John Bolch on costs in cases concerning children

Family Law|April 9th 2014

The case of K (A child – Appeal against a costs order within private law proceedings) is, as the name suggests, an example of a costs order being made in private law proceedings concerning children. Such orders are very rare, and the case is further confirmation of this.

The general rule in civil court proceedings is that the unsuccessful party will be ordered to pay the costs of the successful party. However, that rule does not apply to family proceedings (it is not generally considered appropriate to talk of ‘successful’ and ‘unsuccessful’ parties in family proceedings). In family proceedings the rule is simply that the court “may at any time make such order as to costs as it thinks fit”.

So, costs orders can be made in private law children proceedings. The rule is not at all helpful in indicating when such orders are likely to be made, but it does say that certain rules relating to costs orders in civil proceedings do apply in family proceedings, in particular that when considering whether to make a costs order the court should have regard to the conduct of all the parties.

K (A child) concerned a child born in 2006. His parents separated and he lived with his mother in Milton Keynes, with his father having contact. The mother subsequently relocated to Kent, without notifying the father. As a result of the move the parents both made applications for residence orders. The applications were heard by the Buckinghamshire Family Proceedings Court. They which made a residence order in favour of the mother and a contact order in favour of the father.

The mother’s solicitor made an application for an order that the father pay the mother’s costs, in the sum of £5,155.80. The justices made a costs order against the father in that sum. The father appealed against the order.

The appeal went before Her Honour Judge Brown in the Milton Keynes County Court. In her judgment she set out in detail the law on making costs orders in children proceedings, including the previous case law, which made it clear that the starting-point is that there should be no order for costs, and that departure from this rule is rare. In other words, costs orders in these cases are exceptionally unusual.

Judge Brown then turned to the issue of why the justices had made a costs order against the father. Essentially, this was because they considered that he had acted unreasonably in pursuing a case which had little merit, particularly after he had seen the Cafcass report, which recommended that the child should continue to live with his mother.

Judge Brown did not agree. The father, who had been unrepresented throughout the proceedings, had not acted unreasonably in pursuing the case. The justices had stated that he unreasonably continued the litigation due to his “displeasure” at the mother’s move to Kent. However, they made no reference to the mother’s lack of discussion or consultation with the father about the child’s relocation, or the effect that it would have on his contact schedule. In particular, lack of acceptance of the recommendation in a Cafcass report was certainly not of itself a justification for a costs order.

Accordingly, the father’s appeal was allowed and the costs order was discharged.

Costs orders in children proceedings will surely always be rare. Whilst unnecessary litigation is always to be discouraged, for a parent to be deterred from making an application relating to their child because of the ‘threat’ of having a costs order made against them would clearly not be desirable.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. JamesB says:

    I have a lot of respect for this gentleman. He has showed immense bravery to have done this.

    Family court judges have been doing this on the quiet because of the secret nature of the family courts for a while in order to pressure fathers not to take difficult cases to court or try to enforce reasonable contact because as we all know the family court struggles with these types of cases and prefers to simply blame the father and deem contact, or at least a reasonable amount of contact, too difficult for the children.

    This did happen to me, and probably a lot of other LIP fathers trying to get to see more of their children and faced with a silk barrister. The judge ordered a hearing’s worth of costs against me and rather than this chap, I just gave up, which is what the judge wanted.

    Well done on showing this and I hope it will be used as a precidence as the difficult question of how to make contact happen when their is an obstructive parent needs to be answered by the judges and enforcement, rather than the APPAULINGLY BAD METHOD of shooting the messenger and the person asking the question. Which in my case was by an old circuit court judge. This type of disgusting out of place practice needs to be killed and I have MASSIVE RESPECT for this gentleman in doing so, it will have taken massive guts and determination and skill and a lot from him and he has done a great service to this country in doing so and I hope it leads the way to less ridiculous judgements (such as mine) which are not reported in this country.

    It is not good enough for the courts to say that the issue is too difficult for them to deal with in the way the original judgement did and shoot the person asking the question. Hopefully this will serve as a wake up to them and this practice and it also highlights the need for more openness and transparency in the family courts.

    This man is 1 of thousands, the other 99.99% will have just given up and not paid until pursued or paid and been bitter. It is a trajedy what these courts do to non resident parents, it is a disgrace. I like to think it is getting better, that wouldn’t be difficult as it has been until now disgraceful. The campaigning has not been without reason and we need more openness to see the bad decisions these places make day in day out.

    Law should be about justice being done and justice being seen to be done, neither can be said to be the case in the family law courts of England and Wales currently they need to change, as highlighted by this case and the many others unreported where injustice is done day in day out.

    That judges pick on LIPs day in day out as they think they are an insult to the profession and the law and should have hired a lawyer as they do is also completely bad and out of order. Really bugs me these horrible disgraceful places of bad practice, especially when they are so important and also they are normally hidden from view.

  2. Luke says:

    ” However, they made no reference to the mother’s lack of discussion or consultation with the father about the child’s relocation, or the effect that it would have on his contact schedule.”

    Judge Brown is of course right, how could his request be unreasonable when she had acted in this way – the really disturbing thing in this case is that this had to go to appeal – sometimes you have to ask what on earth is going on ???

  3. Tristan says:

    Just an out and out absurd decision in the first instance, merely demonstrating, if demonstration is needed at all, just how biased courts are against fathers.

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