R & Anor v A

Withdrawal of family proceedings does not amount to an adjudication on the issues. It brings the proceedings to an end and the withdrawal order cannot be appealed. Permission to withdraw should ordinarily be granted where the respondent suffers no prejudice.

Costs remain within the court’s broad discretion under the Family Procedure Rules 2010. Although costs orders are unusual in proceedings concerning children, they may be just where the applicant’s conduct has unnecessarily caused the respondent to defend irrelevant or serious allegations and proceedings that should not have been brought.

The applicants, the child’s maternal aunt and her husband, commenced proceedings seeking orders concerning residence, contact, removal from the jurisdiction and parental responsibility. The child’s father opposed the applications and sought dismissal and an order for his costs.

Following procedural steps concerning jurisdiction, forum and leave to apply, the applicants decided to withdraw. The issues were whether the applications should be withdrawn or dismissed, and whether the applicants should pay the respondent’s costs.

1. Withdrawal. The applicants were permitted to withdraw their applications under rule 29.4 of the Family Procedure Rules 2010. Dismissal would imply adjudication on the issues, whereas withdrawal caused the proceedings to cease to exist. The withdrawal order could not be appealed. Any future proceedings would depend on jurisdiction and merits.
2. The court reserved to itself any future application concerning the child, including any attempt to revive the proceedings. Any further application by the applicants concerning the child had to disclose the existence of these proceedings and the orders made.
3. Costs. Under rule 28.1 of the Family Procedure Rules 2010, the court had a broad discretion to make such order as was just. The unusual nature of costs orders in family proceedings concerning children did not prevent an order where the circumstances justified it.
4. The applicants’ conduct provided a sufficient basis for a costs order. They had advanced serious and unpleasant allegations, much of which was irrelevant to the child’s welfare and unsupported or hearsay, requiring the father to defend both the proceedings and himself. The applicants should not have instituted the proceedings and had used the child’s temporary presence in England to do so.
5. There had been no adjudication, so the court expressed no view on forum conveniens. The applicants were ordered to pay the respondent’s costs of the applications on the standard basis, subject to detailed assessment if not agreed. No summary assessment or proportionate allocation was made.