Unreasonable mother ordered to pay half of father’s costs

The general rule regarding legal costs in civil proceedings is that the loser pays the winner’s costs.

The rationale for this is simple: if the loser had not contested the case then the winner would not have been put to the expense of going to court, so the loser should have to pay the winner’s costs.

But in family proceedings concerning children it is not normally appropriate to think in terms of ‘winners’ and ‘losers’.

Accordingly, the general practice is that costs will not be awarded against a party in family proceedings concerning children.

However, the court does still have a discretion to make costs orders in exceptional circumstances, for example where a party has been guilty of reprehensible or unreasonable behaviour in relation to the proceedings.

Such an order was made by the court in the recent case C v S.

The case concerned a long-running and highly acrimonious dispute between parents over arrangements for their two children.

The children had originally been living with the mother, but in 2020 the court ordered that they be moved to live with their father, to protect them from emotional harm from their mother, who had made entirely unsubstantiated allegations against the father of abusing the children.

After this, the father suspended the mother’s contact with the children, following concerns that the mother’s conduct during contact might again cause or being causing the children emotional harm.

The mother then applied to the court to have the contact re-established.

The outcome of the mother’s application was that she was to have supervised contact with the children, once a month.

But that was not the end of the matter. The father sought an order that the mother pay his costs of the application because of the unreasonable way in which the mother had conducted the case, which he claimed had caused the children, him, and his partner anxiety, stress, time and money.

The father’s specific allegations included that the mother had given false, misleading or evasive information to the court and professionals to seek alignment to her; that she had made unsubstantiated allegations against the father of acting in a punitive or alienating way; and that she had sought to manipulate the children against the father.

After considering the father’s allegations the judge concluded that the mother had behaved unreasonably and he therefore had “no hesitation” in concluding that the father should be granted an order that the mother pay his costs. He said:

“If [the mother’s] conduct had been reasonable, far fewer costs would have been incurred by [the father]. Instead, proceedings were litigated with full vigour by [the mother] … placing [the father] in a position where he had no option but to incur legal costs to protect himself and promote as best he could the welfare of the children.”

Accordingly, and taking certain other matters into account (including that the mother had succeeded in the case), the judge ordered the mother to pay half of the father’s costs.

You can read the full costs judgment here.

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