Father v Mother

In family proceedings concerning children, costs do not generally follow the event. The court retains a broad discretion to order costs where a party has acted reprehensibly or unreasonably, or where other circumstances make an order appropriate and just. The fact that a party pursued an application which was later conceded does not, by itself, justify departing from the general approach. The court must consider the conduct of both parties, the issues that required determination, and whether a more consensual approach would materially have avoided the hearing and its costs.

The Mother applied for costs after the Father conceded his application for the summary return of the children to Dubai at lunchtime on the first day of a three-day hearing. The Mother argued that the Father had acted unreasonably by delaying his concession and by pursuing return rather than focusing earlier on international contact. The Father relied on the general costs discretion in family proceedings and submitted that he had been entitled to seek return after the Mother retained the children in England without his consent. The issue was whether the circumstances justified departing from the usual approach of making no order for costs.

1. No order for costs. The court declined to depart from the general approach in family proceedings involving children that no order for costs is generally made.
2. The court applied the principles identified in Re T (Costs) [2012] UKSC 36 and Re S (Costs) [2015] UKSC 20. Costs may be ordered where a party has engaged in reprehensible or unreasonable conduct. There may also be other circumstances in which it is appropriate and just to make an order.
3. The Father’s conduct was open to criticism. He had pursued summary return and had not focused his application on contact at an earlier stage. However, the Mother had unlawfully retained the children in England knowing that the Father did not agree. She had also opposed international contact throughout the hearing, despite a mechanism in Dubai which could largely have protected their return to England. A hearing on international contact was therefore inevitable and would have been substantially similar even if the return issue had been resolved earlier.
4. Both parties could have acted more reasonably and saved costs and court time. Taken overall, however, the circumstances did not justify a costs order against either party.