E (Children: Costs), Re

In proceedings concerning children, the general practice is to make no order for costs. The court may depart from that practice in exceptional circumstances, including reprehensible or unreasonable litigation conduct. The same objective standard applies in public and private law proceedings, at fact-finding and welfare hearings, and whether or not a party is legally aided.

A party’s genuine belief in grave allegations does not make their pursuit reasonable. When allegations of a distinct and extreme character transform the proceedings, the court must assess their particular impact and consider whether a proportionate costs order is justified.

In private law children proceedings, the mother made allegations of domestic abuse and alleged that the father had sexually abused the children and involved others in a paedophile sex ring. The father denied those allegations and alleged alienation. Following an extensive fact-finding hearing, the sexual abuse allegations were not proved, although findings were made against each parent on other matters.

The Family Court refused the father’s application for his costs of the fact-finding process. It relied on the mixed findings, the mother’s belief in her allegations and the causes of an earlier adjournment. The father appealed, arguing principally that the extreme sexual allegations and their impact on the proceedings required separate consideration.

1. Appeal allowed in part. The general practice in proceedings concerning children is to make no order for costs. A costs order remains available in exceptional circumstances, including where a party has behaved reprehensibly or unreasonably in relation to the litigation. That approach is simple, flexible and well established.

2. No different test applies to private law fact-finding hearings. The Supreme Court’s decision in Re T had rejected the approach in Re J under which the ring-fenced character of a fact-finding hearing placed its costs in a separate category. The same principles apply in public and private law proceedings, to fact-finding and other hearings, and irrespective of legal-aid status.

3. There is likewise no special costs regime where an application against a legally aided party is intended to provide a gateway to possible recovery from the Lord Chancellor under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Ordinary principles enable the court to make any order required by the interests of justice.

4. The Family Court was entitled to consider the whole picture, including the cross-allegations and mixed findings. It nevertheless failed to separate the mother’s extreme and unfounded allegations that the father had sexually abused the children and participated in a paedophile sex ring. Those allegations were qualitatively different, transformed the proceedings, caused extraordinary delay and greatly increased the costs. The abandoned hearing was also directly connected with their pursuit.

5. The assessment of reprehensible or unreasonable litigation conduct is objective. The mother’s belief that her allegations were true did not determine whether their pursuit was reasonable. The judge also erred by treating the mixed findings as a reason to make no order without considering a proportionate order.

6. The Court substituted an order that the mother pay half of the father’s costs of the Children Act proceedings up to 3 July 2024, excluding hearings already subject to no-costs orders. Enforcement against the mother requires leave of the Family Court. The order did not relate to her allegation of rape.

1. Court of Appeal (Civil Division): The appeal was allowed in part. The Court substituted an order requiring the mother to pay half of the father’s qualifying costs up to 3 July 2024, subject to restrictions on enforcement: [2025] EWCA Civ 183.

2. Family Court at Canterbury: Mr Leslie Samuels KC, sitting as a Deputy High Court Judge, declined to order the mother to pay any of the father’s costs of the fact-finding process.