ON APPEAL FROM BOURNEMOUTH COUNTY COURT
HIS HONOUR JUDGE MESTON QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LADY JUSTICE GLOSTER
|RE L (COSTS OF CHILDREN PROCEEDINGS)|
Mr Steven Howard (instructed by NGA Solicitors) for the respondent father
Hearing dates: Friday 3rd October 2014.
Crown Copyright ©
Lady Justice Gloster :
"UPON hearing counsel for the applicant father and counsel for the children's guardian.
AND UPON the respondent mother . neither attending nor being represented, and the court being informed that the mother had been notified of this hearing and of the application for an order for costs.
AND UPON it being recorded that the children's current wishes and feelings regarding contact with their mother are as set out in paragraph 2 of the report of the guardian . dated 20.03.2013, being that:
a) Contact with their mother should re-establish on a gradual basis and be guided by the children.
b) At least initially contact should be supported and might, for example, start with a short contact at the maternal grandmother's home or supported by the maternal aunt Sarah.
c) The children's expressed hope is that contact would gradually increase up to a maximum of:
i) staying contact during school term time, on alternate weekends from Friday after school until 7pm on Sunday;
ii) staying contact during Easter school holidays and Christmas school holidays, for one week; and
iii) staying contact during the Summer school holiday, for between two and three weeks.
AND UPON the guardian supporting the father being responsible for administering the children's trust funds, and further supporting the father being responsible for decisions relating to the children's future schooling.
1. The child TL (d.o.b. 10.04.2000) shall reside with the applicant father.
2. The child BL (d.o.b. 23.06.2003) shall reside with the applicant father.
3. The Order of District Judge Willis dated 15.05.2012 be discharged and replaced by the provisions of this order.
4. The applicant father shall be solely responsible for making decisions in respect of the schooling of each child.
5. The applicant father shall be responsible for administering the Child Trust Funds in respect of both children with account numbers [X] and [Y] and for that purpose the respondent mother is directed to sign and return by 4pm on 08.04.2013 the necessary documents as are required to transfer the 'registered contact' for each account to the father, and if she fails or refuses to do so a District Judge may execute those documents
6. The applicant father shall be responsible for administering the T investment fund invested through A.. Unit Trust Managers Limited with account number Z and for that purpose the respondent mother is directed to sign and return by 4pm on 08.04.2013 the necessary documents as are required to vest that account in the father for the benefit of TL, and if she fails or refuses to do so a District Judge may execute those documents.
7. Permission is given to the applicant father to withdraw his application dated 03.12.2012 for an enforcement order.
8. Pursuant to section 91(14) Children Act 1989 both the applicant father and the respondent mother are prohibited from applying for any order under section 8 of that Act in respect of BL (d.o.b. 23.06.2003) or TL (d.o.b. 10.04.2000) without leave of the court. Any application for leave shall be referred to Judge Meston if available. This order shall remain in force until the 16th birthday of the child concerned.
9. The respondent mother shall pay the costs of the applicant father in respect of the applications relating to the children since the order of 15th May 2012 including costs previously reserved (but excluding the father's application for an enforcement order) in a sum to be agreed within 14 days of service of a revised costs schedule on the mother, or in default of agreement to be subject to detailed assessment on the standard basis by a costs judge at Bournemouth.
"Thank you for providing us with a copy of your letter to NGA solicitors dated 25th February 2013. We can confirm that TL returned to her mother on 24th February 2013. We are instructed that the situation between TL and her mother was very emotional immediately following her return home, but after a great deal of discussion, TL calmed down and became more settled. TL had convinced herself that her mother did not want her to return home, but this was never the case, but TL was angry because she thought she had been abandoned.
We are instructed that contact has been agreed between TL and her father on the basis that she stays with him for 3 nights on one week and 4 nights the following week, whereupon this will alternate. TL has expressed her satisfaction with this arrangement, but it is subject to reasonable condition that the father is actually present when the overnight contact takes place. Clearly, there is no benefit to TL if she is either staying at her father's home or somewhere else when the father is away on business.
We understand that BL is due to spend this weekend with our client and she is therefore expecting him on Friday 1st March.
This case remains listed for a final hearing commencing 25th March 2013, but in light of the recent, fairly dramatic developments, Counsel for our client has recommended that we secure an early directions appointment (ideally in front of HHJ Meston QC) to consider how those developments impact upon the applications before the court and whether there should be any amendment to the directions made on 11th February 2013 which did not anticipate subsequent events."
"And Upon the court being informed that the issues that remain to be determined are the future residence and contact arrangements for BL and the parties do not consider than any form of mediation is presently possible"
"We write with reference to the above matter which is listed for a final hearing due to commence of 25th March 2013. We are in receipt of the Guardian's report dated 6th March 2013 and we have discussed this with our client who has provided us with her instructions as set out below:-
It is with great sadness that our client acknowledges a breakdown in her relationship with TL who is now living with her father and BL. Although the application before the court is for a Residence Order in respect of BL, it is now clear that it would not be in his best interests for that application to be pursued. When issued, TL was living with her Mother and it was our client's intention that the children be together in her care. TL's unexpected decision to live with her father has brought about a significant change and in all the circumstances, our client does not feel that it is appropriate for her to continue the prosecution of her case. Accordingly, we are specifically instructed to seek agreement that a Consent Order be drawn up in the following terms:-
a) Leave be granted to our client for the withdrawal of her application for Residence and Contact Orders in respect of BL.
b) A residence order be made in favour of the father relating to TL.
c) The current Order for contact in relation to BL be discharged. Our client does not seek a defined contact order in respect of the children. In due course, she would simply hope that contact arrangements may develop naturally at a pace that each of the children are comfortable with.
d) The final Hearing listed 25th March 2013 be vacated.
e) No Order as to Costs.
Our client appreciates the Guardian's recommendation that there be a shared residence Order in respect of the children, but she is mindful of the fact that such an order was previously attempted in relation to BL, but ultimately broke down and resulted in significant further litigation between the parties. By proposing a settlement of matters in the above terms, it is our client's hope that the litigation with her former husband may conclude immediately and any further applications in relation to the children will be unnecessary if her contact with them is based only on the arrangement that they expressly require.
Since dictating the above, we have received the father's application for a Residence Order in respect of TL. As indicated above, our client will consent to that order being made.
We understand that a directions appointment is listed for Friday 15th March 2013. In light of the mother's agreements as outlined in this letter, she has instructed us that she does not require representation at the hearing. Indeed, if a Consent Order can be drafted immediately for signature, then the hearing itself may be unnecessary. We would respectfully invite the father's solicitors to deal with this.
Accordingly, we look forward to hearing from you by return."
"both children are now de facto, currently resident with the Applicant father. The Applicant father has made an application in respect of residence for TL. It is also understood by the Applicant father that the Respondent mother now wishes to withdraw her application for residence of BL but does not seek any defined contact arrangements for both children in the future. This position is unacceptable to the Applicant father who wishes for the question of contact at least to be resolved by a final hearing, as far as both children are concerned, fixed for 25 March 2013."
No mention was made in that letter of any intention on the part of the father to seek his costs against the mother.
"Having taken instructions from our client and having further considered the matter with the Guardian, we feel that we cannot agree that there will be a Consent Order drawn up in the terms proposed or at all.
Our client feels that the question of future contact must be ironed out properly so that there is no necessity for either party to make any further applications in the near future. Further the Guardian feels that in withdrawing your client's application for residence of BL, this must be properly explained by her personally to the Judge and he is also concerned that arrangements must be put in place for future contact to both the children by your client. It is for this reason that we are not prepared to enter into a Consent Order prior to the hearing tomorrow which we feel is completely inappropriate in the circumstances. We therefore intend to attend the hearing in respect of the directions appointment of our client's application for residence of TL and hope that the matter can be dealt with more fully at the designated final hearing on the 25th March. No doubt you will advise your client accordingly."
Discussion and determination
Paragraphs 5 and 6 of the Order - the children's trust funds
"..and upon [the father] undertaking to the wife as a contract: (R) that he will transfer into the wife's name the two children's trust fund accounts currently held by her but vested in his name".
Paragraph 9 of the Order the issue of costs
"having heard submissions, I am satisfied, unusually, this is a case in which a costs order would be justified. I am satisfied that the mother is on notice of the application and, in general terms, of the reasons for it and has chosen not to put in any response to the application or attend today. Therefore I will make an order. It seems to me as to the formalities Mr Howard I probably ought to specifically to say the mother shall pay the costs of the applicant father of what [sic]?
That was amplified at page 19 of the transcript by the judge ordering the mother to pay the costs of :
"the applications relating to the children .since order of 15 May 2012, excluding the father's application for an enforcement order, including costs reserved in a sum to be agreed within 14 days
The father's solicitors had served a comprehensive "global" costs schedule before the hearing in a figure of approximately £23,763. However, this was subsequently revised upwards in a letter after the hearing to an all-inclusive figure of £25,281.28 including VAT.
"that the issues which remain to be at determined are the future residence and contact arrangements for BL and that the parties do not consider that any form of mediation is presently possible".
The relevant law
" The principles, which fall to be applied, are not, we think, in dispute. The judge summarised them succinctly in the following way: -
"2.1 The Civil Procedure Rules apply. Under normal circumstances, according to rule 44.3(2)(a) [now rule 44.2(2)(a)] the general rule is that costs should follow the event, although the court can make a different order. (Rule 44.3(2) (b) [now rule 44.2(2)(b)])
2.2 However, this general rule does not apply to family proceedings. (Family Proceedings (Miscellaneous Amendments) Rules 1999)
2.3 It is suggested that even in family proceedings, the general rule is probably the starting point but can more easily be displaced. (Gojkovic v Gojkovic (No 2)  Fam 40)
2.4 In cases involving children in particular, costs awarded against one parent or another are exceptional since the court is anxious to avoid the situation where a parent may feel "punished" by the other parent which will reduce co-operation between them. This will only impinge ultimately on the welfare of the child or the children concerned. (London Borough of Sutton v Davis (Costs) (No2)  2 FLR569; Re M (Local Authority's Costs)  1 FLR 533)
2.5 The conduct of the parties is in reality the major consideration when deciding whether or not an exceptional order for costs should be made. It should only be made if the penalised party has been unreasonable in his or her conduct. Moreover the "unreasonableness" must relate to the conduct of the litigation rather than the welfare of the child. (R v R (Costs: child case)  2 FLR 95) [my emphasis]
2.6 One has to be very careful in this distinction when, as in the case of (the mother), the apparent unreasonableness is as a result of the personality of the relevant party. In such circumstances, there is often an overlap of that party's conduct of the litigation and the conduct relating to the welfare of the child.
2.7 At the beginning of my involvement (the father) was applying for contact in relation to A as well as J. His welfare has also been a concern from time to time throughout. However, the costs in dispute have been incurred in relation to J's welfare alone.
 Despite the extensive citation of authority, we think the principles governing the award of costs in children's cases are well established, and more than adequately summarised by the judge in the extract from her judgment, which we have set out at paragraph 36 above."
" For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse's costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal."
Despite the fact that Re T was a local authority case the principle is clearly apposite here.
"This is a very disturbing and distressing family situation for the children to have been witness to. There is no right or wrong answer and I believe both children will bear the scars of their parents' separation and of these proceedings into adulthood. I believe that my last recommendation for BL to remain with his mother runs counter to my considered assessment. I think that on balance BL should probably return to live with his father but I am extremely worried about the effect upon BL of this removal back to his father's care. Unless both of his parents support this move, there are serious risks involved for BL's emotional state."
Mr B also made it clear that he was confident in the ability of both BL's parents to meet his needs on a daily basis.
"There shall be no order as to the costs of either party in relation to the reserved and other costs of the applications relating to the children since the order of 15 May 2012."
Lord Justice Kitchin
Lady Justice Black