Judge rejects parents’ claim for expenses against council after failed permanence order applications

A judge in the Court of Session held that while in practice expenses are not ordinarily awarded following permanence proceedings, the court did have a “discretionary right” to award expenses where a party’s conduct of the case was considered “reprehensible” or “unreasonable”, but this was not such a case.

Permanence proceedings

Perth and Kinross Council had lodged petitions for permanence orders under section 80 of the Adoption and Children (Scotland) Act 2007 in respect of four sibling children RSH, CMH, MRH and AJH, which were ultimately refused by Lord Brailsford following a proof.

The same judge later heard the motion in each petition on behalf of both respondents, which was (1) (a) to find the petitioners liable to them for the expenses of the action as taxed, and (b) for an additional fee under Rule 42.14(3) under heads (a), (b), (c) and (e); and (2) to certify a named consultant clinical geneticist as a skilled person.

But the primary argument requiring determination by the court was the issue of the circumstances in which it would be appropriate to make an award of expenses against a local authority petitioner in applications where a permanence order was sought - a question raising an issue of principle which had not been fully addressed by the court in any previous decision.

It was accepted that the overriding principle was that the question of expenses was always a matter within the discretion of the court, and that as a matter of practice, expenses were not ordinarily awarded against compearing parties in petitions where local authorities sought permanence orders.

‘Unreasonable conduct’

However, it was submitted that it would be appropriate to make an award of expenses against a local authority petitioner in such an application if the conduct of the court process on the part of the local authority could be characterised as a matter of fact as being “reprehensible” or that the petitioners had adopted an “unreasonable stance” in the proceedings.

The argument was based upon two UK Supreme Court cases, In re (T) (Children) (Care Proceedings: Costs) UKSC 35 and In re (S) (a child) UKSC 20, in which English local authorities had instituted care proceedings under the Children Act 1989, a statutory provision with no application in Scotland, where cost orders had been made notwithstanding a general practice in English care proceedings of not awarding costs against any party.

Counsel for the respondents drew attention Lord Brailsford’s opinion following the proof, where in conclusion he characterised the decision by the petitioners to proceed towards permanence as “precipitate and unjustified”.

It was submitted that such language was indicative of an “unreasonable stance” on the part of the local authority and as such “justified” an award of expenses in favour of the respondents.

‘Test was not met’

The petitioners accepted that the two decisions in the Supreme Court concerned care proceedings in England which could fairly be regarded as analogous to permanence proceedings in Scotland, and that in relation to the issue of circumstances where costs could and should be awarded against a local authority, these cases could be regarded as both useful and persuasive.

However, on the basis of that authority and the already noted English authorities where the test was that local authority should only be found responsible in the costs of care proceedings if their behaviour had been reprehensible or they had adopted an unreasonable stance in the conduct of the proceedings, it was submitted that neither test could be met in the present case.

The council pointed to the fact that since 2013 the children had been subject to compulsory supervision orders made by the Children’s Hearing and that a safeguarder who reported in October 2015 had agreed with the conclusions of the petitioners that the children were in need of permanent alternative care.

It was further submitted that the petitioners’ actions in seeking permanence were informed by views expressed in reports prepared by an independent consultant clinical psychologist.

No expenses due

Having regard to these circumstances, the judge found that no expenses were due to or by either party.

In a written opinion, Lord Brailsford said: “Whilst there is no authoritative decision, it is clear that as a matter of practice the general rule regarding expenses applicable in ordinary actions has not been followed in relation to permanence orders. It seems clear that the normal practice in such applications is that awards of expenses are not made. This accords with both practicality and common sense.

“Applications are made by local authorities who are pursuing duties in relation to the care of children that are imposed upon them by statute. A further consideration is, no doubt, that parties to permanence applications are in the overwhelming majority of instances, entirely funded by the public purse, by local authority funds in the case of petitioners and by legal aid in the case of respondents.

“All these considerations point to the utility and justice in a practice where expenses are not normally granted in favour of any party. That practice does not however, in my opinion, exclude the discretionary right of the court to consider the award of expenses in an appropriate case. The question therefore arises, what would constitute an appropriate case in which an award of expenses should be made?”

The judge observed that the two Supreme Court cases provided “useful analogies” as to the circumstances where an award of expenses might be justified in a permanence petition.

Lord Brailsford added: “The categories identified in these cases were where the conduct of the party, in particular a local authority, could be characterised as reprehensible or where it might be said a party took an unreasonable stance in the conduct of the proceedings. I would consider that similar categories could usefully be applied in the context of permanence applications in Scotland.

“It follows that in the present case, where it is not suggested that the petitioners have acted reprehensibly, I would require to find that they had adopted an unreasonable stance or had been irresponsible in their conduct of the proceedings before I could make an award of expenses. I am not satisfied that that has occurred.

“On the basis of the findings of their officials, the local authority in the present case instructed a report from a consultant clinical psychologist. Permanence proceedings were instituted at least in part upon the findings in that report from a consultant clinical psychologist.

“The fact that the report was, following proof, discredited cannot be a fault on the part of the authority. I consider that the authority were entitled to rely upon the report and that such reliance instructed their conduct of the proceedings.”