The general rule on costs in English law is that the loser should pay the winner’s costs (lawyers refer to this rule as ‘costs follow the event’). However, that rule does not usually apply to family proceedings, in particular proceedings relating to children, because it is not considered appropriate to discourage family litigants from going to court for fear that they may be responsible for the other party’s costs, and in any event the family courts do not ‘think’ in terms of ‘winners’ and ‘losers’.
Costs orders can, however, be made, even in proceedings relating to children. The recent case of S v S, an application by a father to relocate with his two sons to Switzerland, in which Mr Justice Peter Jackson took the very unusual step of awarding costs against the father, despite the fact that he had succeeded with his application, because the father’s conduct had substantially contributed to the way in which the dispute, which cost the family some £938,000, had to be resolved.
Another children judgment was published on Friday in which a High Court judge made a costs order: E-R (Child Arrangements Order No.2 : Costs). This was in the case of a child, ‘T’, now eight years old, who sadly lost her mother to cancer in 2015. In April 2016 Mr Justice Cobb in the High Court ruled that T should live with family friends, ‘Mr and Mrs H’, with whom T and her mother had spent much time since T’s parents separated in 2011, including living with them for most of the last year of T’s mother’s life, rather than live with T’s father and new partner, Miss B.
In his judgment Mr Justice Cobb made detailed arrangements for contact between T and her father. Unfortunately, those arrangements were largely ignored, and very soon breached, by the father and Miss B, with the result that in September 2016 Mrs H felt compelled to issue a fresh application seeking the court’s further directions, specifically seeking further definition of the time which T was to spend with her father and Miss B. That application was dealt with by Mr Justice Cobb in September this year, when he varied the child arrangements order he made in April 2016, including making detailed contact arrangements, in the obvious hope that those arrangements would now be adhered to.
But that was not the end of the matter. At the hearing in September Mrs H made an application that the father and Miss B should pay, or substantially contribute to, her costs. She contended that she had been put to considerable expense in issuing a further application in relation to T, so soon after the conclusion of the previous litigation, solely, she maintained, because the father and Miss B failed to comply with the order made in April 2016. Her costs were said to exceed £35,000. More significantly, perhaps, she contended that the father’s conduct had been to the detriment of T.
Mr Justice Cobb considered the father’s conduct following the order made in April 2016 (see paragraph 10 of his judgment) and concluded that he “had little interest or motive” in complying with the order, which he had deliberately breached. His conduct was such that he should contribute towards Mrs H’s costs. He therefore directed that the father should contribute the sum of £15,000 towards those costs.
However, he also said this:
“One of the most disturbing features of the evidence at this hearing is that it is said that “T is more damaged now than when her mother died” as a result of the unpredictability of contact; my view was and is that “[r]egrettably, the father and Miss B have to take significant responsibility for this.” This damage to T is the greatest ‘cost’ of these proceedings – more than any financial penalty.”
As Mr Justice Cobb pointed out this was not, in fact, the first time that he had made a costs order against the father. At the hearing in April 2016 he ordered the father to make a contribution to the cost of the Mr and Mrs H, in the sum of £10,000. That award, as he pointed out at the time, was not made because Mr and Mrs H had succeeded and the father had not. Rather, it was made because the father behaved unreasonably in the litigation, with the result that Mr and Mrs H incurred unnecessary costs.
Costs orders in children proceedings are, as Mr Justice Cobb mentioned, exceptional. However, this case is a reminder that unreasonable conduct in litigation relating to children can be penalised with an order for costs. More than that, though, it is a reminder of the cost of such behaviour to the children involved.
You can read the full judgment here.