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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 1585,  1 FCR 1585,  Fam Law 579
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ON APPEAL FROM KINGSTON-UPON-HULL COUNTY COURT
HIS HONOUR JUDGE DOWSE
LOWER COURT No KH08C09019
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUNBY
MR JUSTICE COLERIDGE
|In the matter of T (a child)|
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Miss Janet Bazley QC and Miss Liz Shaw (instructed by Hull's Legal & Democratic Services) appeared on behalf of the First Respondents, the local authority.
Mr Gavin Button (solicitor-advocate, Williamsons, Hull) appeared on behalf of the Second Respondent, the father.
Crown Copyright ©
Lord Justice Wilson:
"14. In Sutton London Borough Council v Davis (No.2)  1 WLR 1317,  2 FLR 569, I sought to explain the reasons behind the general proposition that it was unusual to make an order for costs in children cases. I said, at 1319 and 570H- 571C respectively, as follows:
'Where the debate surrounds the future of a child, the proceedings are partly inquisitorial and the aspiration is that in their outcome the child is the winner and indeed the only winner. The court does not wish the spectre of an order for costs to discourage those with a proper interest in the child from participating in the debate. Nor does it wish to reduce the chance of their co-operation around the future life of the child by casting one as the successful party entitled to his costs and another as the unsuccessful party obliged to pay them. The proposition applies in its fullest form to proceedings between parents and other relations; but it also applies to proceedings to which a local authority is a party… But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the party's stance has been beyond the band of what is reasonable.'"
The judge then quoted a passage to the same effect in the decision of Cazalet J in Re M (Local Authorities Costs)  1 FLR 533, at 541C-E, and concluded that, in that it had been reasonable for the local authority to pursue the allegations against the grandparents, the door to a successful application for costs on their part was not open. The judge ended with a postscript to the effect that it might be paradoxical that, had the grandparents been charged with offences in the criminal courts of an analogous nature, they might have been able to access non-means-tested public funding.
"The order for a bespoke fact-finding hearing was surely to consign the determination of the mother's allegations into a separate compartment of the court's determination of the father's application for an order for contact. It went almost without saying, although the circuit judge chose to say it, that the optimum outcome of the contact application could be determined only by reference to the findings made at the fact-finding hearing; but the effect of the direction for a separate fact-finding hearing was that the costs incurred by the mother in relation to that hearing can confidently be seen to be wholly referable to her allegations against the father. There was, in that sense, a ring fence around that hearing and thus around the costs referable to it. Those costs did not relate to the paradigm situation to which the general proposition in favour of no order as to costs applies."
"I disagree. Even where the judge starts with a clean sheet, the fact that one party has been unsuccessful, and must therefore usually be regarded as responsible for the generation of the successful party's costs, will often properly count as the decisive factor in the exercise of the judge's discretion."
"I was constrained to warn [the grandmother] about the importance of telling the truth on oath whilst she was giving her evidence. She sought to mislead me about the reason for using expressions about policemen in her text messages. She told me that she referred to the term 'copper' because it was shorter than 'policeman' and she used the shorter term because she has arthritis in her fingers. I regard this as a nonsense since she could have said 'cop' or 'PC'. I pointed out that it was likely that the Bar would use this as an example of her not telling the truth. [Counsel for the local authority] in her closing submissions has fastened upon the point and asked me to say that [the grandmother] cannot be regarded as a reliable or truthful witness.
Although she made something of an apology in the witness box I was very surprised that [the grandmother] felt able to be, at the very least, flippant whilst the court was considering serious allegations of sexual abuse of these grandchildren, involving herself, her husband ... and her son ... These remain very serious allegations of sexual abuse of her grandchildren. Having heard the evidence she must know that these two grandchildren have sexual knowledge and perhaps experience way beyond their years. I hope she has reflected on her behaviour."
Lord Justice Munby:
Mr Justice Coleridge:
Order: Appeal allowed