Laws of Eve: No winner in child care cases
In civil litigation matters, the winning party is usually rewarded by an order that the losing party should pay his/her costs incurred in pursuing the court action. However, although civil litigation matters include family law proceedings, family law proceedings are exceptions to the general principles in relation to costs - because the court rarely awards costs to the so-called successful party.
That approach to family law proceedings is not unique to Jamaica. In fact, it may be fair to say that even among those family law cases in which the winning party is awarded costs, an award of costs in cases that involve the care and protection of children is almost unheard of.
On March 25, 2015 in the case of S (A Child)  UKSC 20, the United Kingdom Supreme Court, who called the child 'Amelia', outlined the proper approach to ordering the unsuccessful party to pay costs in cases about the care and upbringing of children. During the course of that decision, Lady Hale, who wrote the only decision of the court, reviewed several cases and outlined the principles involved in dealing with the issue.
In Amelia's case, the local authority wanted to put her up for adoption without her father's consent. He challenged the local authority and the guardian with whom she had been placed. At the initial hearing, the father failed in his bid, but the Court of Appeal allowed his appeal and held that the judge had been wrong, in that, the father's circumstances should have been thoroughly assessed before the adoption placement was made. Important, for the purposes of this article, the Court of Appeal also ordered the local authority to pay the father's costs of the appeal.
On that issue surrounding the award of costs, Lady Hale made several important points, including the following:
1. As far back as 1992, the UK Court of Appeal observed that it is unusual to make an order for costs in children's cases, except in exceptional circumstances. However, there is no rigid category of cases that would be considered suitable for making such an award.
2. The rationale for adopting the 'no costs' approach, may be deduced from the comments of Justice Wilson in the case of Sutton London Borough Council v Davis (No. 2)  1 WLR 1317, in which he said that (I paraphrase for the sake of brevity), proceedings for determining the future of a child are partly inquisitorial and in the outcome the child is the only winner. The court does not wish to discourage parties with a proper interest in the welfare of a child from participating in the matter, because they fear that costs will be awarded against them.
3. That rationale ties squarely into the overriding principle that, "the welfare of the child is the paramount consideration." That principle applies equally to cases that involve efforts to protect children from harm as it does to disputes between parents or other family members about a child's future.
4. The inquisitorial nature of the proceedings means that the court can determine for itself what issues are relevant, the persons from whom it wishes to hear in determining a child care matter and even carry out independent investigations. For that reason, the court presumes that each person appearing in the matter has an interest in the best outcome; so "no-one should be deterred by the risk of having to pay the other side's costs from playing their part in helping the court achieve the right solution."
5. The parties need to be able to work together in the interests of the child, so stigmatising one party by labelling him/her the loser by making an award of costs is unlikely to achieve that result.
6. The prospect of having to pay another party's costs would likely reduce the resources available to look after the child in issue, or other children.
Lady Hale made it clear that the issues are no different if the matter is a first instance hearing or an appeal; but there may still be appropriate cases for a costs order to be made. For example, a parent's reprehensible behaviour towards the child or unreasonable conduct during the course of the proceedings, and the categories of such cases are not closed.