A (Appeal: Costs), Re

In proceedings concerning children, the general practice is to make no order for costs. A departure requires good reason. The court must assess the parties’ litigation conduct in the round, including whether conduct was reprehensible, the outcome of the appeal, any attempts to compromise, the welfare of the child, the parties’ relationship, and the financial consequences of an order. Success on some grounds does not by itself justify a costs order. Where both parties’ conduct is frustrating but not reprehensible, and an order risks aggravating conflict or harming the child’s financial position, the appropriate order may be no order for costs.

The appellant sought her costs following an earlier appeal concerning proceedings under the Children Act. In the earlier judgment, reported as [2024] EWHC 1669 (Fam), the appellant succeeded on two of three grounds and the case was remitted for rehearing.

The respondent resisted the application, relying on the general approach to costs in children proceedings and alleging difficulties in the appellant’s conduct. The central issue was whether there was good reason to depart from the general practice of making no order for costs.

1. Application dismissed. The appropriate order was no order for costs between the parties.

2. The court applied the general law on costs in children proceedings, as recently summarised in Re O (Appeal: Costs) [2024] EWHC 1163 (Fam). The starting point was the general practice of making no order for costs. A departure required good reason.

3. The parties’ litigation conduct had to be assessed in the round. The appellant’s case had evolved, while the respondent had served a position statement late and maintained an argument that the appeal was a backdoor appeal despite permission having been granted. That argument prolonged the appeal and was rejected. Nevertheless, neither party’s conduct was reprehensible.

4. The appellant’s success on two of three grounds, and the remittal for rehearing, were relevant but did not make a costs order appropriate. The respondent had made attempts to compromise the appeal, although he had not conceded every ground.

5. The appeal arose in children proceedings in which the child’s welfare was paramount. The court gave weight to the distrust and antagonism between the parties, the risk that a costs order would aggravate their relationship and impair their ability to work together for the child, and the potential financial impact on the child in the related Schedule 1 proceedings. Financial inequality was considered but was not determinative.

• High Court (Family Division): the costs application following the appeal was refused and no order for costs was made.
• Family Court at Barnet: the appeal concerned the order of Recorder Searle in case ZW20P01007.