T (a child), Re

Costs orders in private-law children proceedings remain exceptional. They may nevertheless be made where a parent has acted unreasonably in the conduct of the litigation, as distinct from pursuing a genuine welfare disagreement.

Where careful fact-finding establishes that contact is safe, beneficial and should occur, a resident parent cannot render continuing obstruction reasonable merely by relying on irrational personal anxieties. The court may order that parent to pay costs caused by unnecessary litigation, including the defence of unfounded allegations. The discretion remains fact-sensitive and should not deter a parent from advancing a reasonable opposition to contact based on a proper assessment of the child’s interests.

The mother appealed against an order of Her Honour Judge Kushner QC in Manchester County Court requiring her to pay the father’s costs of three fact-finding hearings and of his subsequent costs application.

The underlying proceedings concerned contact with, and ultimately residence of, the parties’ son. Earlier findings had rejected the mother’s allegations concerning the father and established that the child had a good relationship with him. The mother later withdrew from an agreed contact arrangement and, after further allegations of sexual abuse, contact was again suspended and further fact-finding was required.

Permission to appeal the later residence order was refused. The issue before the Court of Appeal was whether the judge had correctly found the mother’s litigation conduct unreasonable and had properly exercised her discretion to make this exceptional costs order.

1. The appeal was dismissed. The judge’s costs orders were a proper exercise of discretion.
2. Costs orders between parents in children proceedings are exceptional because they may increase hostility and harm co-operation. The relevant principles were well established and correctly summarised by the judge. An exceptional order may be justified by unreasonable conduct in the litigation, rather than by a parent’s position on the child’s welfare alone.
3. Following careful findings that the child had a good relationship with his father, that contact was in his interests, and that there was no objective basis for the mother’s concerns, the mother had no proper basis for abandoning the agreed contact arrangements. Her personal anxieties did not place her conduct within the range of reasonable conduct. Her conduct caused unnecessary litigation.
4. The same conclusion applied to the sexual-abuse allegations. The judge was entitled to find that the mother and maternal grandmother had given innocent remarks by the child an unreasonable and sinister interpretation. The mother’s anxious personality and genuine belief in the allegations did not make her suspension of contact and persistence to a hearing reasonable.
5. The father had properly confined his claim to hearings caused by the unreasonable allegations and obstruction, rather than seeking costs for legitimate welfare disagreements. Having correctly directed herself as to principle, the judge could consider fairness in all the circumstances. She was entitled to regard it as unjust for the father to bear the costs of defending wholly unwarranted allegations. Detailed assessment, rather than summary assessment, was also appropriate.
6. The decision does not deter a resident parent from advancing a reasonable, genuinely child-focused opposition to contact. It confirms that unreasonable frustration of contact may properly attract a costs order.

• Court of Appeal (Civil Division): dismissed the mother’s appeal against the costs order: [2005] EWCA Civ 311.
• Manchester County Court: Her Honour Judge Kushner QC ordered the mother to pay the father’s costs of specified fact-finding hearings and the costs application on 9 June 2004.
• Manchester County Court: the judge had earlier made a residence order in the father’s favour on 17 February 2004; permission to appeal that order was refused by Black J on 5 November 2004.