Strange how things happen sometimes. I wrote here yesterday about the issue of costs orders made against parties in proceedings concerning arrangements for children, with particular reference to a costs order made against a father. By pure coincidence, a couple of hours after writing that post I came across a judgment from a case back in 2014, in which a father appealed against a costs order made against him in proceedings concerning arrangements for his son. As the appeal was successful, I thought it might provide some balance to my post yesterday.
The case was K (A child – Appeal against a costs order within private law proceedings) (you can probably guess why it caught my eye). It concerned a child born in 2006. His parents separated in 2008. He remained living with his mother, and having contact with his father. There were various issues between the parties, but the relevant proceedings arose after the mother moved with the boy from Milton Keynes to Kent in 2013, thereby disrupting the contact arrangements.
Both parents applied for residence orders and the court ordered a Cafcass report. The Cafcass officer recommended that the boy continue to live with his mother, and that the father should have contact on alternate weekends. The father, who was not represented, was not prepared to accept the recommendation and the matter therefore proceeded to a contested hearing before the magistrates’ court. At the end of the first day of the hearing the justices asked the father if he wished to continue with the case. He indicated that he did, and the hearing then proceeded to a second day. On the second day the magistrates handed down their decision, which was in line with the recommendations of the Cafcass officer.
At the end of the hearing the mother’s solicitor made an application for costs against the father. It was submitted that the amount of the costs came to £5,155.80. The magistrates made an order for costs against the father in that sum, essentially “because of Father’s tenacity in pursuing a case which had little merit and which he could have discontinued after seeing the CAFCASS report.” The father appealed against that decision.
The appeal was heard by Her Honour Judge Brown in the Milton Keynes County Court. As indicated, she allowed the appeal. There were a number of strands to her reasoning (and indeed to the mother’s arguments in favour of the costs order), but for the sake of brevity I will mention what I think is the most important point, relating to the father’s decision to proceed with the case, notwithstanding the recommendations of the Cafcass officer. Judge Brown quite rightly observed:
“In my judgment, if the courts were justified in making orders for costs against parents who continued with their litigation after receipt of the Cafcass reports, costs orders would be made in almost every Children Act case.”
She went on:
“My next concern is that the magistrates seem to have made the costs orders based on the father’s tenacity. In my judgment tenacity, if indeed that is what father has shown, is not in itself sufficient to make a costs order against Father. There was no criticism of this father in the reasons of the substantive application that would justify the making of a costs order and indeed the only comment made about father’s conduct was that he had acted “with the best of intentions.””
In other words, unlike in the case I referred to yesterday, the father had not conducted the case unreasonably, which is the primary reason why, exceptionally, a costs order may be made against a party in children proceedings. He had simply been tenacious, and he cannot be criticised for that.
For this and other reasons Judge Brown held that the costs award was wrong, if not perverse, given the finding that he had acted “with the best of intentions”. Accordingly, the appeal was allowed and the costs order was discharged. Judge Brown concluded with the following notable advice:
“In my judgment parties should be advised very clearly when they embark on seeking representation in private law proceedings is that it is unusual to recover costs in private law proceedings.”
The full report of the case can be found here.
Image by Howard Lake via Flickr