E-R (Child Arrangements Order No.2 : Costs)

In family proceedings concerning a child, costs do not ordinarily follow the event. A costs order is exceptional and requires litigation or conduct that is unreasonable or reprehensible. Deliberate breach of a child arrangements order, deception of the other parent and manipulation of the child may satisfy that threshold. The court must still exercise its discretion proportionately, taking account of relevant matters including illness, means, representation and the effect of enforcement on future compliance with the child arrangements order. Lack of legal representation may justify latitude for minor defaults, but does not excuse conduct which the litigant plainly understood to be wrong.

The court had previously made child arrangements orders concerning T, aged eight, in proceedings between Mrs H, the father and Miss B. Following further litigation, Mrs H sought an order varying the arrangements because of repeated non-compliance with the earlier order, including cancelled contact, deception about holiday contact and the involvement of T in that deception.

After the substantive judgment, Mrs H applied orally for the father and Miss B to pay or substantially contribute to her costs. The respondents relied on their limited means, lack of legal representation and Miss B’s contention that she was not directly responsible for the child arrangements. The central issue was whether the respondents’ conduct justified an exceptional costs order and, if so, what order was just and enforceable.

1. Costs principles. Costs in family proceedings remain in the discretion of the court under Senior Courts Act 1981, section 51(1), and rule 28.1 of the Family Procedure Rules 2010. The usual civil rule that costs follow the event does not apply in family proceedings; rule 44.3(2) of the Civil Procedure Rules 1998 is disapplied.
2. Exceptional threshold. In proceedings under the Children Act 1989, a costs order is justified only where the litigation or other conduct is unreasonable or reprehensible. The father’s deliberate breach of the earlier order, deception of Mrs H, inducement of T to lie, and disregard for the authority of the court met that threshold.
3. Relevant mitigation. The court considered the father’s serious mental ill-health, the respondents’ apologies, their lack of legal representation and their apparently modest means. Lack of representation may justify latitude for minor defaults where legal advice would probably have prevented them, but it did not assist the father in relation to conduct he knew was wrong and whose harmful consequences were obvious.
4. Order. The father was ordered to contribute £15,000 towards Mrs H’s costs. No separate order was made against Miss B. The costs order was not to be enforceable without the court’s permission, both to reflect the father’s circumstances and to avoid undermining compliance with the new child arrangements order.

The judgment refers to earlier decisions in the same litigation, including the first costs decision in Re E-R (Child Arrangements) [2016] EWHC 805 (Fam) and the substantive judgment in Re E-R (Child Arrangements No.2) [2017] EWHC 2382 (Fam). This judgment determined the subsequent costs application.