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.