particularly given the issues engaged. It is apparent that the social worker undertook limited enquiries (principally by way of home visits to the parents, and a telephone call to OB’s school) and there are significant gaps in the report.

The report does not begin to address, in any meaningful way, the serious issues raised in the proceedings. While the author discusses to some extent the allegations made by the father about the mother’s conduct, her limited ‘analysis’ is reflected by these passages:

The author goes on to recommend a core assessment: “A Core Assessment will highlight any support [the mother] may require with caring for her children on a day to day basis, in order to meet their needs appropriately” (§19).

In the addendum letter of the 22 November (see §11 above), the Local Authority surprisingly observed:

At the hearing on 10 December 2012, the evidence from the social worker, Mrs. O, contained the following exchanges:

The social worker further informed the court of the following:

that she had had no training in relation to cases of fabricated illness;

that she was unaware of the DCSF 2008 Guidelines, or the ‘Incredibly Caring Programme’;

that she had not spoken to OB’s General Practitioner;

she had not visited OB’s school, nor enquired of the school what was known about OB’s health (“A: That was not my role. It was not relevant at the time…”; later: “we only visit school when carrying out a section 47 investigation”);

that she had not spoken to extended family members (even though the mother had made complaint to them of illness in herself and the child);

that she knew that the child’s attendance record at school was 69.4% in the relevant period (A: “if a child is sick, he’s sick”), indicating that this attendance record was “ok”;

as indicated above, that she did not know the test for an interim care order;

that she had no experience as a qualified practitioner in this type of case.

As indicated above (§15) on 11 December 2012, the Team Leader, Ms Gordon gave evidence. She indicated that “in light of yesterday I think we need to re-assess the situation”. She further informed the court that:

“None of the social workers have particular expertise of dealing with these types of cases.”;

There is no training in LB Croydon for dealing with cases of fabricated illness;

She herself was not familiar with the ‘Incredibly Caring Programme’;

She accepted that her social worker was not aware of the guidelines in the DCSF guidance;

She accepted that if the father’s allegations were true then there would be reasonable cause to believe that OB was at risk of harm;

That she had not taken legal advice in the case at all until after the conclusion of the social worker’s evidence on the previous day;

That the position of the Local Authority on 11 December was “very different” from the point of the delivery of the report.

There then followed, two days later, the Planning Meeting, the summary report of which has been reproduced in full at §16 above.

Pursuant to the direction of Hogg J. a further section 37 report was prepared, as indicated above, in February 2013. For the purposes of this additional enquiry, the social worker made further home visits, a school visit, and importantly she obtained OB’s health records from the relevant medical centre. The social worker also met extended members of both sides of the family.

Having completed those enquiries, the social worker expressed herself (more than once in the report) to be of the “professional view that [OB] has not or is likely to suffer significant harm whilst in the care of his mother” (§15.1).

At the conclusion of the report, the social worker commented:

Within the fact-finding hearing, I heard short evidence from Mrs O. In commenting on the section 37 reports in my fact-finding judgment, I said this:

Section 51(1) of the Senior Courts Act 1981 provides that, subject to rules of court, costs shall be in the discretion of the court. In family cases, the relevant rule governing the award of costs is rule 28.1 of the Family Procedure Rules 2010 which provides a wide discretion:

Rule 28.2 of the FPR 2010 imports aspects of the CPR 1998 to costs in family proceedings, including Rule 44 (though disapplying Rule 44.3(2), which provides that the unsuccessful party will be ordered to pay the costs of the successful party) and Rule 48.2, which deals with the court’s approach to making costs orders against non-parties under Section 51 of the Senior Courts Act 1981. Mr Calway rightly accepts that I have the wide jurisdiction to make the order sought pursuant to section 51.

It is neither necessary, nor probably helpful, for me to rehearse the principles which apply when the court exercises its costs discretion in family proceedings as between parties; this is amply covered by other authorities (see generally London Borough of Sutton v Davis (Costs)(No.2) [1994] 2 FLR 569, Re T (Children: Care Proceedings: Serious Allegations Not Proved) [2012] UKSC 36 ) [2013] 1 FLR 133, and for a recent illustration A & S v Lancashire County Council [2013] EWHC 851 (Fam)). I concentrate here instead on the principles which should apply when an application for costs is made against a non-party in family proceedings.

The submissions of counsel, and my own research, reveal limited authority on how the court should exercise its wide discretion in family cases to make orders against non-parties (other than lawyers). The cases of Northampton Health Authority v The Official Solicitor and the Governors of St Andrews Hospital [1994] 1 FLR 162 [1994] 1 FLR 162 and Sarra v Sarra [1994] 2 FLR 880 (neither of which are in fact directly on point) have been largely overtaken by subsequent civil authorities, the leading of which are Symphony Group Plc v Hodgson [1993] 4 All ER 143, CA and more recently Globe Equities Ltd v Globe Legal Services Ltd [1999] BLR 232 (“Globe Equities Ltd”).

The clear single proposition which emerges from the civil authorities is that such an order is an “exceptional” one. In Globe Equities Ltd, Morritt LJ (with whom Butler Sloss and Sedley LJJ agreed) said (at §21) that:

Both counsel in the instant case emphasised the section of the judgment underlined (above).

Morritt LJ (again with the consensus of the Court) went on to hold (and I include this for further clarification) that it is not necessary for a determination of the issue of exceptionality for there to be a finding that the conduct of the non-party was “improper” (§27). Specifically, he said:

I was also referred to the decision of Thomas J (as he then was) in the case of Kelly v South Manchester Health Authority [1997] 3 All ER 274; this provides support for the circumstances in which it may be appropriate to make a costs order against a non-party public body (the Legal Aid Board, now Legal Aid Agency). In that case, Thomas J. said:

For the father, Mr Jarmain contended that there has been a combination of ‘systemic’ and specific failures of the Local Authority which have fundamentally undermined the purported work for the section 37 enquiry; this in turn has led to the wasted court days in December 2012.

Mr Jarmain draws attention to recent authorities in which the courts have considered orders for costs against local authorities (as parties), highlighting the following propositions (in summary) as relevant to my consideration:

The general principles that orders for costs between the parties in children cases which would (i) diminish the funds available to meet the needs of a family or (ii) exacerbate feelings between two parents are not relevant when considering costs against a local authority Re T (Costs: Care Proceedings: Serious Allegations Not Proved) [2013] (supra) [§12];

Where a party local authority has caused costs to be incurred by acting in a way that is unreasonable, or has conducted itself in a reprehensible way, justice may well require that the local authority pay the costs in question: Re T (Costs: Care Proceedings: Serious Allegations Not Proved) [2013] (supra) [§13; §15];

Where in the course of the investigation of the inappropriate use of the health services in care proceedings, the court found that the authority had failed to:

properly investigate;

convene a strategy discussion or otherwise evaluate information relating to the children’s extensive involvement with health services; and

in general, pay proper heed to national guidance in cases where concerns of fabrication of illness are raised

He further submits that the DCSF Guidance Supplementary Guidance to Working Together to Safeguard Children: Safeguarding Children in whom illness is fabricated or induced should have been (and was not) followed by the Local Authority when the social worker investigated this case.

Mr Jarmain points to:

The evidence of Ms Gordon (when she confirmed that the local authority needed to reassess the situation in light of Mrs O’s evidence of the previous day: §29 above), and more specifically

the summary of the Planning Meeting (13 December) (see §16 above),

Mr. Calway realistically accepted that the investigations of the Local Authority were “inadequate”, explaining that the report was the product of “hard pressed allocated social workers and team managers who have a very considerable case load to manage”.

He was obliged to acknowledge that even by 14 December 2012, the Local Authority was openly accepting that further investigation was required before a section 37 report could be filed. He rightly conceded that the evidence showed that the DCSF Guidance had not been followed in this case. He added:

However, he contended (relying on the decision of the Court of Appeal in Northampton Health Authority v The Official Solicitor and the Governors of St Andrews Hospital [1994] 1 FLR 162 [1994] 1 FLR 162) that I should pay particular regard to the “exceptional” nature of the order sought, and that I should treat the application with “considerable caution”. He emphasised that such an order should be made only where “the non-party payer, although not a party to the proceedings, is so closely connected with, or responsible for, the proceedings as to make it just to saddle him with liability for the costs.” (per Northampton).

Specifically he invited me to consider, as relevant to my determination both on the principle and the quantum, that no application had been made by the father on 10 December for an adjournment.

I recognise that the human and financial resources of local authorities are currently more hard-pressed than ever; there will be (as there always have been) cases where minor failures in practice can be appropriately dealt with – formally and informally – in ways which do not involve financial penalty.

But in my judgment the failures in this case are not ‘minor’; they are extensive, and have had a profound effect on the conduct of the proceedings. The Local Authority has in my judgment failed fundamentally to investigate, address, or analyse the serious issues in the case raised by the father’s allegations when it prepared its section 37 report filed in July 2012 or at any time in the period which followed prior to the December 2012 hearing.

The inadequacy of the investigation and the report-writing can in some respects be ascribed to the inexperience of the social worker; that is not a matter of criticism, because experience has to be acquired over time and through professional practice. But the Local Authority’s failure here was, as Mr. Jarmain argued and I find, of a systemic nature; it was (as I have highlighted above, by reproducing the extracts of the summary of evidence) conceded by Ms Gordon that there was no training of social workers at the London Borough of Croydon in the assessment or management of cases of this kind. To compound that failing it would appear that:

there was no, or no effective, line-management of the key social worker undertaking an assessment of this complexity;

there was inadequate experience or awareness of the implications of the relevant guidance even by the Team Leader.

I am satisfied that Mr Jarmain has further made good his complaint against the Local Authority in the following additional ways:

The Local Authority failed to attach any, or any appropriate, significance to the important national published guidance relevant in cases of this kind;

There was a failure on the part of the Local Authority to ensure that the allocated social worker was aware of the relevant Guidance;

Neither the allocated social worker nor her manager (Team Leader) sought legal advice on the implications of the case, or the issues raised by the section 37 direction, prior to the evening following the first day of evidence (10 December), some eight months after the direction for the report, and five months after filing the report; such advice was only sought after the social worker had sought to defend her report and its conclusions before the court;

That the section 37 report was deficient for absence of thorough investigation, assessment, analysis, or any logical or coherent thinking.

It follows from my findings above (and the concessions made), that the Local Authority failed to follow the DCSF Guidance; this is in itself a serious failing. In this regard, I reproduce and adopt for the purposes of this judgment the comments of Macfarlane J (as he then was) in Re X (Emergency Protection Orders) [2006] 2 FLR 701, generally at §67-§89, but in particular:

The comments of McFarlane J are just as relevant, in my judgment, whether it is the Local Authority which is making the assertion of fabricated illness, or (as in the instant case), asserting that to the contrary there are no safeguarding concerns in a case where such allegations have been raised.

It is irrelevant, in my judgment (as Mr. Calway has argued), that no party formally applied for an adjournment at the start of the hearing on 10 December; the apparent failings of the section 37 report were only truly exposed when the social worker (and then her Team Leader) spoke to it. The father was not only entitled but obliged in my judgment to test, in oral evidence, whether the social worker had in fact done the work which it was felt was necessary.

Further, in light of the decision of Re T (above) I cannot allow the Local Authority’s hard-pressed financial resources to allow me to release it (as Mr Calway argues I should) from its clear statutory responsibility to investigate in accordance with the provisions of section 37 in fulfilment of a specific Court direction (3 April 2012), nor to ignore guidance issued under section 7 of the Local Authority Social Services Act 1970. In any event, in any comparison of resources, I would have to observe that the father himself is a man of limited means, who can little afford the cost of litigation, let alone wasted court days pursuing the same.

I regard a local authority in a private law case in which a section 37 direction has been given as being sufficiently “closely connected” with the litigation to justify the order; by such a direction the court is expressly inviting consideration of the issuing of public law proceedings. It should be noted that when a section 37 order is made, the court also has the power (if the relevant ‘threshold’ is established under section 38(2)) to make an interim care order: see section 38(1)(b). Although this did not happen here, this power illustrates in my judgment the extent to which the court can, if it considers it appropriate, draw a local authority directly into private law process of this kind and underlines its ‘close connection’ with the subject matter of the proceedings.

My conclusion on this aspect (§59 above) is amply justified by reference to other situations where ‘non-parties’ have been deemed to be ‘closely connected’ to the litigation, including insurers (see Palmer v (1) MIB; (2) PZ Products; (3) Royal & Sun Alliance [2008] EWCA Civ 46); directors (Secretary of State for Trade and Industry v Backhouse [2001] EWCA Civ 67 & Goodwood Recoveries Ltd v Breen: Breen v Slater [2005] EWCA Civ 414); liquidators and receivers (Metalloy Supplies Ltd (in liquidation) v MA (UK) Ltd [1997] 1 All ER 418, CA & Dolphin Quays Developments Ltd (In Administrative and Fixed Charge Receivership) v Mills [2007] EWHC 1180 (Ch)); tribunals (see Providence Capitol Trustees Ltd v Ayres [1996] 4 All ER 760, ChD), and the Legal Aid Board (now Legal Aid Agency) (see Kelly v South Manchester Health Authority [1997] All ER 274).

In this respect, Mr Jarmain has drawn my specific attention to the decision of Peter Smith J in Phillips v Symes [2004] EWHC 2330 in which it was held that the court had power to make a costs order against a non-party expert witness. Peter Smith J had held that:

In my judgment Phillips v Symes survives (indeed is fortified by) consideration of similar (i.e. immunity) issues in Jones v Kaney [2011] UKSC 13.

The failings outlined above (and, in fairness, to some extent conceded by Mr. Calway) comfortably carry this case over the ‘exceptionality’ threshold. The consequence of the Local Authority’s failure to comply appropriately with the direction of the Court was the inevitable abandonment of the fact-finding hearing in December 2012, the requirement for a further directions hearing, and the consequent delay (with its financial and emotional cost to the parties) in re-listing it in March 2013.

In the circumstances I have reached the clear conclusion that the father is entitled to his costs of the wasted hearings in December 2012 from the Local Authority. Mr. Jarmain seeks a summary assessment (having regard to the provisions of CPR 44PD.7 §13.1 and §13.2); Mr Calway accepts that a summary assessment is appropriate. This is indeed is a not uncommon practice in the Family Division (see Q v Q (Costs: Summary assessment) [2002] 2 FLR 668), and is appropriate where the claim is of this size.

I have considered the schedule of costs with care; it is a conservatively drawn bill, and there is nothing within it which in my assessment falls outwith the reasonable recoverable costs of the wasted hearings; I therefore summarily assess the costs award in the sum claimed.

My conclusions on the factual allegations raised in these proceedings have not influenced my determination of the costs issue.

However, it may usefully be noted here for readers of this judgment not connected with the case, that having heard the evidence of the protagonists at the fact-finding hearing, I found the majority of the allegations raised by the father (summarised at §6 above) proved on the balance of probabilities.

The proceedings are now listed for a welfare determination in September 2013.