D v E

In children proceedings, the usual order remains that there be no order as to costs. The court nevertheless retains a broad discretion under Family Procedure Rules 2010 and Civil Procedure Rules 1998. Unreasonable or reprehensible conduct, and success in the proceedings, are relevant but do not automatically justify a costs order. The court must assess all the circumstances, including the parties’ conduct, the issues raised and defended, proportionality, and the wider background. A successful party may therefore receive no order for costs where the opposing party’s stance, although unsuccessful and unhelpful, was not sufficiently unreasonable or reprehensible in the context of the case.

The applicant mother successfully obtained the return of the parties’ child to Country B under the Hague Convention. The respondent father had defended the application on the grounds that the child was habitually resident in this jurisdiction and that the mother had consented or acquiesced to the child’s relocation. Those defences were rejected in the earlier judgment, reported as E v D [2023] EWHC 1941 (Fam).

The mother subsequently applied for payment of her legal costs, including costs incurred before the Hague Convention proceedings were issued. The central issue was whether the father’s conduct and litigation stance justified departing from the usual no-order principle in children cases.

1. Application dismissed. There was no order as to costs.
2. The court had a wide discretion under rule 28.1 of the Family Procedure Rules 2010, together with Part 44 of the Civil Procedure Rules 1998. The matters in Part 44.2 included the conduct of the parties, partial success, settlement offers, the reasonableness of raising or defending issues, and the manner in which the litigation was conducted.
3. The mother had succeeded, and there was force in her criticism of the father’s position on habitual residence and consent or acquiescence. His earlier divorce proceedings in Country B, and documents signed before the child came to this jurisdiction, materially weakened the case he advanced in the Hague proceedings.
4. Success in the application did not, however, establish that the father’s litigation stance was unreasonable or that his conduct was reprehensible. The court had to stand back and consider the wider canvas, including the history of the relationship, the parties’ decisions since December 2020, and the summary nature of the proceedings.
5. The father’s position was unhelpful from the child’s welfare perspective and caused uncertainty. Those matters did not, in the circumstances, justify a costs order. The costs incurred with the mother’s first solicitors also did not wholly relate to the issues in the Hague proceedings and arose in the context of different applications.