B v B

Where children are wrongfully retained abroad, an English court may award costs of domestic proceedings seeking their return. It has no jurisdiction under Article 26 of the Hague Convention to award costs incurred in Convention proceedings before the court of the requested state, including travel expenses, unless it was that Convention court which made the return order. Domestic proceedings and Convention proceedings must therefore be kept distinct. A quantified costs order should be supported by a schedule justifying the figures, particularly where the paying party is a litigant in person. Confused terminology cannot enlarge jurisdiction. A conservative payment on account may nevertheless be ordered where entitlement to some domestic costs is clear.

The mother appealed, with permission limited to costs, against an order made by HHJ Halbert in the Family Court at Chester on 23 June 2014. The order required her to pay the father’s legal and incidental costs of and occasioned by the Hague Convention proceedings, together with £12,500 on account.

The dispute followed her retention in Germany of two children who had lived in England all their lives, contrary to return orders made in England and Germany. The English proceedings included the father’s application dated 6 September 2012, heard on 10 September 2012, for the children’s immediate return. Separate Convention proceedings took place in Germany. The central issues were whether the English court had jurisdiction under Article 26 of the Hague Convention to award the German Convention costs and travel expenses, and what domestic costs order should replace the defective order.

1. Disposition. The appeal was allowed against the costs order as worded. The order improperly conflated two different sets of proceedings and could not stand.
2. Separate proceedings. The English application of 6 September 2012, heard on 10 September 2012, was domestic litigation in which the English court had jurisdiction to award costs. Given the mother’s flagrant and persistent breaches of orders in both jurisdictions, an order for the father’s costs of and incidental to that application was within the judge’s discretion. The Convention proceedings properly so called took place in Germany. Their costs, and the father’s travel expenses connected with them, were matters exclusively for the German court.
3. Article 26. Article 26 of the Hague Convention confers jurisdiction to order necessary expenses, including travel expenses, on the court which makes a return order under the Convention. The English order was headed as a specific issue and residence order under section 8 of the Children Act 1989. It was not a Convention return order and could not trigger Article 26 jurisdiction. Treating it as a complementary Convention order would risk multiple costs applications, double recovery and wasted costs.
4. Procedure and quantification. A separate paper application for costs was unnecessary because the father’s intention to claim costs had been flagged in writing and the hearing had been identified as including costs submissions. The mother had not been ambushed. There was, however, substance in her complaint that the figures were inconsistent and unsupported by a costs schedule. A quantified costs order requires a schedule justifying the figures so that the judge can make a reasoned assessment, particularly where the paying party is unrepresented.
5. Substitute order. The court substituted an order that the mother pay the father’s costs of and incidental to the English application for return. It ordered £3,000 on account, rather than £12,500, as a conservative figure reflecting the clear entitlement to some English legal costs. Costs of the appeal were left for short written submissions if not agreed, with no order as to costs indicated provisionally (see paras [5]-[16]).

• Court of Appeal (Civil Division): King LJ refused permission on the substantive grounds in a judgment dated 24 October 2014 but granted permission on costs on 21 May 2015. The present court allowed the appeal against the costs order as worded and substituted a narrower costs order: [2015] EWCA Civ 1166.
• High Court of Justice, Family Court at Chester: HHJ Halbert dismissed the mother’s applications concerning where the children should live and ordered her to pay the father’s legal and incidental costs of and occasioned by the Hague Convention proceedings, with £12,500 payable on account, on 23 June 2014.