C (Children), Re

Costs orders in private-law proceedings concerning children are unusual, but remain within the trial judge’s discretion. A judge may assess a parent’s reasonableness by reference to the atmosphere of the hearing, the parties’ reactions to proposals and the judge’s direct impression of their conduct. Such a finding need not be supported by detailed particulars. The costs enquiry must focus on the period and conduct relevant to the costs incurred. An appellate court should not interfere with an experienced judge’s discretionary conclusion unless clear or plain error is shown. Any liability should be confined to costs properly incurred and assessed within the relevant period.

The husband appealed from an order made by His Honour Judge Walker in contested proceedings concerning the residence and contact arrangements for two children. The husband sought shared parenting, a joint residence order or an equal division of the children’s time. The wife sought a residence order in her favour and defined contact for the husband.

The trial judge rejected the husband’s principal proposals, accepted the wife’s proposed arrangements with an enlargement of weekend contact, and ordered the husband to pay one quarter of the wife’s assessed costs. The judge described the husband’s application as entirely unsuccessful and referred to an unreasonable approach. The central issues were whether that description was materially wrong, whether the judge could rely on a general impression of unreasonableness, and what period of conduct was relevant to the costs order.

1. Appeal dismissed with costs. The order requiring the husband to pay one quarter of the wife’s costs was just within the discretionary ambit of the trial judge.
2. The statement that the husband had been entirely unsuccessful was plainly inaccurate. His pursuit of the application had secured contact more extensive than the wife’s original proposal. That error had to be assessed against the litigation as a whole and did not, in the circumstances, require the costs order to be set aside.
3. For the purposes of the costs application, the judge should concentrate on the reasonableness of the husband’s approach during the period beginning with the instruction of solicitors on 25 January 2001 and ending with judgment on 2 February 2001. The earlier chronology of applications was not relevant to costs which originated in that late instruction.
4. A judge who has observed the parents over a contested hearing may rely substantially on the atmosphere of the case, the parties’ motivation and balance, and their reactions to proposals made in evidence or during the hearing. A finding of unreasonableness need not be supported by detailed particulars. Judges should, however, use restrained language so that the parties’ antagonism is not unnecessarily aggravated.
5. Although costs orders are unusual in private-law Children Act proceedings, the ordinary principle of appellate restraint applies. This court should not interfere with the discretionary conclusion of an experienced Circuit Judge unless plain error is demonstrated.
6. The costs liability should expressly be confined to one quarter of costs properly charged and assessed for the period from 25 January to 2 February 2001. The judgment sufficiently clarified that limitation, so it was unnecessary formally to rewrite the order.

• Court of Appeal (Civil Division): dismissed the husband’s appeal against the costs order and awarded costs of the appeal.
• Wandsworth County Court: following contested residence and contact proceedings, ordered the husband to pay one quarter of the wife’s assessed costs.