B v A

Without notice relief, particularly a Tipstaff order, requires caution, rigorous scrutiny, full and fair disclosure, properly sourced evidence, prompt updating, and strict compliance with undertakings. Such orders should be made only on clear evidence and for defined periods; open-ended continuation is generally inappropriate. The Hague Convention and the Child Abduction and Custody Act 1985 do not confer jurisdiction to order the return of a child who is neither present nor habitually resident in England and Wales. A wasted costs order may be made against legal representatives where failures in presenting a without notice application amount to negligence, cause unnecessary costs, and make such an order just. The absence of a costs order against the represented party is not a prerequisite.

The father commenced without notice proceedings seeking the return of the parties’ child to the United States under the Hague Convention and the Child Abduction and Custody Act 1985. A location order was granted and repeatedly continued, ultimately on an open-ended basis, although the mother and child had not been located and the evidence and jurisdictional position were not properly updated.

The mother was later detained when she entered England without the child. The father eventually withdrew or sought dismissal of the return application, leaving applications for costs against him and for wasted costs against his solicitors. The central issues were the jurisdiction to order return of a child abroad, the propriety of the without notice process, and whether the solicitors’ conduct justified a wasted costs order.

1. Without notice relief. The applicant and advisers owed a high duty to act candidly and fairly. They had to disclose relevant facts and law, identify the sources of information and belief, provide a balanced account of the strengths and weaknesses of the case, explain why notice was not given, and address service, return dates, proportionality and the practical consequences of the order. Evidence had to be updated when the factual basis changed. Undertakings had to be complied with strictly and the evidential material placed before the court recorded fully.
2. Tipstaff orders are powerful measures capable of restricting movement and contributing to deprivation of liberty. They should be granted and continued only with caution, on clear and particularised evidence, and for defined periods. The December 2011 continuation of the location order, made without evidence or argument on jurisdiction, prospects or discretion, was a serious breach of those principles.
3. Jurisdiction. Article 12 of the Hague Convention required the child to be in the requested Contracting State when proceedings were commenced. The Convention and the Child Abduction and Custody Act 1985 could not confer jurisdiction over a child absent from, and not habitually resident in, England and Wales. No alternative inherent or wardship jurisdiction existed on these facts.
4. The application for costs against the father was refused. Although he had a good arguable case concerning the alleged abduction and the court recognised the distress caused by the separation, the conduct of the proceedings was substantially attributable to advisers and reflected widespread professional and judicial failures. The conduct was therefore not categorised as reprehensible or beyond the band of what was reasonable.
5. Under Ridehalgh v Horsefield [1994] 2 FLR 194, negligence in the relevant untechnical sense could support a wasted costs order without a prior costs order against the client. The solicitors’ failures were negligent, caused the mother to incur costs following enforcement of the open-ended order, and made an order just, subject to reductions for the circumstances and unsuccessful parts of the claim. A wasted costs order of £18,000 including VAT was made.