Father successfully appeals against costs order in children case

There is a rule in English civil law that the loser of a case will usually be ordered to pay the winner’s costs.

But in family law cases involving children it is not of course appropriate to speak of ‘winners’ and ‘losers’. Accordingly, the general rule in cases involving children is that there should be no order for costs – i.e. each party should be responsible for their own costs.

But that is not to say that the court cannot make costs orders in children cases. The court can order one party to pay the other’s costs in exceptional circumstances, for example where that party has behaved reprehensibly or taken an unreasonable stance being taken in relation to the proceedings.

In a recent case involving proceedings between a mother and a father concerning arrangements for their daughter the judge ordered the father to pay the sum of £385,587 towards the mother’s costs.

The reason the judge made this costs order was that he found that the father had conducted himself badly in the course of the proceedings, for example by failing to attend two hearings, and making an application late within the proceedings.

The father appealed against the costs order, to the Court of Appeal.

The Court of Appeal allowed the appeal. It found, amongst other things, that the judge had failed to take into account the conduct of both parties (the mother had also been ‘guilty’ of bad conduct in the course of the proceedings), and that in any event the father’s conduct had not been so bad as to justify a departure from the general rule that there should be no order for costs in children cases.

Accordingly, the Court of Appeal dismissed the costs order and replaced it with an order that there be no order for costs (save for certain costs incurred by the mother that the father conceded he should pay).

The case does not set out any new law, but may be considered a reminder that costs orders are usually not appropriate in cases concerning children (including public law children proceedings, such as care proceedings).

And this is surely as it should be: those involved in children proceedings, in particular parents, should be able to fully engage in the proceedings, safe in the knowledge that they will not usually run the risk of having a costs order made against them. To look at it from the child’s perspective, establishing what is best for their welfare is more important than legal costs considerations.

You can read the Court of Appeal’s judgment, here.

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