England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WANDSWORTH COUNTY COURT
(His Honour Judge Walker )

		Royal Courts of Justice Strand London WC2 Wednesday, 3rd July 2001

1. LADY JUSTICE HALE: This is a father's application for permission to appeal and an extension of time in which to appeal against part of the order of His Honour Judge Walker in the Wandsworth County Court on 15th February 2001. He only requires an extension of time of four weeks, and the reason that he has given is that he was misinformed by the county court that he had 28 days in which to appeal, so if there is a real prospect of success in the appeal I would extend time.
2. The order was made on his application to discharge a residence order in relation to two boys, E who is aged 9, and E who is aged 6. That order was made by consent in 1998, while the mother and the boys were living in this country and the father was working in Japan. This was in a sense the wrong way round because the mother is Japanese and the father is British. That order provided for contact with the father's extended family and for holidays in Japan with the father.
3. The father returned to this country the next year. The parties lived separate lives under the same roof for some time. Detailed provision for the father's contact was made in an order of 6th December 1999. This was on the assumption that they remained under the same roof. Divorce proceedings continued and eventually ancillary relief matters were settled. The wife moved out of the former matrimonial home. There was a holding order for contact made by consent on 25th September 2000. This involved the boys alternating between the parents day by day.
4. The father wanted there to be no residence order or a shared residence order. The court welfare officer's report was not unsympathetic to that proposal. However, the judge decided that the hostility and distrust between the parties was so great that that was not a viable option and that there would have to be a residence order. He therefore maintained in force the residence order made in 1998 but made a fresh contact order. This was, at least in the short term, extremely generous, ordering two out of three weekends to be spent with the father. This was a different contact order from any of those made previously. The judge also ordered the father to pay 25 per cent of the mother's costs. The father wishes only to appeal against the costs order.
5. This court rarely interferes with the exercise of the lower court's discretion on costs but it may do so if the lower court has erred in principle. The normal principle in civil proceedings, although there are elaborations of it, is that costs follow the event. That is not the usual practice in child cases. The normal practice in child cases is to make no order for costs. The reasons for that are explained in a decision of the Court of Appeal in R v R (Costs) (Child Case) [1997] 2 FLR 95 at pages 96 and 97 in what happens to be a judgment of my own. This emphasizes two of those reasons. The first is that the court is concerned to discover what will be best for the child. People who have a reasonable case to put forward as to what would 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. The second reason is that 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. That case went on to emphasize that in suitable cases the court can make a costs order, for example, where there has been unreasonable conduct in the litigation by one of the parties or there is a substantial disparity of means between them.
6. In this particular case the judge seems to have relied upon two points. The first was that costs should follow the event. The difficulty here is in identifying what was the event. The father failed in his application to change the residence order but he got a contact order which was different from any of the previous contact orders and that was what in his view the case was all about. He says that the mother would otherwise have insisted on the 1998 contact which was much more limited and unsuitable in the circumstances and that her witness statement agreeing to alternate weekends was served very late in the day. The second consideration mentioned by the judge is that there had been a "degree of unreasonableness" on the part of the father. However, he does not explain what that was. I do not, on the basis of the material before me, understand what he can have been referring to.
7. In those circumstances, there seems to me to be a real prospect of success in an appeal. I grant permission and the required extension of time. The father recognizes that if an appeal fails he will be even worse off because he will be at risk of having to pay the costs of the appeal because the principles relating to appeal costs are different from those in first instance hearings. Nevertheless, it is a matter for him whether he wishes to take that risk.
Order: Applications allowed; copy of judgment to be provided to the applicant.