L (Costs of Children Proceedings)

In children’s proceedings, costs do not ordinarily follow the event. An adverse costs order is exceptional and ordinarily requires unreasonable or reprehensible conduct of the litigation. Any unreasonableness must concern the litigation, rather than the parent’s conduct relating to the child’s welfare. A party facing such an order must receive clear notice that costs will be sought on that basis and a fair opportunity to make representations. Orders affecting children’s trust funds should not be made without proper notice and evidence concerning the trusts, transfer formalities and the children’s best interests.

The mother sought an extension of time, permission to appeal and, if permitted, an appeal against an order made by HHJ Meston QC in the Bournemouth County Court on 25 March 2013. The order, made in her absence, transferred responsibility for the children’s trust funds to the father and required the mother to pay the father’s costs of proceedings concerning the children since 15 May 2012.

The mother had accepted that both children would reside with the father and had not sought defined contact arrangements after significant changes in the family circumstances and receipt of the guardian’s report. The trust funds had previously been transferred into the mother’s name under an earlier order. The central issues were whether the trust-fund directions could properly be made without notice or evidence, and whether the costs order was procedurally fair and substantively justified.

The court granted the extension of time and permission to appeal. It allowed the appeal against paragraphs 5, 6 and 9 of the order.

1. Trust funds. The directions transferring responsibility for the children’s trust funds to the father had been made without a formal application, proper notice or adequate evidence. The court had not been informed of the constitution of the trusts, the necessary transfer formalities, their previous management, or why transfer to the father would serve the children’s best interests. The directions were therefore set aside. Any future application concerning management of the funds had to be made by proper notice.
2. Notice of costs. Although the order recited that the mother had been notified of the hearing and of the application for costs, she had not been clearly informed that the father would seek an adverse order based on alleged unreasonable conduct of the litigation. In the circumstances, the judge should have adjourned the costs issue or given the mother express liberty to apply to vary or discharge any order. The lack of a fair opportunity to make representations independently justified allowing the appeal.
3. Applicable principles. Rule 28(2)(1) of the Family Procedure Rules 2010 disapplies the general costs rule in rule 44.2(2) of the Civil Procedure Rules 1998. Although rule 28.1 preserves a discretion to make an order where just, costs against a parent in children’s proceedings are ordinarily confined to exceptional cases involving unreasonable or reprehensible litigation conduct. The court applied the principles in Re T (Order for costs) [2005] 2 FLR 681 and Re T [2012] UKSC 36.
4. Application. The mother’s conduct was not unreasonable or reprehensible. Her application had been permitted in changed circumstances, the issue of residence had been finely balanced, and she withdrew her application promptly after receiving the guardian’s report while seeking to avoid a further hearing. Difficulties in her parenting or the absence of current contact did not justify imposing the litigation costs on her.

Paragraph 9 was set aside and replaced by an order that there should be no order as to the parties’ costs of the reserved and other costs of the applications concerning the children since 15 May 2012.

1. Court of Appeal (Civil Division). On 5 November 2014, the court granted an extension of time and permission to appeal, allowed the appeal and set aside paragraphs 5, 6 and 9 of the order.
2. Bournemouth County Court. HHJ Meston QC made the order dated 25 March 2013 in the mother’s absence, directing the transfer of responsibility for the children’s trust funds and ordering the mother to pay the father’s costs.