R (A Child) (Costs)

In family proceedings, there is no general rule that the unsuccessful party pays the successful party’s costs. Under Family Proceedings Rules 2010, rule 28.1, the court has a broad discretion to make the order it considers just. In child abduction cases the usual order is no order as to costs, but that approach may be departed from where a party has acted unreasonably or there is a substantial disparity in means. Unreasonable conduct may be assessed cumulatively. Deliberately presenting a misleading case, pursuing allegations known to be false, and using proceedings to harass the other party may justify a substantial costs contribution.

The Father applied under the inherent jurisdiction concerning R, seeking the child’s return to the United Kingdom on the basis that R had been habitually resident in the UK and had been wrongfully removed by the Mother. The application was dismissed because R had been habitually resident with the Mother in Spain since at least January 2018 and had not been habitually resident in the UK after September 2014.

The Mother then sought her costs. Neither party was legally aided. The central issue was whether the Father’s conduct justified departing from the usual no-order-as-to-costs approach in child abduction proceedings and, if so, what contribution should be ordered.

1. Costs discretion. Rule 28.1 of the Family Proceedings Rules 2010 conferred a broad discretion to make such order as was just. The general rule in CPR 44.2(2), that the unsuccessful party pays the successful party’s costs, did not apply in family proceedings.
2. Relevant considerations. The court was entitled to consider all the circumstances, including the parties’ conduct, partial success, admissible settlement offers and disparity of means. In child abduction cases, the usual order was no order as to costs, but a costs order was appropriate where a party had behaved unreasonably or there was substantial disparity between the parties’ means.
3. Unreasonable conduct. The Father had presented a substantially misleading account. He alleged abduction and lack of knowledge of the Mother’s and child’s whereabouts despite knowing the relevant facts. He pursued an untenable habitual-residence case, sought to rely on an interim order which had been overtaken by agreement, and used without-notice proceedings without a proper factual basis. The conduct was deliberate and amounted to harassment.
4. The factors, considered individually and cumulatively, justified requiring the Father to make a substantial contribution towards the Mother’s costs.
5. The Mother’s costs exceeded £30,000 including VAT. The court ordered the Father to contribute £25,000 towards those costs.