It is very rare for a court dealing with a children case to make an order for costs. The normal rule is that no order for costs will be made. The court does, however, have the power to make costs orders, and will do so in cases where the conduct of a party has been ‘reprehensible or unreasonable’.
J (Children) was one such case. It involved what Lord Justice Peter Jackson called “a notorious child abduction”. The background was that in July 2018 two children, then aged five and three, were allowed to travel to the Ukraine with their mother for the purpose of a holiday, from which the mother promised to return them. They were not returned. The children remain in the Ukraine in breach of repeated orders of the High Court. The judge dealing with the case, Mr Justice Mostyn, found that the mother and her father, the children’s grandfather, who he described as being deeply complicit, had acted in concert to obtain the consent of the father and the approval of the court for the holiday, but that they had never intended to return the children. He made costs orders against both the mother and the grandfather.
The background for those costs orders was therefore, as Lord Justice Jackson said, “the grossest breach of trust perpetrated by individuals who appear to consider obedience to the law to be optional and disobedience affordable.”
To go into a little more detail, the permission for the holiday was contained in a consent order made in July 2018. When the children were kept, the father issued an application in August to enforce their return. Several orders were made for that purpose. In September he issued a further application seeking permission for the mother, her husband and the grandfather to be publicly named in connection with the case. That application was granted in January 2019. The judge ordered the mother to pay the father’s costs of these applications, and the grandfather to be jointly and severally liable for half of that liability.
In January the mother and grandfather applied for the redaction of earlier judgments, presumably to ‘anonymise’ them. Those applications were refused, when the judge ordered that the mother and the grandfather were to be jointly and severally liable for the costs of the father and of the media organisations involved.
The mother and the grandfather appealed from both costs orders. They put forward three broad grounds of appeal: firstly that the judge had no power to make any order for costs because of the terms of the order of July 2018; secondly, if that was not so, he took the wrong approach to making a costs order in a case concerning children; and thirdly, argued by the grandfather only, that he should not have been ordered to be jointly liable for the costs of the media.
Giving the leading judgment of the Court of Appeal Lord Justice Peter Jackson found as follows.
As to the first ground, the order of July 2018 included a provision whereby, before she took the children from the country, the mother deposit a £1 million security fund with her solicitors, such fund to be passed to the husband’s solicitors if she failed to return the children by the due date. The fund was passed to the husband’s solicitors. It was described as being
“for the sole purpose of discharging the father’s legal and other incidental costs of legal proceedings incurred by the father directly or by [his solicitors] on his behalf in securing the return of the children to this jurisdiction.”
The mother and grandfather argued that this covered the father’s costs, and therefore the court should not have made a costs order against them as well. Lord Justice Jackson did not accept this argument: the fund did not disable or suspend the normal powers of the court. As a simple matter of logic, he said, the fact that a fund can only be used to meet a specific purpose does not mean that the specific purpose can only be met by using the fund. No one was suggesting that the mother and grandfather should pay twice. The father could not enforce the costs order against any other asset belonging to them to the extent that he had already been reimbursed for the same sums from the fund. The first round of appeal was therefore without merit.
As to the second ground, this can be dealt with more quickly. Lord Justice Jackson found:
“…that there is nothing remotely surprising let alone extraordinary about the orders made in this case. Indeed, I would go so far as to say that I find it difficult to envisage any proper alternative. The costs were incurred in an attempt to recover a situation created by the flagrant flouting of a court order. The orders were not intended to penalize but to compensate. It was an obvious case for departure from the normal rule. That rule is intended to promote respectful cooperation between parents, something that the appellants have egregiously dishonoured.”
The third ground can also be dealt with quickly. It is correct that generally the media and/or interested parties are usually not subject of orders for costs in their favour or against them, on the basis that important issues of open justice should be considered in a non-partisan manner. However, here the grandfather had aided and abetted the abduction and retention of his grandchildren, and had deployed massive legal force in an unsuccessful attempt to prevent his own identification. In such circumstances, the judge’s decision to award the media their costs is one that could not be criticized.
Accordingly, the appeal was dismissed.
You can read the full judgment here.