In a case involving a mother’s successful challenge against a placement order, the Court of Appeal said that local authorities should not have to cover funding shortfalls in legal aid.
Background
The mother, a trained nurse, was arrested in June 2015 on suspicion of fraud and neglect after twice administering an EpiPen to her daughter, whom she thought was having an allergic reaction. Medical opinion concluded that the EpiPen was administered unnecessarily, although experts agreed that the actions were due to an overanxious mother and criminal charges were dropped. The child has been in foster care since the trial.
In M (A Child) the court considered the previous hearing and whether it failed to make findings on the future risk of harm to the child were she returned to her mother’s care. Further, the court considered if the judge had given an adequate clear and reasoned analysis on the issues which led him to conclude that the permanent separation of the child from her mother would be in the girl’s best interests.
At the Court of Appeal, Lady Justice King granted the mother’s appeal.
Given her successful appeal, the mother applied for her appeal costs of nearly £20,000 to be paid by the local authority, which argued that it was reasonable to defend the appeal and that any costs order would be taken from ‘its stretched resources’.
Comments and Consideration
In her decision not to give a costs order, Lady Justice King said: ‘I have considerable sympathy with the position of ‘the 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.
As Lord Phillips said in a separate case in 2012 “justice cannot demand that any deficiency in legal aid funding should be made up out of the funds of the local authority.”
“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 that decision might be justified. But in my judgement, neither of these indicators is strong enough to justify that unusual course.”
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Olivia Bell obell@bromleys.co.uk
Keith Platts kplatts@bromleys.co.uk
Steve Gwenlan sgwenlan@bromleys.co.uk
Martine Swinscoe mswinscoe@bromleys.co.uk
Kate Allsop kallsop@bromleys.co.uk
Jessica Horsman jhorsman@bromleys.co.uk
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