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:

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:

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):

“1.

The Local Authority require more time for the evidence in these proceedings to be fully analysed and for further investigations with other professionals from school and health to have taken place, before a decision can be made with regards to the following:-

•

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.

2.

Based on the medical information contained in the papers from the private law proceedings there is a need for a more in-depth investigation and assessment around the allegations made by the father against mother.”

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)):

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:

“A court considering any question with respect to a child under this Act may–

(a)

…

(b)

ask a local authority to arrange for–

(i)

an officer of the authority; or

(ii)

such other person (other than [an officer of the Service] [or a Welsh family proceedings officer]) as the authority considers appropriate,

to report to the court on such matters relating to the welfare of that child as are required to be dealt with in the report.”

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:

“There are concerns that [the mother] is alleged to have informed [the father] and paternal family members that she has been diagnosed with Cancer and she has a Brain Tumour, [the mother] also allegedly gave a timeline to her life. [The mother] is also alleged to have fabricated illness about OB, she continues to deny this. This issue will have to be addressed between both parents, while OB continues to have good stability in a caring environment where his needs can be met appropriately” (§15.1) (emphasis added)

And later

“It is of concern that [the mother] is alleged to have fabricated illness about herself, as well as OB. She has denied such allegations… I am of the professional view that [the mother] requires some form of intervention which can explore if there are any underlying issues with regards to [the mother’s] psychological well being, as to ensure that OB is not placed at risk of harm at any given time” (§19) (emphasis added).

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:

“To date Croydon Council has not received any information which raises concerns about [the mother’s] ability to meet her children’s needs safely.”

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:

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:

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:

“…if the courts find it to be true that [the mother] did fabricate illness in OB and in herself, it will be of concern as to why [the mother] will make such allegations about a child and furthermore about herself. I will suggest that a Psychiatric assessment of [the mother] be carried out to explore the possible reasons for her behaviour.” (§31)

But added nonetheless that:

“I am of the view that there are no safeguarding issues pertaining to OB.” (§38)

And

“…having utilized the definition of Fabrication of Illness, I am of the view that there are no signs of this.” (§38)

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:

“These reports do not assist me materially in the fact-finding exercise; the assessment is necessarily predicated on an unclear factual foundation, and the internal confusions within the report perhaps reflect this. I do note with concern that the social worker, having formed the view that the mother had probably lied to the father about OB’s and her own illnesses in order to pursue a covert affair, did not go on to consider that this raised implications for OB.”

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:

“The court may at any time make such order as to costs as it thinks just”.

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:

“there appears to me to be a danger of treating the requirement that the circumstances are "exceptional" as being part of the statute to be applied. It is not. The epithet originates in the first proposition enunciated by Balcombe LJ in Symphony Group plc v Hodgson, but it is based on what Lord Goff said in Aiden Shipping Co.Ltd v Interbulk Ltd [1986] 1 AC 965, 980

"In the vast majority of cases it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings. But, as the facts of this case show, that is not always so."

In none of the cases to which I have referred have "exceptional circumstances" been elevated into a precondition to the exercise of the power; nor should they be.

Ultimately the test is whether in all the circumstances it is just to exercise the power conferred by subsections (1) and (3) of s.51 Supreme Court Act 1981 to make a non-party pay the costs of the proceedings. Plainly in the ordinary run of cases where the party is pursuing or defending the claim for his own benefit through solicitors acting as such there is not usually any justification for making someone else pay the costs. But there will be cases where either or both these two features are absent. In such cases it will be a matter for judgment and the exercise by the judge of his discretion to decide whether the circumstances relied on are such as to make it just to order some non-party to pay the costs. Thus, as it seems to me, the exceptional case is one to be recognised by comparison with the ordinary run of cases not defined in advance by reference to any further characteristic”.

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:

“That element … is not a pre-requisite to the exercise of the jurisdiction conferred by s.51(1) and (3) Supreme Court Act 1981” (§27).

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:

“In my judgment, the courts do have power in an appropriate and exceptional case to make an order in respect of costs against the board under section 51(1); the role of the board in litigation in which it is assisting one of the parties is a crucial one. The board’s efficient performance of its statutory duties is crucial to the proper and expeditious conduct of such litigation and the courts have an essential interest in seeing that those functions are performed in such a way that litigation is effectively progressed.”

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:

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:

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:

“the Local Authority are … bound to accept that as at the time of the hearing listed on 10^th and 11^th December 2012 the relevant guidance had not been applied and that the issues in the case had not been fully investigated within the section 37 report”.

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:

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

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:

“[82] Given the work that has gone into preparing authoritative national and local guidance upon cases of induced or fabricated illness, the court is entitled to expect that when a social work team manager asserts in evidence that this is a case of ‘Munchausen’s syndrome by proxy’ or ‘factitious illness syndrome’ (depending on which note of evidence is correct) the social work team has acted in accordance with the guidance and that the assertion being made is backed up by paediatric opinion.”

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:

“It seems to me that in the administration of justice, especially… it would be quite wrong of the Court to remove from itself the power to make a costs order in appropriate against an Expert who, by his evidence causes significant expense to be incurred, and does so in flagrant reckless disregard of his duties to the Court…

… The idea that the witness should be immune from the most significant sanction that the Court could apply for that witness breaching his duties owed to the Court seems to me to be an affront to the sense of justice” [§94-§98]

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.