Mother faces huge legal costs consequence despite successful care order appeal

We often hear about cases in which a parent who has acted unreasonable during the course of legal proceedings being subject to adverse cost consequences. However, our child law experts today consider whether a parent can be made to pay their own legal costs despite a successful appeal.

In the case of M (A Child) (2018) this is exactly what happened. The mother in this case is of Zimbabwean origin and arrived in the UK in 1999. The mother lived with her family and trained as a nurse. The mother’s relationship with the child’s faster lasted approximately for 3 years and ended when the mother found out she was pregnant with the child. The mother has since been the sole care of the child.

Mother administers epi-pen to child following allergic reaction

On two occasions in October 2014 and May 2015 the mother took the child to the hospital by ambulance having administered an epi-pen to the child on the belief that the child was suffering an allergic reaction. Medical opinion was that on both occasions the epi-pen had been administered unnecessarily.

Following multidisciplinary meetings, the mother was arrested in June 2015 on suspicion of fraud and neglect. The child was removed under police protection and placed in foster care. The child has been in foster care since the mother’s arrest.

No charges were pursued however the medical experts concluded that this was not a case of Factitious and Induced Illness (FII) but were the actions of a rather anxious mother. Following this initial case the child was placed for adoption under a placement order under s.21 Children Act 1989.

Mother appeals the courts decision to place the child into adoption

The mother subsequently appealed the courts care order. The mother’s grounds for appealing the care order were:

• The judge failed to engage with the substance of the welfare checklist and carry out an analysis which, it is said, the case warranted in view of the fact the category of harm was, on the judge’s own account, “difficult to pin down”.

• The learned judge failed adequately to undertake a proper proportionality analysis in any event but that the error in the welfare analysis resulting in his failure adequately to identify the evidential basis for his assertion that the child was at risk of emotional and physical harm in the care of the mother. This had an adverse and detrimental effect upon the proportionality assessment which the court was bound to undertake and so on the ultimate decision to be made.

The mother’s grounds of appeal to the care order were accepted by the court who ordered the matter to be re-heard following a finding that the judge in the previous case had fallen into error by failing to adequately consider the evidence presented.

The mother applies for her appeal costs to be paid

Following her appeal being allowed the mother applied for her appeal costs (approaching £20,000 in view of counsel’s fees) to be paid by the local authority on the basis that they chose to oppose her successful appeal.

In claiming her costs to be paid the mother argued:

1. Her appeal has succeeded
2. She is not eligible for legal aid
3. She and her husband can very ill afford expenditure on this scale, added to the roughly equal costs incurred at the trial, particularly as they now face the further costs of the rehearing.

The mother also state it was unreasonable for the local authority to have defended the appeal in the way that it did when the decision has been found to have been incorrect.

In contrast the local authority stated that it cannot be said to be unreasonable for it to have defended the appeal and that it too has many calls on its stretched resources.

In considering the issue of the costs the judge stated he has considerable sympathy with the position of mother, who is not eligible for legal aid and who has incurred such substantial costs in seeking to have her child returned to her.  However, it is not possible to say that the local authority has been unreasonable in defending the judge’s decision, it being a decision that was in line with all professional advice and was supported by the children’s guardian. 

“Unfortunately, justice cannot demand that any deficiency in legal aid funding should be made up out of the funds of the local authority. I have considered whether a decision on the application should be postponed until after the rehearing.  Had there been a clear case of documented financial hardship and factors that suggested unreasonableness on the part of the local authority, a postponement of the decision might be justified. But in my judgment, neither of these indicators is strong enough to justify that unusual course. Based on these reasons, the judge made no order for costs in relation to this appeal”.

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