MG & JG v JF

An order for costs funding in private-law children proceedings is distinct from an order for costs. The former may be made under Schedule 1 to the Children Act 1989 even where the respondent has behaved neither reprehensibly nor unreasonably. The court must consider the subject matter of the proceedings, the reasonableness of the applicant’s stance, the benefits of competent representation and equality of arms, and whether the applicant can reasonably obtain appropriate legal services from another source. Historic unpaid costs may be funded where non-payment would prevent future representation. A modest home or savings should not ordinarily be required to be exhausted, although the assessment is fact-specific.

MG and JG, who were involved in complex section 8 proceedings concerning a child, applied under Schedule 1 to the Children Act 1989 for costs funding from JF. The proceedings involved disputed contact, education, vaccination, expert evidence and therapeutic intervention. Legal aid was unavailable, and both applicants had incurred substantial unpaid legal and expert fees despite limited resources. JF had substantially greater means but was not alleged to have acted reprehensibly or unreasonably. The court therefore had to determine whether costs funding was available in principle and, if so, the appropriate contributions by the parties and by the child’s legal aid certificate.

1. Costs funding. The application was for an interim costs allowance, not an order for costs. The restriction identified in Re T (Children) [2012] UKSC 36, namely that costs orders in children cases generally require reprehensible behaviour or an unreasonable stance, did not prevent an order for costs funding.
2. Applying the principles in Rubin v Rubin [2014] EWHC 611 (Fam), CF v KM [2011] 1 FLR 208 and Currey v Currey (No 2) [2006] EWCA Civ 1338, the court considered the subject matter of the proceedings, the reasonableness of the applicants’ stance, the advantages of competent representation and equality of arms, and whether payment was necessary to obtain appropriate legal services.
3. The court could not make an order unless satisfied that, without payment, the applicants would not reasonably be able to obtain appropriate legal services. Historic unpaid costs could be included where their payment was necessary to secure future representation. The court would ordinarily be unlikely to require sale or charging of a home, or depletion of modest savings, although the assessment remained fact-sensitive.
4. Self-representation was unrealistic given the factual and legal complexity. JF was the only realistic source of funding, notwithstanding the absence of reprehensible or unreasonable conduct. JF was ordered to pay 80% of MG’s claim (£12,202) and 80% of JG’s claim (£8,394), together with 80% of future therapeutic costs up to the interim hearing. Each applicant was to pay 10% of those future therapeutic costs.
5. Further reports by the educational psychologist and psychologist were to be paid from JFG’s legal aid certificate. Following JG v The Lord Chancellor & Ors [2014] EWCA Civ 656, the expert-cost rules established a default position only; they did not prevent the court directing a different allocation. On the facts, it was just and reasonable for the child to bear those costs because the reports were primarily for his benefit.