SB v MB (Costs)

In Hague Convention proceedings, the usual order is not automatically no order as to costs. The court retains a broad discretion and must consider all the circumstances, including the parties’ conduct, the reasonableness of pursuing issues, and any disparity of means. An adverse order may be appropriate where conduct has been unreasonable or reprehensible, but failure alone does not justify such an order. The court should also consider whether the order is likely to intensify parental hostility to the child’s detriment. Costs may be awarded as a proportion of the other party’s costs and may be subject to detailed assessment where summary assessment would be inappropriate.

The court had previously determined that the child was habitually resident in the United Kingdom, rejecting the father’s case that she was habitually resident in Israel. Permission to appeal was refused, and an appeal to the Court of Appeal was subsequently discontinued. The mother then applied for her costs of the Hague Convention proceedings.

The issue was whether, and to what extent, the father should pay the mother’s costs, having regard to the parties’ conduct, the merits of the application, their means, and the potential impact of a costs order on future relations between the parents.

1. The High Court had jurisdiction to award costs in first-instance applications under the 1980 Hague Convention. The principles identified in EC-L v DM (Child Abduction: costs) [2005] EWHC 588 (Fam), concerning the exercise of that jurisdiction, remained applicable under the Family Procedure Rules 2010.

2. There was no presumption that the order should be no order as to costs. The proper approach was to inquire into the merits and consider the circumstances of the case. Unreasonable or reprehensible conduct could justify an adverse order, although merely losing the application did not.

3. The father’s conduct went beyond an unsuccessful stance. He had deliberately obscured the factual issue of habitual residence and pursued the litigation as a campaign to obtain the outcome he wanted. His conduct, rather than his personality, was relevant. Disparity of means did not independently justify an order, and the parallel Israeli proceedings were relevant only insofar as they illuminated his approach to litigation concerning the child.

4. The mother’s reliance on several alternative defences before narrowing the case to habitual residence had caused delay and unnecessary expense. Such opportunistic pleading was deprecated in summary Hague Convention proceedings.

5. The court ordered the father to pay 50 per cent of the mother’s costs of responding to the application, subject to detailed assessment on the standard basis. Summary assessment was inappropriate because the hearing exceeded one day and the court could not properly assess the individual elements of the bill. The court also noted the desirability of a robust approach to costs, as discussed in Naylor v Monahan and Churchill Insurance [2011] EWHC 1412 (QB), but held that this did not remove the need for detailed assessment in the circumstances.

The judgment concerned costs following an earlier first-instance determination that the child was habitually resident in the United Kingdom. Permission to appeal was refused and the subsequent appeal was discontinued. No separate appellate decision is stated.