H (Children), Re

Where costs are sought against a publicly funded party in children proceedings, the trial judge determines whether the funded litigant’s conduct justifies an order in principle and, if so, the appropriate proportion. The judge may quantify the liability only if the necessary financial information is available. The costs judge determines the amount payable by the funded party and the amount, if any, payable by the Legal Services Commission. An appellate court should be slow to interfere with a trial judge’s assessment of culpable conduct based on a lengthy hearing and direct observation of the parties.

Wardship proceedings concerned two children whose father had died. The children had been cared for by their paternal family, while their mother lived in Belgium. The mother sought responsibility for the children, and the paternal grandmother brought competing applications under the Children Act.

The High Court ordered that the children move to Belgium and later ordered the grandmother to pay part of the mother’s costs for two interlocutory hearings, 75 per cent of the costs of the final hearing, and all the costs of the costs hearing. Permission to appeal was granted on the interlocutory costs orders and on the costs-hearing order, but refused on the 75 per cent order. The Court of Appeal considered whether permission should be extended and whether the costs orders should stand.

1. Appeal dismissed. Lord Justice Thorpe delivered the judgment, with Mr Justice Bodey agreeing. The application for permission to appeal was refused, and the appeal itself was dismissed with costs.
2. Where costs are sought against a publicly funded party, the trial judge decides whether the party’s conduct warrants an order for costs in principle and, if so, the proportion payable. The judge may assess the liability in money if the necessary information is available. The costs judge determines the amount, if any, payable by the funded party and the amount payable by the Legal Services Commission.
3. The parties had initially advanced their arguments on the basis that the court was considering costs against the Commission. The court accepted that the relevant framework was instead section 11(1) of the Access to Justice Act 1999. The grandmother’s challenge to the exercise of the judge’s discretion was late and was not properly set out in the notice of appeal. Nevertheless, it was considered because refusing to hear it would have made the listing futile.
4. The trial judge had heard the case over four days and had observed the grandmother and assessed her responsibility and personality. Her findings included that the family had failed to seek out the children’s remaining natural parent, that the grandmother had been difficult about contact, and that the grandmother and her family had influenced the children’s hostile reaction to their mother. The Court of Appeal held that it could not properly differ from the judge’s broad conclusion that the grandmother’s conduct exceeded what was acceptable in ordinary children litigation.
5. The order’s financial effect was left to the costs judge, including the interaction between the grandmother’s liability and any sum payable by the Legal Services Commission.

1. Court of Appeal (Civil Division), [2002] EWCA Civ 1625: Permission to appeal was refused and the appeal was dismissed with costs. The costs order was made pursuant to section 11 of the Access to Justice Act 1999.
2. High Court, Family Division: Mrs Justice Hogg ordered that the children move to Belgium to live permanently with their mother. At a later costs hearing she ordered the paternal grandmother to pay 50 per cent of the mother’s costs for two October hearings, 75 per cent of the mother’s costs of the final hearing, and all costs of the costs hearing.