R (A Minor)

In proceedings concerning children, the ordinary practice is to make no order as to costs, but that practice is flexible rather than absolute. Costs may be ordered in exceptional circumstances, including unreasonable conduct in the litigation or a substantial disparity in the parties’ means. A parent’s genuine but strongly held view about the child’s welfare should not be penalised merely because it fails. However, conduct which unreasonably involves the child in litigation may justify an order. Where the paying party is legally assisted, the court must separately assess under Legal Aid Act 1988, section 17(1), what amount is reasonable having regard to all the circumstances, including the parties’ resources and conduct.

The father appealed against the costs part of an order made by His Honour Judge Goldstein in the Bow County Court on 18 October 1994. Following a lengthy hearing about where the parties’ ten-year-old child should live, the judge ordered the father to pay the mother’s costs from his share of the matrimonial home equity.

Leave to appeal was granted by Lord Justice Thorpe. The appeal concerned both the form of the order against a legally aided party and whether an order for costs was justified in principle, given the established practice in children proceedings. The parties agreed that the amount payable had to be assessed under section 17(1). The remaining issue was whether the father’s conduct justified an order in principle.

1. The appeal succeeded in substance as to the form and timing of the costs order. Both Mrs Justice Hale and Lord Justice Staughton accepted that the court had not carried out the inquiry required by section 17(1) of the Legal Aid Act 1988. The question whether, and to what extent, the father should pay had to be deferred until his financial resources and those of the other parties could be assessed, conveniently with the ancillary relief proceedings.

2. The ordinary practice in proceedings relating to children is to make no order as to costs, but this is an exception rather than a rigid rule. The court retains a discretion to order costs in suitable cases. The reasons for caution include avoiding deterrence of reasonable applications, preventing further damage to parental cooperation, and preserving funds available for the family and child. Those considerations do not create an absolute bar.

3. Unreasonable conduct in the litigation may justify a costs order. The court must distinguish a parent’s unreasonable attitude about the child from unreasonable conduct in the litigation itself. A party’s good faith does not prevent conduct from being objectively unreasonable. The father had involved the child in claims with little real prospect of success, arranged an unauthorised assessment by an unqualified psychologist, and involved the child in further litigation-related activity. This went beyond the ordinary attitude of a concerned parent.

4. The first-instance judge was best placed to assess the conduct and exercise the discretion. There was no sufficient basis for appellate interference with the conclusion that a costs order was justified in principle.

The reasons state that the appeal was allowed in part. The final order is recorded as “Appeal dismissed”, with the appellant ordered to pay one third of the respondent’s costs subject to the section 17(1) determination.

• Court of Appeal (Civil Division): On 5 December 1996, in [1996] EWCA Civ 1120, the court upheld the costs order in principle but required the amount payable by the legally aided father to be determined under section 17(1). The reasons state that the appeal was allowed in part, although the formal order records the appeal as dismissed.
• Bow County Court: His Honour Judge Goldstein ordered the father to pay the mother’s costs from his share of the matrimonial home equity after proceedings concerning the child’s residence.