J (Children)

In children proceedings, the normal expectation is that each party bears their own costs. A departure is justified where a party’s conduct is unreasonable or reprehensible and has caused the litigation. That principle applies to enforcement proceedings: the court must still exercise its discretion under Family Procedure Rules 2010, rule 28(1), rather than treating misconduct as automatic. A security or fighting fund does not remove or suspend the court’s costs jurisdiction unless the arrangement clearly says so, and it does not permit double recovery. Costs may be awarded to media organisations where the party seeking to avoid publicity caused the relevant litigation through serious misconduct. Appellate interference with a costs discretion requires a material error of principle or an order shown to be wrong.

The appeals arose from costs orders made after two children were taken to Ukraine for a holiday and not returned, contrary to the arrangements authorised by the High Court. The mother and maternal grandfather appealed orders requiring the mother to pay the father’s costs, making the grandfather jointly and severally liable for half, and requiring them to pay the father’s and media organisations’ costs concerning unsuccessful applications to redact judgments.

The appellants argued that a £1 million security fund in the consent order prevented further costs orders; that the judge had applied the wrong approach in children proceedings; and, for the grandfather, that media costs should not have been awarded against him. The father sought permission to cross-appeal out of time concerning the basis of assessment and the children’s guardian’s costs.

1. Appeals dismissed. The costs orders were exercises of the judge’s principled discretion under rule 28(1) of the Family Procedure Rules 2010. An appellate court will interfere only where a relevant error of principle is shown and the order is thereby wrong.
2. The consent order created a security or fighting fund for the father’s legal and incidental costs if the children were not returned. It did not disable or suspend the court’s ordinary costs jurisdiction. The words requiring the fund to be used for a specified purpose did not mean that the purpose could be met only from the fund. The father could not recover the same sums twice, and only reasonable costs were chargeable.
3. The general approach in children proceedings is that costs orders are unusual and require unreasonable or reprehensible conduct, consistently with Re T (Care Proceedings: Costs) [2012] 1 WLR 2281 and Re S (A Child) [2015] UKSC 20. The judge’s observations that enforcement proceedings themselves demonstrate misconduct, and that the approach to financial proceedings should be read across to children proceedings, were unnecessary and not statements of principle. They were nevertheless superfluous because the departure from the normal rule was independently established by the mother’s and grandfather’s misconduct, which caused the enforcement litigation.
4. The fact that the father failed on some points, or that the grandfather’s litigation conduct was not separately significant, did not prevent costs orders where the entire proceedings resulted from the appellants’ conduct. Full costs against the mother and half costs against the grandfather were therefore unexceptionable and compensatory rather than penal.
5. The usual practice that media organisations involved in decisions about publicity are not generally awarded costs did not govern this case. The grandfather had aided and abetted the abduction and then used extensive litigation unsuccessfully to prevent his identification. An order for the media’s costs was accordingly justified.
6. Permission for the father to cross-appeal out of time was refused. There was no good explanation for the delay, the relevant complaint arose earlier than suggested, and the proposed grounds were weak and identified no fault in the orders.

The orders requiring the children’s return remained in force.

• Court of Appeal (Civil Division): dismissed the mother’s and grandfather’s appeals against the costs orders made on 27 February and 1 March 2019. Permission for the father to cross-appeal out of time was refused.
• High Court: made the underlying costs orders, including liability for the father’s costs and the costs of the media organisations. The judgment identifies related earlier decisions as [2018] EWCA Civ 1372 and [2019] EWHC 105 (Fam), but does not give a citation for the specific costs orders under appeal.