England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAIDSTONE COUNTY COURT
(HIS HONOUR JUDGE HARGROVE QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 12th March 2002

Tuesday, 11th March 2002

1. LORD JUSTICE THORPE: This is a renewed application for permission to appeal which was perhaps encouraged by my paper order of 14th February. I received on that day an urgent application for a stay in relation to an order made by His Honour Judge Hargrove QC, sitting in the Maidstone County Court, on 11th February, transferring the care of a ten-year old girl from mother to father. I refused the stay as well as the application for permission to appeal the residence order saying that the judge's decision was not only a possible outcome within the exercise of the court's discretion, but a strong possibility, given the terms of the CAFCAS report. I continued:

"However the costs order may be more vulnerable. If ground 9 is to be pursued I direct an oral hearing on notice with appeal to follow if permission granted."

2. Mrs McCleod, for the applicant, has sensibly accepted the refusal of the application for permission to appeal the residence order, and the transfer order by the judge on 15th February has duly taken place. However, she takes advantage of my addendum setting out this oral hearing on notice. Mrs McCleod has said everything that could possibly be said in support of the application for permission. Certainly, as it was put to me on 13th February, it read rather well.
3. In her grounds of appeal dated 13th February, she said:

"The learned judge's order that the mother pay half the father's cost was an unusual order. At all material times the mother was acting as a litigant this person and therefore entitled to a degree of generosity particularly in circumstances where she was defending any change to the existing residence of her child and was acting in good faith in her child's best interests. In view of the fact that the CAFCAS report have not been made available until after 31st January, the mother was not unreasonable in defending the father's application."

4. That presentation certainly appealed to me as demonstrating at least the possibility of judicial error. But in the interim we have received a full skeleton in response from Miss Campbell who suggests unreasonable conduct on behalf of the mother in all sorts of manners not identified by the judge.
5. It is necessary to record the essential events preceding the fixture. The fixture had been set up by a district judge's order on 12th November 2001 in an emergency following an unseemly dispute between the parents at the conclusion of a contact visit. The district judge also set a time estimate of one day for the hearing and he requested a further CAFCAS report. A further report was necessary because, since the previous court order committing A's care to her mother on 15th January 2001, the mother had relocated from Kent to Gwent in October 2001, a relocation which obviously put considerable strain on the arrangements for contact between A and her father.
6. The welfare officer's report was made available on 29th January. Although recognising that there were issues on both sides which necessitated a judicial inquiry, she went on to record that whilst the father had accepted the contents of her report the mother believed her conclusions to be ill-founded and erroneous. Those conclusions were that the strength of A's wishes and feelings out-weighed other factors. The nature of the relocation to Gwent had reinforced A's fear that she was being separated from her father with whom she has particularly strong bonds. She went on to explain that she had discussed the case with her predecessor who shared her view that the fundamental change in circumstances justified a change in recommendation, namely, that father rather than mother should have the residence order.
7. The mother's reaction to this was on any view towards the extreme. She compiled a bundle of fresh material which includes transcripts of telephone conversations between A and her father and an additional statement from the maternal grandmother. Largely as a result of the length of the transcripts of telephone conversations the bundle contains over 200 pages. It was served on about 1st February not only on the court, but also on the father's solicitors and the court welfare officer. Accordingly, in the relatively brief ten days that followed, the court welfare officer and those representing the father had to digest and deal with this fresh material.
8. The case on the 11th February presented the judge with a difficult management problem. The mother, as well as serving this bundle of additional evidence, requested an adjournment, a request which the court refused. The judge made it plain that he had only one day to give to the case and that the time estimate must stand. The mother sought to call a number of witnesses and the allocation of the court's day, as explained by Miss Campbell, was certainly not ungenerous to the mother.
9. Although the ground of appeal in relation to costs which I have read out suggests that the mother was at all material times a litigant in person, the reality is that she had instructed solicitors on 8th February and she was ably represented at the trial by Mrs McCleod who had at the previous hearing in January 2001 acted as her McKenzie friend.
10. The judge sat late in order to dispose of the case. Indeed, by the time he concluded judgment and came to the issue of costs it was already 7.00pm. The application for costs was dealt with shortly by Miss Campbell. She simply said that she appreciated that ordinarily there would not be a costs order in a children's case but bearing in mind the strength of the recommendations in the welfare officer's report she sought at least a contribution against the mother. The judge invited Mrs McCleod's submission and she said this should be just a normal costs situation where each party bears its own. Clearly both parties were pursuing this matter in what they believed to be the interest of the child and therefore there should not be any order for costs in that respect.
11. The judge dealt with those submissions most briefly. He said, and I am afraid the transcript is uncorrected and we have to struggle to make sense of the first paragraph, but read literally it says:

"I consider that this case, the CAFCAS officer's report and the care which has obviously been taken for any reasonable person taking the view that officer's report should be followed.

I further take the view that certainly that situation must have been crystal clear after the CAFCAS's officer had given her evidence, and the manner in which her evidence was given which was thoroughly persuasive. In all the circumstances, I consider that the proper order here is that the mother shall pay one half of the father's costs of these proceedings."

12. It can of course be said that the judge has there failed to spell out what is an essential prerequisite to the exercise of a discretion against a party in private law proceedings. That necessary prerequisite is unreasonable conduct in the course of the litigation. So much is clear from the authority which both parties rely upon, namely the decision of this court in Re G (Costs: Child Case) [1999] 2 FLR 250. The headnote is perfectly plain. It reads:

"... although it was unusual to order costs in a family case, such an order could be made against a party who had behaved unreasonably in the litigation...In ruling on the question whether pursuit of an application had become unreasonable, a greater degree of generosity might be appropriate where the litigant was acting in person than where the litigant was legally aided with the benefit of advice from counsel and solicitors. If a parent went beyond the limit of what was reasonable to pursue the application before the court and it was appropriate to take the unusual step of ordering costs against that parent, it ought to be clear on the face of the transcript, either in the judgment or preferably in the order for costs, why the court was departing from normal practice."

13. In the present case the reference to "clarity in judgment or in the order" is particularly apt. The passage from the headnote reflects what Butler-Sloss LJ said at 253E. These are her words:

"... because it is an unusual order, it ought to be clear on the face of the transcript, either in the judgment or preferably in the order for costs, as to why it is that the normal situation is not being followed in this case."

14. Here the judge's ruling on costs is opaque, certainly in the form that it has emerged in the present transcript. Obviously the impact of the court welfare officer's oral evidence hardly bore on the question of costs since she only testified at the opening of the only day.
15. The notion that it was unreasonable in the mother to have pursued her case in the face of the recommendation that I have read seems to me to be unsustainable as Mrs McCleod rightly submits. These cases are decided by judges and not welfare officers, and it could never be unreasonable for a mother who was faced with an application for the transfer of the care of a ten-year old daughter to put that decision before the judge despite a recommendation from a reporting officer, even as strongly worded as was this report. So it is to the judgment that we must go to see if there is justification for a finding of unreasonable conduct of the litigation. It is to be said in passing that this is plainly not a case that attracts the greater degree of generosity appropriate where a litigant acts in person to which the court referred in Re G. The essential appraisal must be of the period immediately preceding the trial when the mother was either represented or on the verge of being represented by her present team.
16. Turning to the judgment itself the crucial finding against the mother is to be found at page 7G. This is the citation:

"I have therefore to make a judgment about the accuracy of both parties. Both were emotional about the child. The mother however has allowed her wishes to distort the accuracy of her recollection. She has made a number of totally unfounded allegations, for example against Mrs Jackson. She has alleged, I take this merely as an example, that Mrs Jackson made arrangements to see A behind the mother's back. That was untrue and the mother must have known it was untrue when she urged this in a separate statement after she had received the CAFCAS's officer's report."

17. That is a clear finding. Mrs McCleod says that there was a difference of recollection between her client and the welfare officer. If that was the case it was plainly resolved by the judge's finding. That is, in my view, sufficient to satisfy the essential prerequisite to the exercise of a discretion in the field of costs, namely a finding of unreasonableness on the part of the parent condemned. This is a clear finding. It not only embraces the mother's conduct prior to the delivery of the report on 29th January, but also her behaviour thereafter in compiling a statement refuting the court welfare officer's findings and in preparing the extensive bundle of additional material which had to be digested by all concerned in the case, at an inevitable cost in a world in which all lawyers operate on time-costing.
18. Despite the lack of clarity in the judge's reasoning when ruling on the costs application, I am in no doubt at all, looking in combination at that transcript together with the principal transcript, and bearing in mind that the judge was only delivering an extemporary ruling on the briefest of submissions, and further bearing in mind that he was having to do this at 7.00 in the evening, that there is perfectly adequate material to support his discretion and conclusion, and I would refuse this application for permission.
19. MR JUSTICE NEUBERGER: I agree with my Lord for the reasons that he has given. I do not think there is anything I could usefully add. I, too, would not grant permission to appeal until we know the full facts.
(Application refused; costs to be assessed by a costs judge if not agreed).