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.