G (Children), Re

In family proceedings concerning children, costs do not normally follow the event. The family court nevertheless has jurisdiction to order one party to pay another party’s costs where that party has acted unreasonably in relation to the proceedings. This may include unreasonable conduct in commencing proceedings and, more importantly, in conducting them. Limited means do not remove the jurisdiction to make a costs order. Detailed assessment determines the reasonable amount, while enforcement is a separate question for a later court to decide on the facts then existing.

The father appealed against a costs order made by HHJ Waddicor in the Brighton County Court after long-running proceedings under the Children Act 1989, s 8. The judge had refused direct contact with the children, made a five-year order under s 91(14), and ordered the father to pay the mother’s publicly funded costs, subject to detailed assessment.

Permission to appeal was refused on the challenge to the substantive welfare orders. Permission was granted only on costs, including whether the judge had been entitled to make the order and whether she should have directed that it was not to be enforced without leave.

1. Appeal dismissed. Although costs do not normally follow the event in family proceedings, the family court has jurisdiction to order payment of costs where a party has acted unreasonably in relation to the proceedings. R v R (Costs: Child Case) [1997] 2 FLR 95 remained the leading authority, and the jurisdiction had been followed and endorsed, particularly in Re F (Family Proceedings: Costs) [2008] EWCA Civ 938.
2. HHJ Waddicor was entitled to find unreasonable conduct. She had found that the proceedings were unnecessary, that the father had used them to get at the mother and had abused the court process, and that his case had no merit. The Court of Appeal was bound to start from those unchallenged findings of fact and motivation, since the appeal was confined to costs.
3. The absence of a costs schedule did not invalidate the order. The requirement for detailed assessment would determine the reasonable level of costs and protect the father from an unreasonable bill. Enforcement was a separate issue for a subsequent court to determine on the facts then existing. A term that the order was not to be enforced without leave was not required merely because the father had limited means.

Sir Stanley Burnton agreed. The order was that the appeal be dismissed.

• Court of Appeal (Civil Division): Thorpe LJ refused permission to appeal generally on 25 April 2013, but granted permission solely in relation to costs. The appeal was dismissed.
• Brighton County Court: HHJ Waddicor refused direct contact, made a five-year order under s 91(14), and ordered the father to pay the mother’s costs, subject to detailed assessment.