M (A Child: Costs), Re

In proceedings concerning children, the general practice is to make no order as to costs. The discretion under the Family Proceedings Rules 2010 is broad, but departure requires exceptional circumstances, ordinarily including reprehensible or unreasonable conduct. Losing or resisting a strong appeal, advancing a cross-appeal, sending a routine costs warning, or taking advantage of an unexpected first-instance order does not, without more, satisfy that threshold. Conduct must be assessed objectively and without hindsight. An appeal may affect the application of the principles, but does not change them. A costs order cannot be justified merely because the money would otherwise be available for the child.

The parents litigated about a final child arrangements order under section 8 of the Children Act 1989. Magistrates made an order providing for staged increases in the child’s time with his father and eventual equal shared care without hearing oral evidence from the parents.

On the mother’s appeal and the father’s cross-appeal, the Family Court set aside the magistrates’ order, dismissed the cross-appeal and directed a further final hearing. The judge made no order for the costs of the magistrates’ hearing but ordered the father to pay the mother’s costs of the appeal. The issue was whether his conduct justified departing from the general no-costs practice in children’s proceedings.

Sir Launcelot Henderson LJ gave the leading judgment, with which Peter Jackson LJ agreed. The appeal was allowed. The Costs Order was discharged and replaced by no order for costs.

1. Applicable framework. Rule 28.1 of the Family Proceedings Rules 2010 gives the court a broad discretion to make such order as it considers just. Rule 28.2 disapplies the ordinary costs-follow-the-event rule in CPR 44.2(2), while incorporating the relevant provisions of CPR Part 44. The court must therefore consider all the circumstances, including the parties’ conduct before and during the proceedings, the reasonableness of raising or contesting issues, and the manner in which the case was pursued or defended.
2. General rule and exception. The established practice in private and public law proceedings concerning children is to make no order as to costs, including on appeals and irrespective of legal aid. The rationale, explained in Sutton London Borough Council v Davis (No 2) and Re S, is that child proceedings are partly inquisitorial, parties have a role in assisting the court, and costs orders may deter participation and damage future parental co-operation. Departure requires conduct that is properly characterised as reprehensible or unreasonable.
3. Application to the appeal. The mere fact that the mother’s appeal was strong, or that the father ultimately lost, did not make his resistance unreasonable. The father’s cross-appeal was responsive and it was legitimate to advance alternative arguments. The costs warning sent by his solicitors was at most an inept tactical manoeuvre and could not itself justify an adverse order or amount to an admission that costs should follow the event.
4. The fact that the appeal followed a first-instance hearing did not alter the governing principles. Although parties may have greater opportunity to take stock on appeal because findings and reasons are known, the judge had not explained why conduct accepted as reasonable at first instance became unreasonable on appeal. The unchallenged finding that the father’s conduct did not justify costs in respect of the magistrates’ hearing also meant that those same matters could not be relied on to establish unreasonable conduct on the appeal.
5. The reduction in money available for a child’s welfare resulting from a costs order against a parent was not, by itself, a sufficient reason to depart from the general rule. There were no grounds of sufficient weight to distinguish the appeal from the first-instance hearing.

• Court of Appeal (Civil Division): Allowed the father’s appeal against the costs order and replaced it with no order for costs.
• Family Court at West London: Allowed the mother’s appeal against the magistrates’ child arrangements order, dismissed the father’s cross-appeal and directed a further final hearing. Subsequently made no order for the costs of the magistrates’ hearing but ordered the father to pay the mother’s costs of the appeal.
• Magistrates’ court: Made a final child arrangements order providing for staged increases in contact and eventual equal shared care.