A and B (children: expert’s reports), Re

In private law children proceedings, costs orders remain exceptional, including on appeal. The court retains a discretion to make such order as is just, having regard to all the circumstances, including the parties’ conduct and the extent of success. The usual practice is not to order costs absent unreasonable or reprehensible behaviour. An appeal may provide different factual circumstances because the parties know the first-instance findings and reasons, but the governing principles remain unchanged. Costs orders against a children’s guardian or the children represented by the guardian are unusual where the guardian has acted properly in advancing the child-focused position. The court may also refuse costs where an order would intensify parental conflict and thereby harm the children’s interests.

The mother appealed a case management order in private law children proceedings requiring a global psychological assessment of the family. The appeal was allowed and the direction for the appointment of a psychologist was set aside in Re A & B (Children: Expert's Reports) [2024] EWHC 948 (Fam). The mother then sought her appeal costs from the father and the children’s guardian, or CAFCASS. All parties acted in person or through representation at different stages. The central issue was whether the circumstances justified departing from the general practice in children proceedings that each party bears its own costs.

1. The application for costs was refused. No order for costs was made in relation to the appeal.

2. Although the normal rule that costs follow the event is disapplied in family proceedings, the court retains a broad discretion under FPR r.28.1. The relevant circumstances include the conduct of the parties and whether a party succeeded on all or part of its case, with CPR 1998 r.44.2(4) and (5) applying at first instance and on appeal. The court may also limit or exclude recoverable appeal costs under CPR 1998 r.52.19 where costs recovery is normally limited or excluded at first instance.

3. The practice in children cases, identified in Re S (a Child) [2015] UKSC 20 and confirmed in Re T (care proceedings: serious allegations not proved) [2012] UKSC 36, is generally not to order costs unless a party has behaved unreasonably or reprehensibly. That principle applies to appeals as well as trials, and to private law as well as public law proceedings. The appeal context may alter the application of the principle because the parties know the findings and reasons below and can reconsider whether to advance or resist the appeal.

4. No costs order was justified against the children’s guardian. Such orders are unusual, and the guardian’s role is to make child-focused submissions independently of the competing interests of the parents. The guardian’s opposition to the appeal was neither unreasonable nor reprehensible.

5. The father’s position was also reasonable. He defended the first-instance order with the guardian’s support, was a litigant in person, and the arguments concerned the children’s best interests. A costs order would also have been likely to deepen already fraught parental relations and would not have served the children’s interests.

1. High Court (Family Division) — The mother’s appeal against the case management order was allowed and the direction appointing a psychologist was set aside in Re A & B (Children: Expert's Reports) [2024] EWHC 948 (Fam).

2. High Court (Family Division) — The subsequent application for the mother’s appeal costs was refused. No order for costs was made.