N (A Child), Re

In children proceedings, unreasonable litigation conduct may justify an adverse costs order, but it does not require one. The court must exercise a broad discretion having regard to all the circumstances, including the usual reluctance to make costs orders where this may damage parental relations and the child’s welfare. A litigant seeking permission to appeal must identify the proposed grounds sufficiently to enable the first-instance judge to assess whether the appeal has a real prospect of success or raises another compelling reason. A bare request for permission, without grounds or reasons, may properly be refused.

The judgment concerned consequential issues arising from earlier judgments in the same proceedings concerning disclosure of family-court documents to the General Medical Council and applications relating to a consent order. The court considered costs sought by the father and mother, applications by the mother and guardian under section 91(14) of the Children Act 1989, and applications by both parents for permission to appeal.

The central questions were whether the parties’ conduct justified costs orders, whether the section 91(14) applications should await any appeal, and whether the proposed appeals satisfied the statutory permission threshold.

1. Costs in children proceedings. The general rule that costs follow the event did not apply because FPR rule 10.27(1)(b) disapplied CPR 44.3(2). The ordinary practice of making no order as to costs remains subject to exceptions, including unreasonable conduct of the litigation.
2. Unreasonable conduct opens the door to an adverse costs order but does not make such an order inevitable. The court retains a broad discretion and must consider all the circumstances. Relevant considerations include the risk that a costs order will intensify parental conflict and thereby harm the child. Despite finding that the father’s approach was unreasonable in parts and excessive in scale, the court made no order as to costs for either the section 8 issues or the disclosure issue.
3. The quantum of the father’s claimed advocacy costs was not objectionable in the circumstances. The decisive issue was whether any costs order should be made, not the hourly rate or hours claimed.
4. The mother’s and guardian’s applications under section 91(14) of the Children Act 1989 were not to be delayed pending any appeal. They were directed to be listed on the first available date on or after 5 October 2009, with written cases and a timetable to be agreed.
5. Under CPR 52.3(6), permission to appeal could be given only if the appeal had a real prospect of success or there was another compelling reason for it to be heard. The father’s refusal to identify grounds or reasons prevented proper assessment and independently justified refusal of permission. The mother’s proposed challenges to the disclosure ruling were also considered to have no real prospect of success and did not disclose a compelling reason. Both applications for permission were refused.
6. The time for appealing was extended to 4 September 2009. The relevant part of the disclosure order was stayed initially to protect the mother’s proposed appeal.

Not stated in the judgment.