Input:
Where an application is made for the extradition of a convicted person to a category 1 territory, ie pursuant to a European arrest warrant, the warrant is required by section 2(6)(e) of the Extradition Act 2003 to include particulars of the sentence which has been imposed under the law of the category 1 territory in respect of the offence, if the person has been sentenced for the offence.
The purpose of this requirement is to enable the court to apply section 65(2)(c), (3)(c), (4)(c) and (5)(c).
These provide minimum sentences of imprisonment or detention which must have been imposed in order to disclose an extradition offence.
The minimum periods are 12 months in the case of offences on the European Framework list or four months for offences which are not on the European Framework list but satisfy the relevant requirement of double criminality.
In the present case, the relevant provision is section 65(3)(c), which applies to offences committed in the category 1 territory which would constitute an offence under the law of the relevant part of the United Kingdom if it occurred there, provided that a sentence of imprisonment or another form of detention for a term of four months or a greater punishment has been imposed.
In many states of the European Union the criminal law provides for the aggregation of successive sentences imposed by criminal courts on different occasions so as to produce a single sentence reflecting the totality of the course of criminality disclosed.
This will commonly result in a reduction of the total period of imprisonment imposed, by comparison with the period arrived at by adding up each of the original sentences.
Polands aggregation procedure is contained in articles 85 86 of the Penal Code and articles 569 577 of the Criminal Procedures Code, which require a court to aggregate successive sentences to produce a single cumulative penalty.
The effect of this procedure has been considered in a number of cases in which a European arrest warrant has given particulars of the cumulative penalty but not of the individual sentences which were aggregated so as to produce it.
The question whether this satisfies sections 2(6)(e) and 65(3)(c) of the Act was finally settled in Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325.
The House of Lords held that, at any rate in a case where each of the original sentences was for conduct satisfying all the other requirements for an extradition offence, it was enough for the warrant to specify the cumulative sentence.
If it exceeded four months it was irrelevant that some of the original sentences might have been less than that.
The present appeal concerns the converse situation.
What happens if the warrant specifies only the original sentences, but after it has been issued they have been aggregated and their totality reduced?
Lukasz Zakrzewski, was convicted on four occasions in Poland of various offences of dishonesty or violence.
On 10 December 2003, he was convicted by the District Court in Grudziadz of assault and robbery committed on separate occasions in February 2003, for which he received a combined sentence of 14 months imprisonment.
On 18 March 2004, he was convicted by the same court of two distinct offences of theft, and received a further combined sentence of 15 months imprisonment.
On 28 May 2004, he was convicted of theft by the District Court of Swiecle and sentenced to six months imprisonment.
On 14 January 2005, he was back before the District Court of Grudziadz, which convicted him of theft and sentenced him to a further ten months imprisonment.
All of these sentences of imprisonment were initially suspended, but all of them were subsequently activated either by the commission of further offences during the period of probation which followed conviction, or by breaches of the probation terms.
On 24 February 2010, Mr Zakrzewski having absconded, the Regional Court of Lodz issued a European Arrest Warrant against him, based on his conviction on these four occasions.
The warrant specified the sentence passed on each occasion.
Mr Zakrzewski was arrested in England on 28 September 2010 and brought before City of Westminster Magistrates Court on the same day.
At that time, he was facing further criminal charges in the United Kingdom.
The extradition proceedings were therefore adjourned pending the resolution of proceedings arising from them.
During the adjournment, Mr Zakrzewski applied to the District Court of Grudziadz to have the four sentences aggregated.
The court duly aggregated them, and on 19 April 2011 imposed a cumulative sentence of 22 months, as opposed to the aggregate of 45 months under the original sentences.
When Mr Zakrzewski came back before Westminster Magistrates on 20 May 2011, it was submitted on his behalf that the aggregation order meant that the warrant no longer gave the particulars required by section 2(6)(e) because the only relevant sentence was now the cumulative sentence.
It followed, so it was said, that the warrant had become invalid, or that the court should exercise an inherent jurisdiction not to proceed with the extradition on the ground that it no longer gave proper, fair or accurate particulars: see Criminal Court at the National High Court, First Division v Murua [2010] EWHC 2609 (Admin).
It will be noted that each of the original sentences was for conduct in Poland which would have been criminal if it had occurred in England, and that the original sentences and the cumulative sentence all exceeded four months.
The argument advanced on Mr Zakrzewskis behalf is therefore hardly overburdened with merit.
It is about as technical as it could possibly be.
It is common ground that a further warrant giving the same particulars but specifying the cumulative sentence would be good.
District Judge Rose rejected the argument in both its forms and made the extradition order.
But it was accepted in both forms by Lloyd Jones J on appeal to the High Court.
He allowed the appeal against the extradition order on 7 February 2012.
In summary, he held that the information in the warrant must relate to the current operative sentence and not to earlier sentences which have been subsumed in an aggregated order.
In determining whether the requirement of section 65 is satisfied, the court needs to know the total length of time which the court of the requesting state has ordered must be served in prison.
In the present case, that is the aggregated order.: [2012] 1 WLR 2248, para 26.
The basic features of the scheme for the execution of a European arrest warrant under Part 1 of the Extradition Act 2003 are too familiar to need extensive restatement here.
It has often been pointed out that the contents of the warrant are critical to the operation of the scheme of both the Council Framework Decision 2002/584/JHA of 13 June 2002 and the United Kingdom Act.
Extradition under Part 1 of the Act is by way of direct execution of the warrant.
To fall within the definition of a Part 1 warrant and be capable of initiating extradition proceedings, it must contain the statements and information required by section 2 of the Act, which reflect the mandatory contents provided for by article 8 of the Framework Decision.
The procedure operates at each stage by reference to the prescribed particulars contained in it.
Thus, under section 10, the court must decide whether the offence specified in the Part 1 warrant is an extradition offence as defined by section 64 (in an accusation case) or section 65 (in a conviction case).
Both sections require the court to consider whether the offence constituted by the conduct satisfied the requirements of those sections.
The conduct for this purpose means that specified in the warrant, and it is not permissible to conduct an independent examination of the elements of the offence under the law of the requesting state: Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1, paras 16 (Lord Bingham of Cornhill) and 30 (Lord Hope of Craighead).
Under section 64(2)(b) and (c), the questions whether the conduct falls within the European Framework list and whether it is punishable under the law of the requesting state by a sentence of imprisonment of three years or more are to be determined by reference to information certified by the requesting authority, which may be (and commonly is) certified in the warrant itself: see Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31.
The same applies to the corresponding provisions of section 65(2)(b) and (c).
If the warrant contains the prescribed particulars and these disclose an extradition offence, the court must extradite the defendant, unless one of the limited exceptions specified in the Act applies.
The exceptions to the otherwise mandatory extradition of the defendant are dealt with by sections 10 to 21 and 25 of the Act.
Some of these also operate by reference to the conduct, which must in the circumstances mean the conduct specified in the warrant: see sections 15 and 19B (as inserted by section 42 of, and para 4(2) of Schedule 13 to, the Police and Justice Act 2006).
All of these provisions reflect the underlying purpose of the Framework Decision and Part 1 of the Extradition Act to create a simplified and accelerated procedure based on the mutual recognition by the requested state of the antecedent decision to issue the warrant by the judicial authority in the requesting state.
Recital (10) of the Framework Decision records that the mechanism of the European arrest warrant is based on a high level of confidence between member states.
Or, as Lord Phillips put it in Assange v Swedish Prosecution Authority (Nos 1 & 2) [2012] 2 AC 471, para 79, under the scheme of the Framework Decision the safeguard against the inappropriate issue of an EAW lies in the process antecedent to the issue of the EAW.
It follows that the scheme of the Framework Decision and of Part 1 of the 2003 Act is that as a general rule the court of the executing state is bound to take the statements and information in the warrant at face value.
The validity of the warrant depends on whether the prescribed particulars are to be found in it, and not on whether they are correct.
It cannot be open to a defendant to challenge the validity of a warrant which contains the prescribed particulars by reference to extraneous evidence tending to show that those statements and information are wrong.
If this is true of statements and information in a warrant which were wrong at the time of issue, it must necessarily be true of statements which were correct at the time of issue but ceased to be correct as a result of subsequent events.
Validity is not a transient state.
A warrant is either valid or not.
It cannot change from one to the other over time.
It does not, however, follow from this that there is nothing to be done about it if the prescribed particulars in the warrant are or have become incorrect.
It only means that the remedy must be found at the stage when the court is considering whether to extradite.
Neither the Framework Decision nor Part 1 of the Act provides in terms for non extradition on the ground of a factual error in the warrant.
There are, however, two safeguards against an unjustified extradition in those circumstances.
The first and main one is the mutual trust between states party to the Framework Decision that informs the entire scheme.
The requesting judicial authority has a right, recognised by article 15.3 of the Framework Decision, to forward additional information at any time.
These are receivable in evidence by an English court under section 202 of the Act on the same basis as the warrant itself.
If necessary, further information may be requested by the executing court under article 15.2.
The Framework Decision proceeds on the assumption that requesting states can be trusted to ensure that statements and information in a European arrest warrant are true.
By the same token, if they subsequently cease to be true, either the warrant will be withdrawn or the statements and information in it will be corrected by the provision of further information, with or without a request for it.
The second safeguard lies in the inherent right of an English court, as the executing court, to ensure that its process is not abused.
One form of abuse of process is the fortunately rare case in which the prosecutor has manipulated the process of the executing court for a collateral and improper purpose: see R (Government of the United States of America) v Bow Street Magistrates Court [2007] 1 WLR 1157.
We are not concerned with anything of that kind on this appeal.
Another category comprises cases, rather less rare, in which the prescribed particulars are given in the warrant but they are wrong.
In Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] 1 WLR 1724, para 24, Lord Bingham observed that "it might in some circumstances be necessary to question statements made in the EAW, notwithstanding the general rule.
The question is in what circumstances is the power envisaged by Lord Bingham exercisable.
The clearest statement of the principle is to be found in the decision of Sir Anthony May, President of the Queens Bench Division of the High Court, in Criminal Court at the National High Court, First Division v Murua [2010] EWHC 2609 (Admin), which has been followed by the High Court on a number of occasions.
Murua was an accusation case.
The warrant alleged serious terrorist offences involving danger to life and concealment of identity.
Both of these were significant aggravating factors under Spanish law, warranting imprisonment upon conviction for up to 48 years.
The particulars of the offence specified the aggravating factors, and the maximum sentence associated with them.
However, at the trial in Spain of seven other defendants for the same conduct, the prosecution had accepted that these aggravating factors could not be proved.
The charges were reformulated, and the co defendants convicted of lesser offences carrying a maximum term of imprisonment of three years.
Sir Anthony May said, at paras 58 59: 58.
The court's task jurisdiction, if you like is to determine whether the particulars required by section 2(4) have been properly given.
It is a task to be undertaken with firm regard to mutual co operation, recognition and respect.
It does not extend to a debatable analysis of arguably discrepant evidence, nor to a detailed critique of the law of the requesting state as given by the issuing judicial authority.
It may, however, occasionally be necessary to ask, on appropriately clear facts, whether the description of the conduct alleged to constitute the alleged extradition offence is fair, proper and accurate.
I understood Ms Cumberland to accept this, agreeing that it was in the end a matter of fact and degree.
She stressed, however, a variety of floodgates arguments with which in general I agree, that this kind of inquiry should not be entertained in any case where to do so would undermine the principles to be found in the introductory preambles to the Council Framework Decision of 13 June 2002. 59.
Ms Cumberland submitted that an argument of the kind which succeeded before the District Judge can be raised, but not with reference to section 2 of the 2003 Act.
She said that the proper approach was to deal with it as an abuse argument, and this ties in with the appellant's third ground of appeal, to which I shall come in a few moments.
I do not agree that the respondent's case could only be advanced as an abuse argument.
It can properly be advanced, as it was, as a contention that the description in the warrant of the conduct alleged did not sufficiently conform with the requirements set out in section 2 for the reasons advanced by Mr Summers with reference to Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 and Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325.
If that is shown, it is not a valid Part 1 warrant.
I agree with this statement, subject to four observations.
The first is that the jurisdiction is exceptional.
The statements in the warrant must comprise statutory particulars which are wrong or incomplete in some respect which is misleading (though not necessarily intentionally).
Secondly, the true facts required to correct the error or omission must be clear and beyond legitimate dispute.
The power of the court to prevent abuse of its process must be exercised in the light of the purposes of that process.
In extradition cases, it must have regard, as Sir Anthony May observed, to the scheme and purpose of the legislation.
It is not therefore to be used as an indirect way of mounting a contentious challenge to the factual or evidential basis for the conduct alleged in the warrant, this being a matter for the requesting court.
Third, the error or omission must be material to the operation of the statutory scheme.
No doubt errors in some particulars (such as the identity of the defendant or the offence charged) would by their very nature be material.
In other cases, the materiality of the error will depend on its impact on the decision whether or not to order extradition.
The fourth observation follows from the third.
In my view, Ms Cumberland was right to submit to Sir Anthony May in Murua that the sole juridical basis for the inquiry into the accuracy of the particulars in the warrant is abuse of process.
I do not think that it goes to the validity of the warrant.
This is because in considering whether to refuse extradition on the ground of abuse of process, the materiality of the error in the warrant will be of critical importance, whereas if the error goes to the validity of the warrant, no question of materiality can arise.
An invalid warrant is incapable of initiating extradition proceedings.
I do not think that it is consistent with the scheme of the Framework Decision to refuse to act on a warrant in which the prescribed particulars were included, merely because those particulars contain immaterial errors.
I now return to the facts of Mr Zakrzewskis case.
The warrant issued against him was undoubtedly a valid warrant when it was issued.
It was therefore effective to authorise the commencement of extradition proceedings in the United Kingdom against him.
It did not become invalid when the aggregation order was made.
It follows that the only basis on which Mr Zakrzewski could object to his extradition was that the conduct of the requesting judicial authority in persisting with extradition proceedings after the aggregation order was an abuse of those proceedings.
The short answer to this contention in the present case is that the particulars of the sentence in the warrant, although no longer complete, were not wrong.
This is because the Regional Court of Lodz supplied further information about the effect of the aggregation order in the following terms: The consequence of a composite sentence having been passed is that the single penalties imposed for each of the offences are replaced by that single composite sentence.
In such a case, the penalties imposed for each of the offences are not to be enforced separately, but replaced with the new composite sentence that is to be enforced in respect of the convict.
It should be noted that the issue of a composite sentence does not invalidate any of the individual sentences.
This answer was effective to explain the contents of the warrant.
Its effect is that the original sentences remain valid but the cumulative sentence determines what period of imprisonment will be treated as satisfying them.
Therefore, the information in the warrant about the original sentences did not cease to be true when the cumulative sentence was passed.
Although true, the information in the warrant about the sentence imposed became incomplete when the cumulative sentence was passed.
The prosecution of extradition proceedings on a warrant containing prescribed particulars which are (or have become) incomplete is capable of being an abuse of process, but only if the information omitted is material to the operation of the statutory scheme.
In this case the fact that the period of imprisonment which would satisfy the four original sentences had been shortened was wholly immaterial, because even the shorter cumulative sentence was substantially longer than the minimum of four months.
As Lord Hope observed in Pilecki [2008] 1 WLR 325, para 29, all the executing court needs to know in these circumstances is whether or not the sentence was one for at least four months.
The position would be different if the composite sentence was below the four month threshold, because there would then be no extradition offence.
I cannot agree with Lloyd Jones J [2012] 1 WLR 2248, para 26 that the failure of the warrant to specify the current operative sentence was fatal.
The sentence of the court will rarely be the current operative sentence, since the period to be served will commonly be affected by a variety of factors, such as remission or parole.
As the cases on aggregation procedure show, they may also be affected by aspects of criminal procedure which will vary from one jurisdiction to another without affecting the application of the ordinary criteria for extradition or undermining the purpose of the Framework Decision or Part I of the Act.
It follows that in the ordinary course the appeal would have been allowed and the order of the District Judge restored.
However, just before this judgment was due to be delivered, the Court was informed that Mr. Zakrzewski had returned voluntarily to Poland after the argument on the appeal and been arrested there.
Accordingly, the warrant has been withdrawn by the court which issued it.
This does not affect the issue which the Court has to decide.
But it does mean that, formally, the appeal must now be dismissed: see section 43(4).

Output:
Where an application for a European Arrest Warrant (EAW) is made, and the defendant has been convicted and sentenced in the requesting state, section 2(6)(e) of the Extradition Act 2003 (the Act) requires the EAW to include particulars of the sentence(s) imposed.
This enables the requested court to determine whether the sentence is equal to or exceeds the minimum sentence required to constitute an extradition offence.
Section 65(3)(c) of the Act applies to offences in the requesting state which would constitute an offence in the UK if it occurred there, provided that a minimum sentence of four months was imposed.
Many EU states provide for the aggregation of successive sentences imposed on different occasions to produce a single sentence for all of the offences committed, which usually has the effect of reducing the overall period of imprisonment.
Earlier case law establishes that where each of the original sentences is for conduct that satisfies all the other requirements of an extradition offence, it is enough for a EAW to specify the cumulative sentence rather than all of the individual sentences.
This appeal concerns the converse: what happens if a EAW specifies only the original sentences, but after it has been issued they are aggregated and their totality reduced? Lukasz Zakrzewski was convicted on four occasions in Poland of various offences of dishonesty or violence.
His sentences were initially suspended and then activated by further offences or breaches of probation terms.
On 24 February 2010, Mr Zakrzewski having absconded, the Regional Court in Lodz issued a EAW against him based on these four convictions specifying the sentences passed.
He was then arrested in England on 28 September 2010 and brought before the City of Westminster Magistrates Court the same day.
However, as he was facing further criminal charges in England, the extradition proceedings were adjourned.
During this adjournment, Mr Zakrzewski applied to the District Court of Grudziadz in Poland to have the four sentences aggregated.
The court duly aggregated them and on 19 April 2012 imposed a cumulative sentence of 22 months imprisonment (as opposed to the aggregate of 45 months of the original sentences).
When the extradition proceedings resumed, Mr Zakrzewski claimed that the aggregation order meant the EAW was no longer gave the particulars required by s.2(6)(e) because the only relevant sentence now included was the cumulative sentence.
The warrant was therefore invalid, and no longer gave proper, fair or accurate particulars.
District Judge Rose rejected Mr Zakrzewskis arguments and granted an extradition order.
However, this was overturned by Lloyd Jones J in the High Court on the basis that the EAW must relate to the current operative sentence in force not to earlier individual ones subsumed in an aggregated order to enable the requested court to know the length of imprisonment the requesting state had ordered.
The Regional Court in Lodz appealed to the Supreme Court.
The Supreme Court unanimously allows the appeal and restores the extradition order of District Judge Rose.
Lord Sumption gives the judgment of the Court.
Just before this judgment was due to be delivered, the Court was informed that Mr. Zakrzewski had returned voluntarily to Poland after the argument on the appeal and been arrested there.
Accordingly, the warrant has been withdrawn by the court which issued it.
This does not affect the issue which the Court has to decide.
But it does mean that, formally, the appeal must now be dismissed: see section 43(4).
The purpose of the European Council Framework Decision 2002/584/JHA of 13 June 2002 (the Framework Decision) and Part 1 of the Act was to create a simplified and accelerated procedure based on mutual recognition [7].
The courts of states being asked to consider EAWs should generally take information contained in them at face value.
An EAWs validity depends on whether the prescribed particulars are found in it, not on whether they are correct.
A defendant cannot normally challenge its validity by reference to extraneous evidence.
If this is true of information in an EAW which was wrong at the time of issue, it is true for information which was correct at the time of issue but ceased to be correct due to subsequent events.
A EAW is either valid or not valid.
It cannot change over time [8].
It does not follow that nothing can be done to correct prescribed particulars that have become incorrect but the remedy must be at the stage when the court is deciding whether to extradite [9].
Lord Sumption drew attention to two safeguards against unjustified extradition in this context.
The first was mutual trust between parties to the Framework Decision to ensure information in a EAW is true.
The requesting authority has the right to forward additional information at any time and the requested UK authority has the right to receive it and to request further information [10].
The second safeguard is the courts inherent right to ensure its process is not abused, for example, where an EAW has been obtained for improper purposes [11].
A court can question statements made in EAW on the grounds of an abuse of process.
However, Lord Sumption noted that: (a) this jurisdiction is exceptional; (b) the facts needed to correct the error must be beyond legitimate doubt and abuse of process must not become an indirect way of challenging the factual basis of conduct alleged in a EAW; (c) the error must be material to the operation of the statutory scheme.
It is inconsistent with the Framework Decision to refuse to execute a EAW, in which the prescribed particulars were included, because of immaterial errors [13].
In the present case, the EAW was valid when it was issued to Mr Zakrzewski.
It did not become invalid when the aggregation order was made.
The particulars of sentence were no longer complete but they were not wrong.
The evidence is that in Polish law the original sentences remain valid but the cumulative one determines what period of imprisonment will be treated as satisfying them [14].
The fact that the imprisonment period which would satisfy the four original sentences was shortened was immaterial, as even the shorter sentences were longer than the minimum of 4 months required for disclosing an extradition offence under the Act [15].
The sentence of the court will rarely be the current operative sentence since the period to be served will be affected by factors such as remission or parole as well as aggregation.
Criminal procedures vary from one jurisdiction to another without affecting the ordinary criteria for extradition or undermining the purpose of the Framework Decision or Part I of the Act [16].


Input:
It is rare for the Supreme Court to entertain an appeal that relates exclusively to costs, but this appeal raises an important issue of principle in relation to the liability of a local authority to pay the costs of a party to care proceedings.
The proceedings related to two children, whose parents were separated.
The children made allegations of sexual abuse by their father and six other men in which the fathers parents (the grandparents) had colluded.
These allegations were included by the appellant (the Council) in the schedule of matters relied upon in the care proceedings as meeting the threshold criteria for a care order under section 31(2) of the Children Act 1989.
The grandparents were joined as interveners, as were five of the six men.
The judge conducted a discrete fact finding hearing which occupied a total of five and a half weeks between February and December 2009.
The lengthy findings that he then made exonerated the grandparents and five of the other six interveners.
Four of the five men who intervened qualified for legal aid (the fifth represented himself), but the grandparents relatively modest income disentitled them from this.
The grandfather was aged 67.
He is a retired fireman.
The grandmother was aged 63 and worked, as she still does, as a part time bookkeeper.
His pension and her earnings together amount to about 25,000 a year.
The grandparents borrowed 55,000 from a building society, of which they spent 52,000 on legal advice and representation at the hearing.
They cannot hope to pay this off in less than 15 years.
In these circumstances the grandparents applied for an order that the Council pay their costs.
It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents.
The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs.
The judge dismissed their application.
He did so on the basis that it was not usual to order costs in a child case against a party unless that partys conduct has been reprehensible or its stance unreasonable.
In support of that proposition the judge cited authorities that included the judgments of Wilson J in Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.
The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with potentially life changing allegations without being able to gain some financial assistance from the State.
The grandparents appealed to the Court of Appeal, consisting of Wilson and Munby LJJ and Coleridge J.
The appeal was allowed: [2010] EWCA Civ 1585.
Wilson LJ gave the leading judgment.
He held that Judge Dowse had failed to appreciate the true purport of his judgment in In re J, which was favourable rather than adverse to the grandparents application for costs.
Permission to appeal to this Court was given on terms that, whatever the result, the grandparents entitlement to recover their costs from the Council would not be disturbed.
Permission to intervene was granted to the Children and Family Court Advisory and Support Service (CAFCASS) and to the Grandparents Association.
It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono.
We would like to express our gratitude for the assistance that they have given.
The Family Procedure Rules 2010
On 6 April 2011 the Family Procedure Rules 2010 (SI 2010/2955) (FPR) came into force.
They apply to family proceedings in the High Court, County Courts and Magistrates Courts.
Part 28 deals with costs.
It is common ground that Part 28 of FPR consolidates the previous law relating to costs, including the relevant provisions of the Family Proceedings Rules 1991 (SI 1991/1247) and that it does not change the law in relation to costs that is applicable to this appeal.
In these circumstances it is sensible to consider the issues raised by this appeal within the context of those Rules.
objective, which is defined in FPR 1.1, which provides: FPR 1.2, which is new, requires the court to give effect to the overriding 1.1 The overriding objective (1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved. (2) Dealing with a case justly includes, so far as is practicable (a) ensuring that it is dealt with expeditiously and fairly; (b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues; (c) ensuring that the parties are on an equal footing; (d) saving expense; and (e) allotting to it an appropriate share of the courts resources, while taking into account the need to allot resources to other cases.
FPR 28.3 makes special provision for costs in financial remedy proceedings.
Paragraph (5) provides that the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party.
This is subject to paragraph (6) which permits the court to make such an order when it considers it appropriate to do so because of the conduct of a party in relation to the proceedings.
Paragraph (5) is a particular example of the departure in family proceedings from the general rule applicable in civil proceedings that the unsuccessful party will be ordered to pay the costs of the successful party: CPR 44.3(2)(a).
FPR 28.1 provides that The court may at any time make such order as to costs as it thinks just.
This is not an unfettered discretion, for FPR 28.2 makes applicable to family proceedings, other than financial remedy proceedings, the majority of the rules in relation to costs of the CPR.
The most significant of the rules excluded is the general rule that costs follow the event, quoted above in CPR 44.3(2).
In the context of this appeal, the most relevant of the rules that are applicable are included in the following provisions of CPR 44.3: (4) In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including (a) the conduct of all the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment into court or admissible offer to settle made by a party which is drawn to the courts attention, and which is not an offer to which costs consequences under Part 36 apply. (5) The conduct of the parties includes (a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre Action Conduct) or any relevant pre action protocol; (b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) the manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.
(4)(b) is relevant in relation to a regime where the general rule in (2)(a) applies.
For this reason we do not see that it has any direct relevance to family proceedings. (4)(c) can have no relevance to public law proceedings and can thus be disregarded in the present case.
The other rules are simply examples of circumstances that will be relevant when considering the result that justice requires in the individual case.
In family proceedings, however, there are usually special considerations that militate against the approach that is appropriate in other kinds of adversarial civil litigation.
This is particularly true where the interests of a child are at stake.
This explains why it is common in family proceedings, and usual in proceedings involving a child, for no order to be made in relation to costs.
The reasons for departing from the principle that costs normally follow the event differ, however, depending upon the nature of the family proceedings.
On this appeal it is necessary to identify the policy considerations that should inform the approach to costs that is required in the interests of justice in care proceedings.
Reasons for making no order for costs in family proceedings that are not relevant
in the present case
The Court has been referred to a number of authorities dealing with costs in family proceedings.
In order to see the wood from the trees it is helpful to remove from the forest the timber that does not bear on the issues raised by this appeal.
The following reasons for not awarding costs in family proceedings are not relevant: i) In ancillary relief proceedings each partys liability for costs will be taken into consideration when making the substantive award.
This approach has the advantage of discouraging the parties from running up unnecessary costs see Baker v Rowe [2009] EWCA Civ 1162; [2010] 1 FCR 413, paras 20 to 23 per Wilson LJ. iii) ii) Orders for costs between the parties will diminish the funds available to meet the needs of the family see Gojkovic v Gojkovic [1992] Fam 40, 57, per Butler Sloss LJ and R v R (Costs: Child Case) [1997] 2 FLR 95, 97, per Hale J. (This could, of course, be a good reason not to award costs against a family member in care proceedings).
It is undesirable to award costs where this will exacerbate feelings between two parents, or more generally between relations, to the ultimate detriment of the child: see B (M) v B (R) (Note) [1968] 1 WLR 1182, 1185 per Willmer LJ; Sutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317, 1319 per Wilson J. (Once again this could be a good reason not to award costs against a family member).
Unreasonable conduct
CPR 44.3(5) is as relevant in care cases as it is in other kinds of family proceedings.
Where a local authority has caused costs to be incurred by acting in a way which was unreasonable justice may well require that the local authority pay the costs in question.
Examples of such cases include: In re R (Care: Disclosure: Nature of Proceedings) [2002] 1 FLR 755; In re X (Emergency Protection Orders) [2006] 2 FLR 701; Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045.
The principle underlying these decisions has no relevance to the present case, for it has not been suggested that the conduct of the local authority was in any respect unreasonable.
Precedent
CAFCASS have submitted that this case is the first occasion upon which a local authority has been ordered to pay costs in public law proceedings in the absence of any criticism of its conduct.
CAFCASS is well placed to make that submission and no case to the contrary has been cited to us.
In In re M (Local Authoritys Costs) [1995] 1 FLR 533 a local authority applied for permission to refuse contact between two children and their parents.
The magistrates refused the application and ordered the local authority to pay the fathers costs.
On appeal Cazalet J set aside that order, holding that there should be no order as to costs.
Citing the decision of Wilson J in Sutton London Borough Council v Davis he observed at p 541 that it would be unusual for a court to make an order for costs in a child case where a partys conduct had not been reprehensible or that partys stance had not been beyond the band of what was reasonable.
He added at p 544: As a matter of public policy it seems to me that where there is the exercise of [a] nicely balanced judgment to be made by a local authority carrying out its statutory duties, the local authority should not feel that it is liable to be condemned in costs if, despite acting within the band of reasonableness (to adopt the words of Wilson J), it may form a different view to that which a court may ultimately adopt.
The reasoning of the Court of Appeal
The chain of reasoning of Wilson LJ in this case has its origin in his decision in Sutton London Borough Council v Davis.
The local authority had refused to register a childminder, who successfully appealed to the magistrates, who awarded costs in her favour.
The local authority appealed against the costs order.
In doing so the authority urged the court to apply, by analogy, the principle that costs are not usually ordered in child cases.
Wilson J accepted that this was a proposition applied for many years in the Family Division.
He gave the following explanation for that proposition at p 1319: 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 are a party.
Thus, even when a local authoritys application for a care order is dismissed, it is unusual to order them to pay the costs of the other parties.
But the proposition is not applied where, for example, the conduct of a party has been reprehensible or the partys stance has been beyond the band of what is reasonable: Havering London Borough Council v S [1986] 1 FLR 489 and Gojkovic v Gojkovic [1992] Fam 40, 60C D.
Wilson J then dealt with the facts.
He observed that the local authority had erred in concluding that the respondent was not fit to mind children, but held that their stance in relation to Mrs Davis was neither reprehensible nor unreasonable.
Wilson J went on to reject the analogy with care proceedings, and dismissed the appeal.
His reasons at pp 1319 1320 were as follows: In care proceedings the local authority and all other parties come into court in order to assist it in choosing the programme for the childs future which will best serve his or her welfare.
In the case of Mrs Davis the local authority made an incorrect decision as to her fitness.
She had a right to be registered and they infringed it.
Mrs Davis afforded them the opportunity to review their decision by lodging an objection pursuant to section 77(3) of the Children Act 1989.
But they resolved that the decision should stand.
In order to establish her right to be registered, Mrs Davis had to appeal to the magistrates court.
The proceedings were adversarial and the local authority lost the argument.
Such were the circumstances for application of the principle that costs should follow the event.
Far from being satisfied that the justices were plainly wrong to decide that the local authority should pay the costs of Mrs Davis, I consider that they were right.
This judgment confirmed that it was not the normal practice to award costs in child care cases.
It contained, however, the seeds of what was to follow, for in effect Wilson J applied the general common law rule that costs follow the event in adversarial cases.
In re J (Children) [2009] EWCA Civ 1350 involved contact proceedings between a mother and father.
The district judge held a fact finding hearing to resolve allegations of violence made by the mother and denied by the father.
Most of the mothers allegations were held to be established and she sought the costs of the hearing.
The district judge refused her application and made no order as to costs.
The mother appealed to the county court.
She invited the judge to draw a distinction between the fact finding hearing and that part of the hearing that related to the welfare of the children.
The judge declined to do so.
He held that the father had not acted unreasonably in giving evidence in opposition to the mother and dismissed her appeal.
On appeal to the Court of Appeal, Wilson LJ, giving the only reasoned judgment, held that the circuit judge had been wrong not to adopt a compartmentalised approach.
He held at para 17: 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.
Wilson LJ went on to hold that the husband had not acted irrationally and that a proper exercise of the courts discretion did not depend upon why he chose to deny allegations that he must have known were true.
He remarked that issues of fact arose in most disputed cases in relation to children and that his decision in the instant case should not be taken as an indication that it was appropriate to make an order for costs in the vast run of such cases.
He held, however, that the mothers case fell into a separate and unusual category.
It was devoted exclusively to consideration of the serious and relevant allegations made by the mother against the father, most of which were established.
In these circumstances he held that the proper order was for the father to pay two thirds of the mothers costs of the hearing.
This decision could have been justified on the ground that the costs in question had been caused by the fathers unreasonable refusal to admit the facts that were ultimately proved against him, but Wilson LJs reasoning appears to have been simply that a party who makes allegations of fact against another party that prove to be unfounded, or who challenges allegations of fact that prove to be well founded, should be liable for the costs of resolving those issues, whether his conduct was reasonable or not.
We turn to the decision of Wilson LJ in the present case.
He held that Judge Dowse had erred in relying upon In re J to justify applying the general proposition that no order for costs should be made in a child case.
He had failed to appreciate that the true purport of In re J was that the general proposition should not be applied in relation to the costs of a fact finding hearing.
Wilson LJ rejected the submission made on behalf of the Council that the general proposition against awarding costs in care proceedings applied.
He held at para 18: I consider that, where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of a fact finding hearing the judge concludes that they have not established them, the general proposition is not in play.
In that situation he held that the judge should approach the question of costs with a clean sheet.
As to the approach that the judge should then follow, Wilson LJ cited at para 20 the statement that he had made in ancillary relief proceedings that were not concerned with a child, Baker v Rowe [2010] 1 FCR 413, para 25: 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 partys costs, will often properly count as the decisive factor in the exercise of the judges discretion.
He added at para 21: In my view the facts that the grandparents were faced with allegations of the utmost severity, that accordingly it had been reasonable for them to stretch their economy to the utmost in order to secure for themselves a professional defence against them and that in the event the result was an exoneration, were all matters which should have been of great, indeed in my view of decisive, importance to a judge who was about to write on a clean sheet.
The relevance of a split hearing
Care proceedings usually involve allegations of misconduct by some person, typically a parent who is looking after the child, but often, as in this case, of other persons.
Those against whom allegations are made are likely to wish to challenge them.
The parents primary concern may be not to lose care of the child.
Others may simply be concerned to clear their names.
The object of the proceedings is to reach the decision that is in the best interests of the child.
The procedure for achieving this in this jurisdiction is adversarial.
The proceedings are brought by the local authority.
The parents and the child or children concerned are made respondents.
Those against whom allegations of misconduct are made may be joined, either on their own application or at the initiative of the court, as interveners.
Before deciding what is in the best interests of the child it is sometimes necessary to resolve issues of fact.
The court will normally require the local authority to set out the findings of fact that it seeks to establish in order to show that the threshold requirements for making a care order laid down by section 31(2) of the Children Act 1989 are satisfied.
The decision to have a split hearing of care proceedings is essentially one of case management.
It is taken by the court.
The position was clearly spelt out by Lady Hale in In re B (Children)(Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35; [2009] AC 11: 74.
Care proceedings are not a two stage process.
The court does have two questions to ask.
Has the threshold been crossed? If so, what will be best for the child? But there are many cases in which a court has two or more questions to ask in the course of a single hearing.
The same factual issues are often relevant to each question.
Or some factual disputes may be relevant to the threshold while others are relevant to the welfare checklist: it may be clear, for example, that a child has suffered an injury while in the care of the mother, but whether the father or stepfather has a drink problem and has been beating the mother up is extremely relevant to the long term welfare of the child. 75.
The purpose of splitting the hearing is not to split the two questions which the court must answer.
It is to separate out those factual issues which are capable of swift resolution so that the welfare professionals have a firm foundation of fact upon which to base their assessments of family relationships and parenting ability: see In re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773.
A fact finding hearing is merely one of the case management possibilities contemplated by the new Public Law Outline There is no point in splitting the issues if the facts cannot be determined relatively quickly, still less if it is unlikely to result in clear cut findings to help the professionals in their work. 76.
But the finding of those facts is merely part of the whole process of trying the case.
It is not a separate exercise.
And once it is done
the case is part heard
The decision to have a split hearing cannot affect the principles to be applied by the court when dealing with costs, although it may have a practical impact on the courts decision.
The first part of a split hearing isolates specific issues of fact.
For the local authority and the court the resolution of those issues is a stepping stone to the final decision in relation to the welfare of the child or children concerned.
So far as interveners are concerned, their interests in the proceedings may be restricted to the findings that are made at the first hearing.
Having a split hearing makes it much easier to identify both the manner in which the issues of fact have been resolved and the costs reasonably incurred by the parties in relation to the issues affecting them.
It follows that, if it is correct in principle to award costs in relation to individual issues of fact, this can much more readily be done where there has been a split hearing.
Indeed the exercise may well be one that it is not practical, and therefore not desirable, to undertake where there has not been a split hearing.
Courts are, however, accustomed to making a special award of costs in relation to a discrete issue that forms part of a single hearing.
This appeal raises an issue of principle in relation to that practice in the context of care proceedings.
The issue of principle
The issue of principle raised by this appeal is whether in care proceedings a local authority should be liable to pay an interveners reasonable costs in relation to allegations of fact, reasonably made by the authority against the intervener, which have been held by the court to be unfounded.
The principle advanced by Cazalet J that I have quoted at para 14 has continued to be applied in cases not involving split hearings subsequent to the decision in In re J.
Thus in Coventry City Council v X, Y and Z (Care Proceedings: Costs) [2011] 1 FLR 1045 at para 192 His Honour Judge Bellamy ruled that it was still an appropriate test to apply.
In Kent County Council v Mother and others [2011] EWHC 1267 (Fam) Baker J rejected an application for costs against a local authority by an intervener who had been wholly exonerated in a fact finding hearing that was the first part of a split hearing.
He did so on the ground that the impetus for making the allegations against the intervener had been that of the court not the local authority.
The principle applied by Cazalet J appears to mirror the approach in proceedings under the Court of Protection Rules 2007 (SI) 2007/1744).
Rule 157 provides that where proceedings concern a protected persons welfare the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concern his personal welfare.
Rule 159 permits departure from the general rule if the circumstances so justify.
In G v E and Manchester City Council and F [2010] EWHC 3385 (Fam) Baker J awarded costs against a local authority that had been guilty of misconduct that he held justified departure from the general rule.
He observed at para 40: Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction.
Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made.
It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order.
Local authorities who do their job properly and abide by the law have nothing to fear.
These comments were endorsed on appeal by Hooper LJ: [2011] EWCA Civ 939, at para 17.
The statement of principle of Wilson LJ that we have quoted at para 23 above is at odds with the principle applied by Cazalet J and the judges who have followed him, giving rise to the issue that we have set out at para 29.
Should local authorities be protected from liability to costs in care cases?
The duties imposed on local authorities often require them to initiate public law proceedings.
The Court of Appeal has recently considered, in the context of cases where claims are conceded, whether different principles apply in the case of public authorities in proceedings in the Administrative Court.
The court held that the position should be no different for litigation in the Administrative Court from what it is in general civil litigation see M v Croydon London Borough Council [2012] EWCA Civ 595.
There is no general principle that protects a local authority that has acted reasonably in the course of its duties from liability for costs in public law proceedings.
Are there special considerations that apply in family proceedings involving children?
At para 12 we have identified a number of circumstances in which there is good reason for not applying the general rule that costs follow the event to family proceedings.
They are all circumstances in which orders for costs might have consequences that conflicted with the object of the individual proceedings.
They have no application to the position of a local authority that has caused costs to be incurred by making allegations that have proved to be unfounded.
Submissions
Miss Bazley QC for the Council advanced a broad argument of policy in support of the Councils appeal.
Local authorities have limited funds.
Their costs in relation to care proceedings are met from their Childrens Services budgets.
There are many other claims on this budget.
Miss Bazley submitted that if local authorities are to be at risk of paying the costs of those against whom they reasonably make allegations in care proceedings, this is likely to inhibit them from doing so, to the general detriment of children at risk.
More generally, the child services provided would suffer as a result of this additional financial burden.
Miss Bazley produced in support of her submissions the results of what might be described as an amateur survey carried out by junior counsel and Bar students into the attitudes of 28 local authorities to the risk of liability to costs in care cases.
Although no objection was made to this material, we do not consider that it would be appropriate to base conclusions upon it.
No evidence is needed, however, to support the proposition that if local authorities are to become liable to pay the costs of those that they properly involve in care proceedings this is going to impact on their finances and the activities to which these are directed.
The Court can also take judicial notice of the fact that local authorities are financially hard pressed, as demonstrated by the fact that their counsel have appeared before us without payment.
Miss Bazleys submissions were supported by CAFCASS.
They made the further point that if costs are to be awarded against local authorities who fail to make good allegations reasonably made, costs are likely to be awarded against interveners who are held wrongfully to have challenged allegations made against them, which is likely to result in a reluctance to intervene, to the detriment of the conduct of care cases.
Although the Grandparents are no longer at risk, Mr Hirst who appeared for them, advanced their case with vigour.
He accepted that there was a general principle that costs should not be awarded in cases involving children, but argued that Wilson LJ had been correct not to apply this principle to fact finding hearings.
Interveners in such hearings would be concerned principally in clearing their names.
The issue was not what was in the best interests of the child but whether the facts alleged by the local authority were true.
Local authorities who failed on that issue should, in justice, pay the interveners costs.
Mr Hale, who appeared for the Grandparents Association, did not put the distinction between a single hearing and a split hearing at the forefront of his argument and, indeed, some parts of his written case did not support that distinction.
Thus he submitted at para 47 that whether the fact finding was listed separately or together with the welfare determination made no discernable difference and at para 48 that not every fact finding hearing would lead to an order for costs.
All other factors and considerations were in play.
Mr Hale focussed primarily on general considerations of policy.
He submitted that there was no reason of public policy for treating local authorities differently from other parties in public law proceedings.
The suggestion that potential liability to costs would fetter their performance of their public duties was anecdotal and unjustified.
Justice would best be served by giving the court an unfettered discretion in relation to costs.
In a case such as the present it would be an affront to natural justice to leave the interveners to pay their own costs.
Discussion
The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigants costs should be publicly funded.
The former question is for the court; the latter for the legislature.
Whether a litigants costs should be publicly funded involves issues in relation to access to justice and the requirements of article 6 of the European Convention of Human Rights.
Mr Hale invoked that article in support of his argument that where allegations made against an intervener are not made out, the local authority which advanced those allegations should be liable for the interveners costs.
We consider that this argument was misconceived.
The requirements to provide public funding in the interests of access to justice and of compliance with article 6 apply at the outset of legal proceedings, not when they are concluded, in the light of the result.
The Funding Code prepared by the Legal Services Commission pursuant to section 8 of the Access to Justice Act 1999 makes provision for public funding in proceedings under, inter alia, section 31 of the Children Act 1989.
The effect of the code is that children, parents and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings: see volume 3C 427 of the Legal Services Commission Manual.
There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.
If in principle a local authority should be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded, then this liability should arise whether or not the interveners are publicly funded.
In the present case, the five men who intervened and were exonerated should also have sought and been awarded costs.
The burden of costs awarded against local authorities in such circumstances is likely to be considerable.
When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority.
In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him.
The Children Act 1989 imposes duties on the local authority in respect of the care of children.
If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings.
In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings.
It is for the court, and not the local authority, to decide whether the allegations are well founded.
It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.
Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act.
Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate in the vast run of these cases to make an order for costs in whole or in part by reference to the courts determination of issues of historical fact.
But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing.
The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact.
The effect on the resources of local authorities, and the uses to which those resources are put would be significant.
For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings.
Judge Dowses costs order was founded on this practice.
It was sound in principle and should not have been reversed by the Court of Appeal.
Accordingly we allow this appeal and restore Judge Dowses order, on the basis that it shall not be relied upon to deprive the grandparents of the costs to which the Court of Appeal held that they were entitled.

Output:
This appeal concerns the liability of a local authority to pay the costs of a party to care proceedings.
The proceedings related to two children, whose parents were separated.
The local authority applied for a care order under section 31 (2) Children Act 1989 in response to the making of allegations by the children that they had suffered sexual abuse by their father and six other men, in which the fathers parents (the grandparents) had colluded.
The six men and the grandparents were joined to the care proceedings as interveners.
The judge conducted a lengthy fact finding hearing, as a result of which he exonerated five of the six men and the grandparents of any such abuse.
The interveners were entitled to be represented at the hearing.
The six men qualified for legal aid but the grandparents did not.
They incurred costs of 52,000, which they met by taking out a mortgage on their house.
At the end of the hearing they applied for an order that the local authority should pay their costs on the ground that they had succeeded in defending the allegations made against them.
It was accepted that the local authority had acted reasonably in bringing the proceedings.
The judge refused their application on the basis that it was not usual to order costs in a child case against a party unless that partys conduct had been unreasonable or reprehensible.
The Court of Appeal allowed the grandparents appeal, holding that costs could be awarded in respect of discrete fact finding hearings.
Although it rarely hears appeals relating solely to costs, the Supreme Court granted permission to appeal because of the important point of principle raised by the appeal, on terms that, whatever the result, the grandparents entitlement to recover their costs as a result of the order of the Court of Appeal would not be disturbed.
The Supreme Court unanimously allows the appeal.
It holds that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of discrete fact finding hearings.
Lord Phillips delivers the judgment of the court.
Family proceedings depart from the general rule applicable in civil proceedings that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.3(2)(a)).
This is because there are special considerations that militate against the approach appropriate in other kinds of adversarial litigation, particularly where the interests of children are at stake.
It is usual in proceedings involving a child for no order to be made in relation to costs [11].
Care proceedings usually involve allegations of misconduct towards a child by some persons, typically a parent.
The object of the proceedings is to reach a decision which is in the best interests of the child.
Often it is necessary to resolve issues of fact which are disputed.
The decision whether or not to have a split hearing is one of case management, taken by the court, and cannot affect the principles to be applied by the court when dealing with costs.
If it is correct in a particular case to award costs in relation to individual issues of fact this can more easily be done if the costs associated with those issues are incurred in a separate hearing, but this is only relevant to the practicality of such an order [28].
The question of whether it was just to make an award of costs against a public authority had to be distinguished from the question of whether a litigants costs should be publicly funded, which was a matter for Parliament [39].
The current arrangements might lead to injustice for interveners in the position of the grandparents in the present case, but it did not follow that justice demanded that any deficiency in the provision of public funding should be made up from the funds of the local authority responsible for care proceedings [40].
Equally, if in principle a local authority should be liable for the costs of interveners who succeed in showing that factual allegations against them are unfounded, this liability should arise whether or not the interveners are publicly funded [41].
It was legitimate to have regard to the competing demands on the limited funds of the local authority.
It was not right to treat it as in the same position as a civil litigant who raises an issue that is ultimately determined against him.
A local authority has a duty to investigate reports that a child has been subjected to significant harm and, where there are reasonable grounds for believing that they may be well founded, to instigate care proceedings.
In this respect the role of the local authority has much in common with that of a prosecuting authority and it is for the court to determine where the truth lies [42].
There was no valid basis for restricting the approach of the Court of Appeal in this case to findings of fact in a split hearing and the effect on the resources of local authorities would be significant [43].
For these reasons the Supreme Court concluded that that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings [44].