The delicate issue of costs in children cases

Family Law|April 14th 2016

The general rule as to legal costs in civil court proceedings is that the winner should pay the loser’s costs. However, in family proceedings it is recognised that there isn’t a ‘winner’ (except perhaps the child) and a ‘loser’, and thus the general rule as to costs in family proceedings is that there should be no order as to costs, i.e. each party should pay their own legal costs.

This rule certainly applies to children cases, where it is considered that parties should not be discouraged from taking part because of the possibility that they might be ordered to pay the other party’s costs. However, as I have explained here previously, the court can make costs orders in children proceedings, not because a party has been unsuccessful, but because their conduct before and in the course of the proceedings has been such as to warrant an order for costs being made against them. The conduct must have been “reprehensible or unreasonable”, thereby unnecessarily increasing the other party’s costs.

The issue of whether or not to make a costs order in a children case is, however, a very delicate one, as was demonstrated by the judgment in E-R (Child Arrangements), handed down by Mr Justice Cobb in the High Court last Friday. I’m not going to go into the detail of the case here, just the costs aspect, and the possible implications of the costs order that was made by Mr Justice Cobb.

The background to the case is extremely sad. It concerns what is now a long-running dispute over the arrangements for a six year-old girl, ‘T’, whose mother died of cancer a year ago. The parents had separated in 2011 and T had remained with her mother. Proceedings began prior to the mother’s death and in January 2015 it was ordered that upon the mother’s death the child should move to live with her father, rather than with Mr and Mrs H, family friends of the mother, with whom she is currently living. Mr. and Mrs. H, supported by the mother, appealed that order, and their appeal was allowed. The Court of Appeal concluded that the Judge had erred in applying a ‘presumption’ of natural parent care, and had attached too great a significance to the biological ties of T to her father. The Court therefore directed a re-hearing.

The judgment handed down on Friday related to that re-hearing. Without going into the details, Mr Justice Cobb reached the clear conclusion that T’s interests would be best served by her remaining in the care of Mr. and Mrs. H. He therefore made a Child Arrangements Order that T live with them.

Following that judgment Mr and Mrs H applied for an order that the father make a contribution to their costs. The reasoning behind this was that they considered that the father had increased their costs (which incidentally were estimated to have exceeded £70,000 since the appeal hearing), by pursuing various unsuccessful applications or unsuccessfully opposing applications. For example he had unsuccessfully opposed an application by Mr and Mrs H for leave to take T to Alaska for her maternal cousin’s wedding. He had also increased the costs by introducing evidence at a late stage and by not merely disputing the evidence of both the Consultant Clinical Psychologist who had prepared a psychological report and the Children’s Guardian, but by “launching a full-scale assault on their integrity and professionalism”.

Mr Justice Cobb agreed that the father had in some respects behaved unreasonably in the litigation. Accordingly, he ordered that the father should make a contribution towards the costs of Mr and Mrs H, in the sum of £10,000. The father, it should be said, had claimed that he had limited funds with which to make any payment of costs.

Now, I don’t necessarily disagree with Mr Justice Cobb’s order, but it does concern me that it may have very serious implications for T’s future.

At the beginning of his judgment Mr Justice Cobb had said the following:

“Unfortunately, the argument about T’s future living arrangements have driven hurtful and deeply destructive divisions between those who care most about T; this has been unbearably apparent through this hearing. I hope that with the delivery of this judgment, and a determination as to the way forward, those involved in T’s life can start to heal their differences, and pull together in her interests.”

The main part of his judgment concluded with a similar sad exhortation:

“The mother would, I am sure, be horrified if she knew that the legacy of her parting had been to thrust T into the centre of a 20-month legal battle over her future … [the judge who made the original order] referred to the “outpouring of vitriol and prejudice” which the proceedings had generated in January 2015; I regret that this has continued, and sadly T has not been successfully shielded from it.

“At a time when everyone should have been helping T with her grief and with her adjustments, they have been pulling in opposite directions. The time has long since come for these parties to put aside their grievances and bitterness. They all owe it to T to do so. If they do not, then they will cause irreparable harm to T, a young person who has already had more than her fair share of distress in her short life.”

What concerns me, of course, (and I really hope that I’m wrong about this) is that the costs order will have entirely the opposite effect, extending the animosity into the future. The father (who has indicated he wishes to appeal) will be even less inclined to put differences aside, as will Mr and Mrs H, if the father does not quickly make payment.

Would it ultimately have been better for T for there to have been no order for costs? I’m not sure – if the father was going to appeal anyway, then perhaps it would have made no difference. All I think that can be said with certainty is that the costs order will not help with the process of rapprochement.

The full report of E-R (Child Arrangements) can be read here.

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:

    A costs order in children proceedings against female with care, now that would be news. I got one of these for not attending a hearing when I couldn’t as I was away.

    Judges do these to get the fathers to go away and stop asking difficult questions from time to time, like why don’t I get to see the kids very much.

    Like with the csa/cmec/cms, if all you have is stick and no carrot you, in this case the Judges, need to consider if what they do is worthwhile. Personally I think they are worthless pieces of s%$t, and the one I am talking about was a circuit court judge. Guess he didn’t like what he thought was being disrespected. Too used to having his backside kissed by lawyers.

  2. JamesB says:

    For once John I agree with your post here on this. I also point out that they are harsher on fathers than mothers as a rule. Mother’s solicitor wrote in and got an adjournment, I wrote in and didn’t, if Mum doesn’t turn up, adjournment, if father doesn’t then costs order. These England and Wales family law places are a bad joke.

  3. The Devil's Advocate says:

    Interesting. I was informed by my legal Advocate three years ago if the Finding of Fact Hearing was proven against me l would have had to repay not only my costs but that of the applicant. Not only was there NO empirical evidence, in the balance of probabilities, provided against me but indeed now the opposite is being investigated on the applicant for malicious intent of falsifying evidence to the Local Constabulary, collusion to perjure with the Local Authority public servants who promoted perjury and perverting rhe course of justice in Court and perverting evidence under the Data Protection Act. Phew no wonder l didn’t have my costs to bear! But what of the applicant’s mendacious position. Well with rabidly feminist arbitration – nothing to date..but “sow the seeds”…
    The corruption in some Family Courts is astounding. Miss Marple would have had a field day!
    The father in the of this blog was proven by “psychologists” to not to be capable of providing the best interests for the child. Oh dear l wonder how the Court’s would have fared if this case went to a Family Court in say Mexico or Brazil?
    It seems that the UN Convention of the Rights of the Child Article 9.3 and 10.2 as always were not declared at the beginning of this Hearing and then independent analysis of the capability of the father to promtes his rights for his child’s best interest was never investigated comprehensively. Doubtful and I may be wrong. ..but others may see that l am not.
    This child loses her mother under such sad conditions will when older question the validity of her accession by others of no other than an emotional hold and not biological and should have come into a joint “family” arrangement with the father and his family…whom if they do not have criminal convictions of child abuse we presumewould be quite capable.
    Of course l am only stating what general society may hold sway. The father as you say, and you did not describe the case in specific detail, may have not wanted to be parentally responsibile…but it seems he did. Oh dear, we really need new and proactive parentally and family responsible legislation. Denying family engaging responsibility for their children as it is like giving a match to a child in a dynamite factory currently, irresponsible and not in their best interest. Sorry John l am not getting at you. The system stinks and you cannot use the excuse …well this is all we have…which in the case the care for this child’s needs as with many millions of others in the UK is poor and shameful.

  4. Max Horace says:

    The judge imposed a penal notice on the maternal grandfather to reassure the father that his child would come back from Alaska .The judge had been presented with a will which is contested and the subject of a caveat as is the family home .This will drafted 2 weeks prior to the mothers death states that the child’s aunt is made a guardian whilst also being a trustee and that her own children in the event of the child’s death inherit her money property etc Bear in mind the Aunt who was instrumental in this last minute contentious amendment had as a result of Poker gambling debts run up in Palmer Alaska lost her family home So she coerces her sister who has 3 brain tumours liver cancer bone cancer and long term mental illness to amend her will aided and abetted by the child’s grandfather Judge Baker was quite right to impose the penal notice Cobb J had no right to award costs on this point CobbJ showed in court his inexperience and allowed absent witnesses to pervert the course of justice at least in the short term This case is groundbreaking and deprives a child of her father on the false premise that a move would cause psychological harm Perhaps losing both parents would as a result of ill informed professional judgement be a far greater loss to this vulnerable grieving child.

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