Re N and A (1996 Hague Convention: Costs)

In children proceedings, the usual order is no order as to costs. That approach applies equally to appeals and alleged child-abduction cases. A costs order should be made only in unusual or exceptional circumstances, such as reprehensible conduct, conduct outside the band of reasonableness, or a significant disparity of means. An unsuccessful argument is not, without more, unreasonable conduct. Nor does refusing formally to concede an appeal justify costs where the position remains reasonably arguable. A legally aided party’s status does not itself impose statutory costs-protection limits in family proceedings, although the parties’ means remain relevant.

The father appealed an order made by Francis J in proceedings concerning the return of three children. The Court of Appeal allowed the appeal in Re N and A (1996 Hague Convention: Article 13) [2023] EWCA Civ 623, set aside the return orders and stayed the inherent-jurisdiction proceedings. The father then sought his costs of the appeal, including legal expenses and accommodation, living and childcare expenses. He alleged that the mother had acted unreasonably by pursuing a jurisdiction argument and refusing formally to concede the appeal after the children had returned to Kyiv. The mother relied on the usual approach to costs in children cases and her limited means. The central issue was whether exceptional circumstances justified departing from the general no-order principle.

1. Outcome. The application for costs was refused. There was no order as to costs, save for the necessary order for detailed assessment of the respondent’s publicly funded costs.
2. The general practice in proceedings relating to children is to make no order as to costs. The principle reflects the paramount importance of child welfare and the fact that such proceedings should not ordinarily be viewed as producing adult winners and losers. It applies on appeal as well as at first instance, and also applies in alleged child-abduction cases.
3. A departure may be justified where conduct is reprehensible or falls beyond the band of what is reasonable. A disparity of means may also be relevant. The mother’s pursuit of the return application and jurisdiction argument was not unreasonable. Her allegation of abduction provided a proper basis for seeking the children’s return, and the jurisdiction argument was not so obviously wrong before the first-instance hearing as to cross the relevant threshold.
4. The mother’s refusal formally to concede the appeal was also not sufficiently unreasonable to justify costs. Although the court rejected her proposed resolution and corrected an order made without jurisdiction, her position that the appeal had become academic was within the range of reasonable conduct.
5. As the threshold for departing from the no-order principle was not met, it was unnecessary to determine the recoverability of the father’s additional expenses or the mother’s ability to pay. The costs-protection scheme under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 does not apply in family proceedings, although means would have been relevant if the discretion had been engaged.

• Court of Appeal (Civil Division) — In the earlier appeal, Re N and A (1996 Hague Convention: Article 13) [2023] EWCA Civ 623, the court set aside the orders for the children’s return and stayed the inherent-jurisdiction proceedings.
• Court of Appeal (Civil Division) — The father’s subsequent application for costs was refused. No order as to costs was made, apart from detailed assessment of the respondent’s publicly funded costs.