O (A Child), Re

In children proceedings, an order dividing the cost of an expert’s useful report equally between the parties is a conventional exercise of discretion and will not be disturbed merely because a parent opposed the investigation or disliked its conclusions. Costs orders between parents remain unusual, but may be made where a party’s unreasonable conduct justifies them. A first-instance judge’s factual finding that a parent deliberately failed to attend a hearing, supported by the judge’s detailed review of the evidence and knowledge of the case, is ordinarily one with which an appellate court should not interfere. Financial difficulty does not prevent a costs order in principle.

The mother appealed against parts of HHJ Polden’s order of 28 January 2008 in protracted private children proceedings concerning contact and residence. She challenged an order dividing the costs of a psychologist’s reports and attendance equally between the mother, father and guardian, and an order requiring her to pay the father’s indemnity costs for a February 2006 hearing.

The father separately sought permission to appeal against the refusal to award him costs for a second February 2006 hearing, but did not attend. The central issues were whether the judge had properly exercised his discretion on the expert costs, whether the finding of unreasonable conduct justified a costs order, and whether the resulting orders should be disturbed on appeal.

1. The mother’s appeal was dismissed. The father’s application for permission to appeal concerning the second February 2006 hearing was also dismissed because he did not attend.
2. The equal division of the psychologist’s fees between the mother, father and guardian was a conventional order. The judge had found the expert’s evidence helpful. A parent’s opposition to the investigation, or disagreement with the report’s contents or conclusions, did not prevent that order. The order fell within the judge’s discretion and the Court of Appeal could not properly interfere.
3. Costs orders between parents in children proceedings are unusual. Nevertheless, the judge directed himself that such an order could be justified by unreasonable conduct. He considered the available correspondence, hearing material and evidence, and found that the mother had failed to attend the 21 February 2006 hearing because she was uncooperative rather than unwell.
4. That finding was a question of fact which was open to the judge. He knew the case, had observed the mother over an extended period, and had considered the material placed before him. Having made the finding, he was entitled to order costs. The indemnity basis was unusual, but the judge had recognised that and assessed the sum from the solicitors’ letter and schedule.
5. A lack of immediate funds does not prevent a costs order in principle where the order is otherwise appropriate. The appeal court therefore upheld the orders made on 28 January 2008.

• Court of Appeal (Civil Division): [2008] EWCA Civ 820. The mother’s appeal against HHJ Polden’s order of 28 January 2008 was dismissed. The father’s application for permission to appeal concerning costs for the hearing on 24 February 2006 was dismissed.
• Principal Registry of the Family Division: HHJ Polden made the challenged costs orders on 28 January 2008. The citation of that decision was not stated in the judgment.