MG & JG v JF: A specious distinction

Family Law|March 12th 2015

As I have indicated here previously, I have the utmost regard for Mr Justice Mostyn. However, with all due respect to him, I cannot reconcile myself with his decision in MG & JG v JF.

Without going into the details, MG & JG v JF was a private law children dispute which, for the sake of simplicity, I will say involved two ‘mothers’ (MG and JG) and a father, JF.

Now, the basic rule on costs in private law children proceedings is very clear: orders for costs in such cases would only be made where reprehensible behaviour or an unreasonable stance was proved against the party from whom the costs were sought. It is a very well known and long established exception to the general rule in English law that the loser pays the winner’s costs.

In children proceedings, we do not like to talk of ‘winners’ and ‘losers’, and therefore costs orders are not made against one party, unless they have been guilty of reprehensible behaviour, or have taken an unreasonable stance in the proceedings, for example seeking an outcome that was clearly never going to happen.

Of course, since April 2013 legal aid has not been available for private law children proceedings. This was not a problem for JF, as he had the means to afford representation. However, MG and JG did not – prior to April 2013 they would both have been eligible for legal aid.

So, to get around this problem, MG and JG applied to the court under Schedule 1 of the Children Act for an order that JF pay them a lump sum to cover their legal costs. The application went before Mr Justice Mostyn, who ordered JF to pay 80 per cent of each of the claims of MG and JG.

In the course of his judgment, Mr Justice Mostyn pointed out that even though MG and JG were certainly not entitled to an order for costs they were entitled to seek an order for costs funding. As he said: “to JF that may seem (with reason) to be a specious distinction without a difference, but that is where we find ourselves, now that [legal aid has been abolished]”.

He went on to say that it could be said that it was grossly unfair that JF should have to pay MG and JG’s costs, “But that is where the government has left him. It is a sorry state of affairs.”

Quite, but I still don’t accept that he should have to pay. For a start, Schedule 1 orders are intended to be either to the child, or for their benefit. I think it is stretching things a little to say that an order requiring one of the child’s parents to pay the legal costs of the other parents is for the child’s benefit.

But it is not just about the semantics of Schedule 1. Mr Justice Mostyn’s order clearly breached the no costs in children proceedings rule. Logically, there is no difference whatsoever between such an order and an order requiring JF to pay MG and JG’s costs.

The harsh fact of the matter is that when the government in its infinite wisdom chose to abolish legal aid, it was MG and JG that were the victims of that decision. For better or (in reality) for worse, they are the ones who must suffer, not anyone else. That may sound hard, but the blame lies with the government.

The decision also brings with it the spectre of, effectively, costs orders in private law children proceedings, as MG and JG will surely not be the last ones to attempt this tactic (unless, of course, Mr Justice Mostyn’s decision is successfully appealed).

Do we really want one party to be deterred from taking part in children proceedings, for fear that they will be burdened with the other party’s costs, as well as their own? Will that best serve the children’s welfare? I think not.

The full report of the case can be read here.

Photo by drpavloff via Flickr

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