London Borough of Newham v L [2016] EWFC B125 (02 December 2016): The cost of non-compliance

27/07/2018

Counsel from 3 Dr Johnson’s Buildings, Catherine Piskolti, appeared in this case and represented the Mother.

The case concerned a one-year old child, A, whose mother, L, was just 19. Care proceedings were issued in April 2016 in respect of A. A was a vulnerable adult and was also vulnerable by having been a Looked After Child herself within the same local authority. The case settled on the first day of the hearing by way of agreement that a special guardianship order should be made in favour or Mr and Mrs B. Sadly the Court was unable to make such orders because of the catalogue of failings by the London Borough of Newham, which included significant failures to comply with Court and case management directions. It took 6 days of court and advocates time for the matter to be able to be resolved. A special guardianship order (“SGO”) was made to Mr and Ms B, by agreement, on 2 December 2016.  At the conclusion of the hearing the Judge considered whether a cost order should be made against the London Borough of Newham (“Newham”), whether the judgment should be published and whether the London Borough of Newham should be entitled to anonymity within the judgment.

Background of failures

A psychological assessment (January 2016) and parenting assessment of the Mother (March 2016) recommended that further work needed to be done with her. The Mother was noted to be “emotionally vulnerable.” [5] No enquiry was made by Newham in respect of the further psychological work until August 2016. No follow up work was done in respect of the parenting assessment.

On 2 August 2016, at the IRH, it was noted that there was delay in filing Newham’s evidence, including their final evidence, no family support worker had been put in place and Newham had not assessed Ms B (the proposed special guardian). The Court recorded in the case management order, “its complete and utter dissatisfaction as to the non-compliance in this case and the impact the delay has had upon the timetable.” [18] There was a non-compliance hearing on 25 August 2016.

On 20 September 2016, the Court extended the 26-week timetable “because of the litigation failure of the local authority.” [22]On 12 October 2016, Newham were directed to serve DBS and medical checks of the proposed special guardians, the financial support and support package proposed and further statements.

On 7 November 2016, (the second non-compliance hearing) the DBS checks and medical assessments of the proposed special guardians, Mr and Ms B, were outstanding. The Police National Computer checks of Mr and Ms B had not been served. An extension of time for the service of the financial support and support packages was sought and granted. No final care plan was available.

On 21 November 2016, the first day of the final hearing, Mother did not oppose the making of a SGO to Mr and Ms B, subject to an appropriate support plan being provided for her and the proposed special guardians. The medical checks, DBS checks and support packages remained outstanding and Mr and Ms B were yet to receive legal advice. The Court was mistakenly informed by Newham that the legal advice had been sought and received by Mr and Ms B and the required checks had been sought and were being chased. The matter was adjourned until 23 November.

On 23 November, Newham filed an amended care plan (dated 22 November 2016). The Court was informed, for various reasons (which are set out in the judgment), that DBS checks remained outstanding, medical assessment reports had not been obtained and the PNC check had not been conducted. Mr and Ms B’s solicitor had not received the financial support plan and so legal advice had not been obtained. The matter was, again, adjourned. Costs were raised by Miss Piskolti for Mother, who “made the valid point that, if Newham had complied with directions, the hearing could have been finalised on Monday 21 November 2016.” [32] Permission was sought for the judgment to be published.

On 24 November 2016, the Court was finally provided with the DBS checks, PNC checks and the medical assessments. Mr and Ms B’s solicitor had concerns about the support plan and requested urgent amendments. Mother’s support package was noted by the Judge to be “written in the most general terms.” Newham provided no evidence that the therapeutic work with mother had been carried out. There was no final care plan. The hearing was again adjourned. The issue of wasted costs was reiterated by Miss Piskolti on behalf of the Mother.

On 25 November, the Court was presented with a care plan (dated 24 November), which stated “on the basis of the assessments and the recent deterioration between the mother and the applicants Newham was not confident that the making of the special guardianship order necessarily met the best interests of A but that Newham respected that further delay would not be in A’s best interests and so, if the Court were minded to make a special guardianship order the support package was specified.” [36] Other changes were made to previous proposals, including contact arrangements. A support plan was filed, with like hesitations expressed by Newham.

At the outset of the hearing, the Court was informed that these documents should actually be ignored. Newham were thus directed to file and serve an updated care plan by the end of the day. This was not done. Newham sought an adjournment until 29 November 2016 which was refused. The Deputy Director of Children’s Services was directed to attend on 28 November 2016 to explain why the final care plan and support package had still not been served. The Deputy Director attended and, whilst unable to provide an explanation for Newham’s failures, apologised on Newham’s behalf. The judgment notes that “this important task was just not prioritised by Newham.”[42]

On 28 November 2016, an amended care plan was provided which the Judge described as containing “contradictory descriptions.” [44]No amended support packages had been provided and legal advice was yet to be obtained by Mr and Mrs B. The final care plan and support package were not available until late afternoon of that day and so legal advice could not be obtained by Mr and Ms B. The hearing was adjourned.

Wasted costs and publication of the judgment

At a hearing on 2 December 2016, the Court was eventually able to make the orders sought, by agreement. Miss Piskolti, on behalf of the Mother, supported by the Guardian, renewed her application for costs and for the judgment to be published. This was opposed by Newham.

In considering whether to make a wasted costs order against Newham, the Judge considered she may make a costs order against a Local Authority where they have “behaved in a way which is improper, unreasonable or negligent.”[71]The key authority is Re T (Costs: Care Proceedings: Serious Allegation Not Proved) [2013] 1 FLR 122, SC which highlighted the rarity of costs orders being made unless a party’s conduct was reprehensible or unreasonable. Courts are generally slow to impose costs orders against Local Authorities so as to prevent looming threats of costs consequences deterring them from issuing care proceedings.

The Judge deferred to the discretion conferred by Part 44 Civil Procedure Rules, which is incorporated into Part 28 Family Procedure Rules (with some limitations, as set out in that Part), which provides that conduct can be taken into account when considering whether to make a costs order. The Judge’s exercise of discretion in making a costs order was encouraged by Newham “quite properly” not opposing the order. [74] The Judge ordered that Newham were to cover the costs of the advocates attendance at Court from 23 November thereafter. The Judge opined that this order was sufficient to reflect the poor conduct of Newham, rather than the alternative, which would see Newham pay the entirety of costs incurred from 22 November onwards. The Judge recognised that “this is not a case where Newham was unreasonable in bringing or pursuing the proceedings,” [77] which is an important factor and seemingly in line with the general approach to costs orders against Local Authorities and the Courts’ not wishing to deter the pursuance of reasonable care proceedings. 

The bone of contention was whether those costs should be assessed on the standard basis or the indemnity basis. The Judge took into account that an order for indemnity costs is “wholly exceptional” (Re B (Indemnity Costs) (2008) 1FLR 205) and is only justified where there is unreasonable conduct of a high degree [76]. As Newham had already been reprimanded for their conduct by the costs order being made, the Judge considered a standard basis assessment to be proportionate.

The Judge then turned her mind to the issue of publication of Newham’s name in the judgment, which was opposed by Newham. The Judge referred to the Practice Guidance issued by the President of the Family Division, “Transparency in the Family Courts,” and noted that where a judgment is published, so should names of public authorities unless compelling reasons not to do so. It was argued on behalf of the Mother and the Guardian that publishing Newham’s name was in the public interest. The Judge agreed; “Newham is a public body which should have public accountability” [89].

With the above in mind, it is no surprise that the Judge was outwardly critical of Newham, expressing that “there has been a clear failure on the part of Newham in relation to the Mother.”[53]The Local Authority has a duty to comply with Court directions, as do all parties. “Basic Guidance to Good Practice in Care Proceedings Across London” [2011] 1 FLR 201 is clear that “it is the responsibility of the parties to adhere to the timetable the court has set for the child.”

Newham’s litigation conduct resulted in a 6-day hearing, when only one day was necessary, given the parties were in agreement as to the proposed order to be made on the first day of the hearing. Their failure to comply with directions resulted in the avoidable use of Court resources and public money. More importantly an emotionally vulnerable young mother was put through the ordeal and trauma of a hearing which was significantly longer than required.

The judgment demonstrates that the Court will hold Local Authorities to account for their failures and there is no excuse for non-compliance with Court directions. The judgment “sends a clear signal that the Court deprecates such failures” [89]. Such an order however does little, one can imagine, to repair the damage inevitably done by Newham to their relationship with this Mother (who was a care leaver), and perhaps even the special guardians, with whom they must continue to work with going forwards.

The published judgment can be found here:

http://www.bailii.org/ew/cases/EWFC/OJ/2016/B125.html

Laura Wakeford