J (Children)

Costs are generally unusual in private children proceedings because the process is welfare-focused and the court wishes to encourage participation and co-operation. That approach does not prevent an order where a party’s conduct is reprehensible or falls outside the range of reasonable behaviour. A bespoke fact-finding hearing devoted exclusively to serious allegations may be treated as a separate costs compartment from the wider contact application. The discretion is not confined to cases involving irrational conduct. The court must consider the nature and seriousness of the allegations, admissions made, findings proved beyond those admissions, and allegations not proved. A proportionate order may follow. Here, the proper order was payment of two-thirds of the costs of the fact-finding hearing.

The father applied for contact with the two children. The mother alleged a history of domestic violence, including violence towards a child and violence in the children’s presence. A district judge directed a bespoke fact-finding hearing and found 14 of 20 allegations proved, but made no order as to costs. The mother’s appeal was dismissed by a circuit judge, who ordered her to pay the father’s costs of that appeal. The mother appealed to the Court of Appeal, arguing that the fact-finding hearing and the successful allegations justified an order against the father. The central issue was how the costs discretion should be exercised where fact-finding formed part of contact proceedings but was separately directed and substantially successful.

1. Appeal allowed. The district judge had failed adequately to exercise the costs discretion. Saying only that the parties had a right to come to court did not address the relevant considerations. The circuit judge erred by failing to recognise that error and exercise the discretion herself.
2. It was unusual to order costs in proceedings under the Children Act 1989. The rationale was that children proceedings were partly inquisitorial, the child should be the only winner, and costs orders might discourage participation or parental co-operation. The general approach did not apply where conduct was reprehensible or a party’s stance was beyond what was reasonable. The court relied on London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569.
3. The separately directed fact-finding hearing was devoted exclusively to serious and relevant allegations of violence and misconduct. Its costs were therefore ring-fenced and distinguishable from the ordinary costs of competing proposals concerning a child’s future welfare. The court rejected the circuit judge’s refusal to treat the fact-finding issue separately.
4. The discretion was not limited to cases involving irrational conduct. Irrationality aptly described the parent’s conduct in Re T (Order for Costs) [2005] EWCA Civ 311, [2005] 2 FLR 681, but it was not a necessary precondition to a costs order. Nor did the judge need to determine whether the father’s denials resulted from mistake or failed memory.
5. A proper exercise of discretion required consideration of the nature of the inquiry, the seriousness and relevance of the allegations, the extent of admissions, the allegations proved beyond those admissions, and the allegations not proved. This was an unusual case, not an indication that costs should routinely follow findings of historical fact in children proceedings. Given the proved allegations, limited admissions and unproved allegations, the father was ordered to pay two-thirds of the mother’s costs of and incidental to the fact-finding hearing. The parties were to address separately the costs of the circuit judge appeal.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 1350, the mother’s appeal was allowed. The father was ordered to pay two-thirds of the costs of the fact-finding hearing.
• Wandsworth County Court, circuit judge: On 13 February 2009, Her Honour Judge Knowles dismissed the mother’s appeal against the district judge’s costs decision and ordered her to pay the father’s costs of that appeal.
• Wandsworth County Court, District Judge Wicks: On 19 March 2008, after the fact-finding hearing, the judge made no order as to costs.