M (A Child), Re

In private-law children proceedings, the usual position is that each party bears their own costs. A costs order may nevertheless be made where a party has acted unreasonably in the litigation. The court must identify that unreasonable conduct and explain clearly, preferably in the costs order, why it is departing from the normal practice. A parent is not acting unreasonably merely by asking the judge to determine a residence dispute despite a strongly adverse welfare-officer recommendation. The relevant assessment concerns the conduct of the litigation, including any unfounded allegations and the preparation of unnecessary or burdensome material.

The mother sought permission to appeal against an order transferring the residence of her ten-year-old daughter to the father and requiring her to pay half his costs. Permission to appeal against the residence decision had already been refused, and the transfer had taken place. The renewed application concerned only the costs order.

The county court judge had relied on the CAFCAS report and evidence, but had given only brief reasons for ordering costs. The central issue was whether the judgment contained a sufficient finding of unreasonable conduct to justify departing from the usual costs position in private-law children proceedings.

1. The application for permission to appeal was refused. The residence decision was no longer challenged, and the issue was whether the costs order was arguably erroneous.
2. The governing principle was established in Re G (Costs: Child Case) [1999] 2 FLR 250. Although costs orders are unusual in family cases, they may be made where a party has behaved unreasonably in the litigation. A greater degree of generosity may be appropriate for a litigant in person. Where the court makes the unusual order, the reason for departing from normal practice should be clear from the transcript, preferably from the costs order.
3. It would not, without more, be unreasonable for a parent facing the transfer of a child's residence to place the issue before the judge despite a strong welfare-officer recommendation. Such cases are decided by judges, not welfare officers.
4. The county court judge had, however, made a clear finding that the mother had allowed her wishes to distort her recollection and had advanced unfounded allegations, including an allegation which she must have known was untrue. That finding covered both her earlier conduct and her subsequent preparation of an extensive bundle of additional material.
5. Read together, the principal judgment and the costs ruling contained sufficient material to support the finding of unreasonable conduct and the exercise of the costs discretion, despite the ruling's lack of clarity. The costs were to be assessed by a costs judge if not agreed.

• Court of Appeal (Civil Division): Permission to appeal against the residence order was refused. The renewed application concerning the costs order was refused after oral argument; costs were to be assessed if not agreed.
• Maidstone County Court: His Honour Judge Hargrove QC transferred the child's residence from mother to father and ordered the mother to pay half the father's costs.