England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCFMI 96/0970/F

(His Honour Judge Goldstein )

Royal Courts of Justice

Strand

London WC2

Thursday, 5th December, 1996

B e f o r e:

LORD JUSTICE STAUGHTON

MRS JUSTICE HALE

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RE R (A MINOR)

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MS J GILL (Instructed by Ronald Prior & Co E17) appeared on behalf of the Appellant

MR I DANIELS (Instructed by Vincent Browne & Co E4) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Thursday, 5th December, 1996

JUDGMENT

MRS JUSTICE HALE: In this case a father, who is the respondent in divorce proceedings, appeals against that part of the order made by his Honour Judge Goldstein in the Bow County Court on 18th October 1994 which relates to costs.

After a lengthy hearing about where the parties' child R, who was then aged 10, was to live, the learned judge ordered the father to pay the mother's costs out of his share of the equity in the matrimonial home.

Leave to appeal was granted by Lord Justice Thorpe on 5th July of this year.

There are basically two limbs to the appeal. The first is that the form of the order was wrong in law, in that it offended against the requirements of section 17(1) of the Legal Aid Act 1988 which provides:

"The liability of a legally assisted party under an order for costs made against him with respect to any proceedings shall not exceed the amount (if any) which is a reasonable one for him to pay having regard to all the circumstances, including the financial resources of all the parties and their conduct in connection with the dispute."

It is now common ground between the parties that the learned judge did not conduct the inquiry, which is required by virtue of that provision, and that having reached the conclusion that the father should, in principle, be ordered to pay the mother's costs, he should have adjourned the consideration of his liability to be dealt with in conjunction with the ancillary relief proceedings. That, of course, provides the most efficient and practical means of conducting such an inquiry because at that stage the means of both parties are fully before the court. That is agreed between the parties in this appeal and so the point which is currently in issue is the second limb of the appeal, which is whether the costs order was right in principle.

There is no doubt that a practice has arisen of making no order as to costs in children's cases. This is summarised very conveniently in the judgment of Neil LJ in the case of Keller v Keller and the Legal Aid Board [1995] 1 FLR, 259 at page 267/268 where he says:

"In the last decade, however, it has become the general practice in proceedings relating to the custody and care and control of children to make no order as to the costs of the proceedings except in exceptional circumstances."

In London Borough of Sutton v. Davis (costs)(No.2) [1994] 2 FLR 569 at page 570H-571B Wilson J threw some light on the reasons for the present practice, the existence of which was recognised by Butler Sloss LJ in Gojkovic v. Gojkovic (No.2) [1991] 2 FLR 233.

Neil LJ goes on to say:

"The court retains the jurisdiction and a discretion to award costs in suitable cases. It is unnecessary and undesirable to try to limit or place into rigid categories the cases which a court might regard as suitable for such an award, but examples would be likely to include cases where one of the parties had been guilty of unreasonable conduct or where there was such a disparity between the means of the parties that a special order was justified."

The reasons why this practice has developed perhaps fall into three categories. The first is general to all family proceedings and was pointed out by Butler Sloss LJ in Gojkovic v. Gojkovic at page 237, that orders for costs between the parties will diminish the funds available to meet the needs of the family. Thus it is suggested in this case, that if the father is ordered to pay the mother's costs that will reduce the sums immediately available for the housing and other support of the parties and R. That may indeed sometimes be the case, but on the other hand if the costs of a legally aided party are not recovered in some way, they become a charge on property recovered as a result of the proceedings. Although that charge may be postponed it does, in due course, reduce the size of the cake. Furthermore, of course, it is well established that the incidence of costs as between the parties is one of the things that will be taken into account in ancillary relief proceedings in any event. It is certainly by no means inappropriate for orders for costs to be made along the way in ancillary relief proceedings.

The second reason which is given for there being no costs orders in general in children cases, is that the court's concern is to discover what will be best for the child. People who have a reasonable case to put forward as to what will be in the best interests of the child should not be deterred from doing so by the threat of a costs order against them if they are unsuccessful. That is indeed the major reason in children cases why the court is reluctant to add to the existing deterrents which all litigants face in coming to court.

The third reason is suggested by Wilson J in the case of London Borough of Sutton v. Davis (costs)(No.2) [1994] 2 FLR at page 570 to 571, when he points to the possibility that in effect a costs order will add insult to the injury of having lost in the debate as to what is to happen to the child in the future; it is likely therefore to exacerbate rather than to calm down the existing tensions; and this will not be in the best interests of the child.

Nevertheless, there clearly are, as Neil LJ pointed out, cases in which it is appropriate to make costs orders in proceedings relating to children. He pointed to one of those sorts of situation: cases where one of the parties has been guilty of unreasonable conduct. In this case the conduct of the father was very heavily criticised by the learned judge in various respects, but in particular I would draw attention to the words at page 20 of the bundle in which he says:

"This is a case which is mischievious rather than brought in the best interests of R. It is a demonstration of Mr R's selfishness."

Overleaf he says, at page 21:

"The mother receives strong support from the Court Welfare Officer and Mr Dennehy. Their reports highlight Mr R's negative qualities and Mrs R's good qualities.

I hope that I gave the father every opportunity to explain why he considers the Court Welfare Officer, Dr Dennehy and Mr Mason [whom we are told is a social worker] to be in error and why his views are the correct once. The father's attitude is that anyone who disagrees with him is incompetent, biased or wrong. There is no flexibility in the father's approach from anyone who has a different view from his."

There are ample indications throughout the judgment that the judge took the view that the father's conduct was unreasonable.

It is urged on his behalf that he was not totally unreasonable. The judge does indeed point to the good features about him and his relationship with R. He made some complaints about the mother's care of R to which the judge gave some credance, although it is right to say that in comparison with his criticisms of the father these are very limited indeed. It is further argued that it is not right to penalise the father for defects in his character which cause the apparent unreasonableness of his attitude. The fair point is made that in children cases one must not confuse unreasonableness in relation to the child -- because one might say that we are all expected to be unreasonable in our attitudes to our children -- and unreasonableness in the attitude to the litigation. However, it is quite clear that the learned judge took the view that the father had indeed been unreasonable in relation to the litigation. Of course, the parties should not be deterred, by the prospect of having to pay costs, from putting before the court that which they genuinely think to be in the best interests of the child, but there have to be limits. Children should not be put through the strain of being subject to claims that have very little real prospect of success, still less should they be put through a quite unreasonable involvement in their parents' disputes, to the extent that R was in this case. He was taken to see a psychologist, whom the judge described as totally unqualified to give an opinion on the case. We learn that this was done without the leave of the court. The judge made various criticisms of the psychologist's methods and described him as a 'paid hack'. He was also taken to see a solicitor between the end of the evidence and the judge's giving judgment. In other words, there was conduct in relation to the litigation which goes way beyond the usual sort of attitude which a concerned parent shows in relation to the future of his child.

The judge in this case was very much the best person to determine whether this was an appropriate case, exceptional though it may be, to order that the father was to pay the costs. In my judgment he was perfectly entitled to do so and there is nothing in the case which could cause us to cast doubt on the exercise of his discretion in that matter.

LORD JUSTICE STAUGHTON: Thorpe LJ, when granting leave to appeal in this case said:

"The form of the costs order was arguably not appropriate against a legally aided litigant however well merited."

He gave an estimate of a hearing of half an hour.

In fact there has been no dispute about that point, it is agreed that the form of the costs order was inappropriate. There should first have been an order for the determination of what, in terms of section 17(1), is a reasonable amount for the father to pay having regard to all the circumstances including the financial resources of all the parties and their conduct in connection with the dispute.

So this appeal has to be allowed in part. What has concerned us today, for one and a half hours, is the argument of Miss Gill on behalf of Mr R that there should have been no costs order at all against the father. She bases her argument on what is undoubtedly the practice in child cases, that in the ordinary way orders for costs are not made between the parties. There is of course a power to make such an order, but it is the exception rather than the rule.

Three reasons have been given for that practice. First, it is said that it would be wrong to discourage parents from putting their views before the court when they may well be helpful to the court. For my part I am not sure that it would be wrong to discourage unreasonable parents from putting unreasonable views before the court. That I think was what Mrs Justice Hale was saying just now, and I agree with it. Secondly, it is said that orders for costs will sour the attitude for future cooperation between the parents. Well, I can see the force of that, but I am not sure that it is of much significance in the present circumstances where there is little prospect of future cooperation. The third point is that if an order for costs is made, it may diminish what was called in argument the cake, the total amount of money that is available for the welfare and support of the child. That may be so, although where legal aid is involved (as here) it may be that an order for costs may mean that the father has less money, and if there is no order for costs the mother will have less money because of the legal aid board's charge upon the house. The time for determining that in the present case is surely when the father's means are assessed. It can be determined then whether it is reasonable for him to have to pay anything, and if so how much, towards the mother's costs; and the impact of such an order upon the total amount of money that is available for the welfare and support of the child can be considered.

The real point that has been argued before us seems to me to be this: the judge evidently found that the father had behaved unreasonably in the litigation. I do not doubt that Mr R genuinely believes that his arguments are perfectly reasonable. I do not question his good faith, but I am afraid I do agree with the judge that they did not, in reality, represent a reasonable attitude for the father to take. Therefore, I think we must uphold the judge's order in that respect.

In the result the appeal will be allowed in part. That is to say the order for payment of the mother's costs will be deferred until there has been a determination in terms of section 17(1) as to what amount, if any, it is reasonable for Mr R to pay.

ORDER: Appeal dismissed. Appellant to pay one third of the respondents costs -- subject to determination under section 17 (1).

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